Colorado’s Opportunity to Protect First Amendment Rights (Guest Commentary, Center for Competitive Politics)
Colorado’s Opportunity to Protect First Amendment Rights was written by Tyler Martinez and originally published by the Center for Competitive Politics, and is re-published here as a guest commentary with the permission of the original author/publisher.
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Colorado’s Opportunity to Protect First Amendment Rights
May the government ban the publication of books if they contain only one sentence of express advocacy, such as “Vote for Smith”?
At the oral argument for Citizens United v. FEC, the federal government argued that campaign finance laws could ban a corporation, presumably including book publishers, from producing a book with even one sentence of express advocacy. The government’s stance was so shocking that the U.S. Supreme Court ordered another set of briefings and arguments on that issue, and today we have the famous decision upholding the right of corporations to make independent expenditures.
This May, a similar question will be heard by the Colorado Supreme Court in Coalition for Secular Government v. Gessler. This case centers around a small nonprofit, run by Diana Hsieh, a doctor of philosophy, who wanted to discuss a secular understanding of the principles of life, liberty, and property. To do this, Dr. Hsieh formed a nonprofit corporation, which she named the Coalition for Secular Government (CSG). CSG commissioned a paper discussing its philosophy regarding human personhood, written by Dr. Hsieh and her friend Ari Armstrong. On behalf of CSG, Dr. Hsieh and Mr. Armstrong raised money from their friends to help pay for the costs of writing and publishing the paper. They also ran some Facebook ads and made flyers to let people know about the paper.
The paper is 32 pages long, with 176 endnotes. It makes philosophical arguments concerning the complex public policy debate surrounding the definition of personhood. The paper used a proposed Colorado ballot measure as a backdrop for its discussion on the issue. The paper concludes with a single sentence of express advocacy: “If you believe that ‘human life has value,’ the only moral choice is to vote against Amendment 62.”
This one sentence of express advocacy meant that CSG may be forced to register as a issue committee with the state of Colorado. The state’s own briefing in the case has admitted that, but for this single sentence, the paper would go entirely unregulated by the Colorado government. While Colorado does not ban books, it does demand burdensome reporting and disclosure. Registration requires reporting the names and addresses of people who give more than $20 to help a cause—even if it is free help with Web design by a family member. Registration also requires documenting which post office an organization uses, and from which Office Depot it purchases printer paper.
The costs of failing to file these extensive reports, or not filing properly, can be extreme. One day, Dr. Hsieh’s house flooded and she was a day late with CSG’s required report. She then faced a $50 per day fine. Fortunately, this fine was waived, but only after needing to plead with the Secretary of State’s office. Even normal, non-flood-related compliance with Colorado’s byzantine filing system frustrated Dr. Hsieh and left her in constant fear of fines or lawsuits, just because she wanted to weigh in with her philosophical views.
This is not the first time the registering and reporting burdens required of issue committees has come up in Colorado. In the 2010 case of Sampson v. Buescher, a small group of residents outside of Parker, Colorado, came together to fight being annexed into the City of Parker. These individuals had raised less than $1,000 for their cause when their opposition challenged the failure of the neighbors to register as an issue committee.
In assessing the homeowners’ challenge, the Tenth Circuit concluded that Colorado’s issue committee disclosure and reporting requirements “substantial[ly]” burdened the homeowners’ First Amendment rights. The court relied on Citizens United and held that: “[t]he First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory rulings before discussing the most salient political issues of our day.”
Unfortunately, the state of Colorado failed to heed the Tenth Circuit, and CSG had to call the legal team at the Center for Competitive Politics (CCP) for help. The CCP legal team filed a complaint alleging that, even though CSG plans to raise no more than $3,500 for updating and publishing their public policy paper, the state of Colorado appears to demand that CSG register as an issue committee. Once registered, CSG will again face all of the burdens of reporting their friends and allies, naming where they bought envelopes, and facing lawsuits and fines from the state for making even the slightest mistake.
Interestingly, CSG’s case was initially brought before a federal court. But Colorado law is so ambiguous that the federal judge had to ask the Colorado Supreme Court just what the Colorado law means. As a result, CCP will be before the Colorado Supreme Court this May 8 arguing the merits of registering lengthy policy papers with only one sentence of express advocacy.
As the Citizens United Court noted, it does violence to freedom of speech when a citizen must hire an attorney just to be sure how to speak. Hopefully, the Colorado Supreme Court will agree with that principle.
The Colorado Supreme Court recently overturned the gun ban at state universities for concealed carry permit holders. In response, University of Colorado administrators, led by Chancelor Phil DiStefano, now wants the CU Regents to circumvent the Court by implementing a contractual clause in housing contracts which would forbid guns within any of the campus residence halls.
Normally, such a contractual waiver of rights might be acceptable to the courts – if it was truly voluntary. In this case, however, it is difficult to see how such a clause could be voluntary when CU requires its freshmen to live on campus for a year. Thus, for first-year students, the supposed contractual waiver effectively becomes an imposed regulation.
This would be an extraordinarily foolish policy to attempt. Forcing students to waive their Second Amendment rights in order to comply with campus housing requirements would effectively escalate CU’s dispute with the Colorado constitution into a full blown conflict with the Constitution of the United States and earn the ire of the U.S. Supreme Court.
In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court of the United States declared that the Second Amendment of the U.S. Constitution protects an individual’s fundamental right to own and keep a firearm -specifically within his home. Further, any law or regulation requiring guns to be stored at home in a locked container, trigger locked, or disassembled will violate Second Amendment rights. Because CU requires its freshmen to live in the campus residence halls for a year, these halls effectively become the students’ homes and CU must respect the rights articulated in the Heller case. CU cannot force students to waive fundamental rights. Any attempt to do so will only result in massively expensive and ultimately doomed litigation which the cash strapped universities can ill afford.
If CU truly wanted to ban guns in campus residence halls, it has only two options. First, it could abolish its residence hall requirement for freshmen, thus giving students a true choice as to where to live and whether to waive their Second Amendment rights. Otherwise, it could choose to provide armed guards and security checkpoints at the entrances to each residence hall to provide the protection that would otherwise come from being armed. Though both of these options would at least give the university a plausible justification for a policy banning guns in residence halls, they are by no means certain to withstand scrutiny under the Heller rule. The courts do tend to take a dim view of those who try to squash fundamental rights. It also seems especially inappropriate when coming from universities – the very institutions that best articulated and steadfastly championed human rights since the Enlightenment.
CU and other universities would be wise to embrace that lauded tradition and cease their opposition to the basic rights of our citizenry. Thus, instead of attempting to thwart the Second Amendment, universities might even profit by requiring firearms training and safety classes for campus residents to promote both safety and good citizenship. That would not only respect the rights of their students, it would teach them how to responsibly exercise those rights. After all, is that not one of the primary purposes of a Classical Liberal education?
Julian Dunraven is a corporate transactional lawyer and adjunct professor of Law and Criminal Justice at Everest College.