Home » About » Newsletters » November 1996
Political Speech Threatened Once Again
By Jessica J. Connor, Editor/Staff Associate
November 1996
Ray Smithers was shocked when he discovered that his state legislator had signed a petition condemning Walt Disney World Company for extending health benefits to the partners of gay and lesbian employees. After all, Smithers, a fifty year old gay Jensen Beach businessman, had struggled in the community to promote the equal rights of homosexuals.
But when Smithers and his partner of 17 years went to Kenneth Pruitt's office to confront the legislator on the petition, he was even more shocked to discover that Pruitt had not only signed the petition, but was proud of it.
"I was extremely angry when I heard that Pruitt was one of the legislators [who signed the Disney letter]," says Smithers. "We marched into his office and said, Hi, we're a gay couple...and we're your constituents whether you like it or not.'"
Pruitt reportedly made several derogatory remarks about blacks and homosexuals and Smithers left the office, outraged and threatening to oust Pruitt from office.
Says Smithers, "[Pruitt] said, Go ahead and try,' so I said, Let's try.'"
Smithers and partner Jerry Trowbridge immediately set to work, printing 1,000 bumper stickers at their own expense reading "Dump Pruitt Free Sticker Call (407) 3346556" and distributing them around the county.
Smithers knew he had the fundamental right to criticize his political representative. He was proud to live in a country where he knew he could say whatever he wanted about the government without fear of persecution or censorship.
So it came as a surprise when he received a formal notice from the Florida Elections Commission (FEC) threatening him with prosecution for his bumper stickers.
Florida Statute Section 106.143(1) prohibits anonymous political advertising. By printing up his 1,000 bumper stickers without identifying the nature and the sponsor of the sticker, Smithers allegedly violated the statute, which prohibits the "failure of a person to mark all political advertisements as a pd. pol. adv.' or a paid political advertisement' and to identify the sponsor." If the FEC determines that Smithers is in violation of the statute, he faces a fine of $1,000 per offense.
This is when Smithers called the ACLU.
Freedom of expression is essential to any democracy. America is a government by, of and for the people, and because of this it is necessary for the citizens of this country to have full reign of expression particularly when it comes to criticizing our government.
That full reign naturally extends to anonymous political speech. For although Americans have the freedom to fully express themselves, sometimes that expression can be dangerous for those who maintain "unpopular" opinions. The Iranian student who criticizes the Islamic fundamentalist leaders of his homeland, the Big Sugar employee who agrees with the pennypound sugar tax and the Athiest family who objects to school prayer may all face some form of retribution if their identity is known. Anonymity becomes, therefore, a protective cloak under which the citizens of this country can speak their minds without facing adverse, and sometimes lifethreatening, consequences. And it is under this cloak of anonymity that citizens such as Ray Smithers must be free to criticize a political leader without facing prosecution.
Ironically, the original purpose of the Florida Statute wasn't to curb free speech. Rather, it was to keep people from skirting campaign finance laws and making libelous statements during a political campaigns. Clearly, an unintended consequence has been the restriction on anonymous speech. Intended or not, however, it is unconstitutional.
And the Supreme Court agrees. In 1995, the U.S. Supreme Court in McIntyre v. Ohio Elections Commission reversed an Ohio Supreme Court decision imposing a $100 fine on individuals distributing anonymous campaign literature. Private citizen Margaret McIntyre opposed a proposed school tax levy in Westerville, Ohio. At a Westerville public meeting to discuss the levy, McIntyre passed out political leaflets she had made on her home computer asking voters to "Please Vote No" on the levy. She signed the leaflet from "Concerned Parents." Ohio courts had decided that this form of anonymous political speech was punishable by a $100 fine, but the U.S. Supreme Court found that anonymous political speech was protected by the First Amendment. In a 72 decision, the Court stated that a "statute that prohibits the distribution of anonymous campaign literature is a law...abridging the freedom of speech' within the meaning of the First Amendment."
This decision should have established a precedent that abolished the enforcement of the Florida statute. But the FEC refused to follow the ruling, reasoning that McIntyre was casespecific and did not apply to the Florida statute, partly because McIntyre involved a ballot issue and the Florida statute applies to a candidate race.
ACLU Sues For Smithers
The ACLU filed suit in the Second District Court of Leon County on September 25, 1996, on behalf of Ray Smithers. According to Larry Spalding, attorney for Smithers and Legislative Staff Counsel for the ACLU, the major issue in the case is to what extent a citizen can be anonymous and participate in the political process. By restricting anonymity, says Spalding, "the statute is an unconstitutional restriction on protected political speech."
According to Spalding, the McIntyre decision is much broader than how the FEC chose to interpret it. "We believe that McIntyre protects anonymous political speech," says Spalding, whether that speech is on a bumper sticker or on a leaflet, or whether it is a ballot issue or a candidate race.
Ray Smithers particularly feels that the statute directly violates his right to free speech and that it needs to be declared unconstitutional. "[The statute] is a tool to stop citizens from criticizing sitting politicians," says Smithers. "Political free speech is at the heart of what the Bill of Rights is all about."
Smithers may have to wait several months before his day in court, however. Two similar cases are currently being tried in Florida, Doe v. Mortham before the Florida Supreme Court and Roe v. FEC before the Federal District Court in Tampa. The FEC is trying to suspend action in the Smithers case until the Florida Supreme Court rules on Doe v. Mortham.
In the meantime, despite his pending $1,000 fine, Ray Smithers continues to distribute his bumper stickers in the sleepy ocean town of Jensen Beach in the fighting spirit of America's founders. And the ACLU is right beside him.
