Colorado’s Coalition for Secular Government isn’t exactly the largest group around. Its description is a “small think tank” consisting mostly of Diana Hsieh, who holds a doctorate in philosophy. In her effort to do things in accordance with the law, she registered her “group” with the state.
While it was self-funded initially, Dr. Hsieh ultimately sought donations online, which ranged from $200 in 2008 to $3500 in 2014. Under Colorado law, that’s sufficient to require it to be subject to onerous state regulation, think SuperPac, because of the state’s abiding interest in making sure that political speech, fueled by secret big money sources, never happens without its oversight.
When the push for Colorado’s “Personhood Amendment,” to limit a woman’s right to an abortion, was proposed, the CSG took action:
CSG recently released the paper, “The ‘Personhood’ Movement Versus Individual Rights,” which Diana Hsieh and [Ari Armstrong] coauthored. The paper argues (among other things) that the so-called “personhood” measure on Colorado’s ballot, Amendment 67, would violate women’s rights to seek an abortion, to use the birth control of their choice, and to seek common in vitro fertility treatments. The paper also makes the philosophic case for a woman’s right to seek an abortion.
As it turned out, the CSG white paper was quite successful, being downloaded more than 12,000 times, not to mention the unknown number of times it was viewed online. Colorado took notice, because you can’t have someone opine on a potential ballot initiative without filling out state forms. If that was allowed, anybody could have an opinion and express it freely. It would be anarchy.
The question of whether the CSG was required to comply with “Colorado’s byzantine registration and reporting requirements in order to finance and distribute an issue paper that argues against a statewide ballot measure” came before Senior United States District Judge John Kane. Judge Kane was not overwhelmed by the need for state control.
While Colorado concedes that the CSG isn’t exactly a major player, falling instead into the “small-scale” sort of group that shouldn’t make it onto the regulatory radar in the first place, the state notes that, in proof of the efficacy of its law requiring registration for any group that received more than $200 in donations, the CSG’s “personhood” paper was, well, influential. That makes it ripe to regulate. Judge Kane’s ruling makes the point that demands to be made:
The Secretary’s point is perplexing: is he suggesting that the effectiveness of political speech—the fact it resonates, generates interest, and is downloaded from the internet by individuals wanting to read it—somehow elevates or enervates the public’s informational interest in its disclosure? The more vibrant the public discourse the more justified the burdening of the speech is? Surely not. It must be remembered by those older than Ms. Hsieh that the internet is the new soapbox; it is the new town square. CSG’s “personhood” paper is Tom Paine’s pamphlet. It is the quintessence of political speech.
To the extent that the internet levels the playing field of thought, this point is of crucial significance to the perpetuation of free speech. Many who claim to be fans of the Bill of Rights are the first to challenge political speech they deem driven by inappropriate interests. These are the calls giving rise to regulatory regimes of issue advocacy groups, such as CSG. After all, if it got a $200 donation from the Koch Brothers/Soros Conspiracy, wouldn’t we all need to know so we could scream about how they funded the opposition to the ballot initiative? You bet.
Bear in mind that the same regulatory scheme that’s vital to preventing world hegemony by the Trilateral Commission applies to Diana Hsieh and her CSG as well. That’s why advocates screaming about the sky falling, holding up their nightmare scenarios, can’t be allowed to ignore the ramifications of their desperately-needed solutions, or deny the collateral damage.
As this matter arose in the context of a declaratory judgment, and thus provided relief to the CSG short of holding the regulatory scheme unconstitutional as written, Judge Kane was limited in his authority to kick the crap out of the grocery clerks in Colorado government. Even though, as he makes clear, they deserve it.
But the court did add in a kicker to make the state think twice about the efficacy of its stifling free speech:
This conclusion is so obvious, moreover, that having to adjudicate it in every instance as the Colorado Supreme Court implies is necessary itself offends the First Amendment. By setting in stone the uncertainty that precipitated this litigation in the first place, the Court’s interpretation chills robust discussion at the very core of our electoral process. I am without authority, however, to undo the damage done because Sampson provides an adequate and binding legal standard under which CSO’s specific constitutional claims may be decided. The wholesale invalidation of Colorado’s $200 contribution threshold for ballot issue committees. though warranted. would go beyond my charge and be improvident. What I can do, however, is award CSG its attorney fees under 42 U.S.C. § 1988 and advise state lawmakers that the Secretary will be on the hook for fees every time a group, like CSG, falls under the $200 trigger for issue committee status and has to sue to vindicate its First Amendment rights.
Perhaps the threat of paying the tab will make the grocery clerks choke a bit before deciding how vital it is to the state’s interest to regulate individuals like Diana Hsieh, today’s Tom Paine, because their speech is too persuasive. Then again, it’s not like the money comes out of the grocery clerks’ pockets.
H/T Stephanie West Allen