Free-Speech-Hating Thugs Lose Again

by Stephen Klein

On Friday the Institute for Justice (IJ) won an important free speech victory against the Washington Public Disclosure Commission (PDC). IJ charitably refers to the PDC as "bullies." I think a more apt description of the PDC is "free-speech-hating thugs." Following a victory against such opposition, gloating is not only appropriate, but perhaps necessary.

The case came about after the PDC lost a free speech case represented by IJ, and then tried to avoid (or at least muck up) paying attorneys' fees in that case by accusing the plaintiff of not reporting IJ's representation as a "contribution" to her organization. The gist of this accusation was to turn legal representation upside down—particularly constitutional pro bono (free) representation—by suggesting attorneys stand exclusively for particular causes and not for overarching principles like free speech. I summarized the problems with this theory two years ago:

[I]f this new bit of "mere disclosure" takes root, the American Civil Liberties Union will be shocked to learn of their "contributions" to former Republican Senator James Buckley and, far more uncharacteristically, the National Socialist Party of America. Members of the NAACP will finally have all the dirt they need on other members who make "contributions" to the Ku Klux Klan.

The PDC's theory further threatened to shut down pro bono representation entirely in some cases, as the cost of litigation often far exceeds contribution limits placed on political candidates, campaigns and certain political committees.

Thankfully, although the wheels of justice move fast as molasses, the Superior Court of the State of Washington (Pierce County) shut down this inquisition in summary judgment:

Defendants' treatment of free legal assistance to a political committee in a federal civil rights lawsuit as a "contribution," as that term is defined in [Washington law], is unconstitutional under the U.S. Constitution. Defendants are permanently enjoined from applying any cap on the amount of free legal services a political committee may receive in a federal civil rights case. Defendants are also permanently enjoined from requiring Recall Dale Washam or any other political committee to report free legal services as provided by the Institute for Justice, Oldfield & Helsdon PLLC, or any other attorney in a federal civil rights lawsuit as a campaign contribution. Plaintiffs are prevailing parties for purposes of attorneys' costs and fees.

Here's hoping the PDC doesn't try to appeal its feeble "theory."

Alas, shutting down free speech by expanding the breadth of political "contributions" does not end with the PDC. The current John Doe inquisition in Wisconsin threatens anyone who (1) agrees with a political candidate, (2) communicates with someone in the political candidate's campaign and (3) spends money advocating shared beliefs. The Wisconsin inquisition is based on an equally convoluted, baseless expansion of what constitutes a "contribution" to a campaign. Who knows: after the Wisconsin thugs lose, like Washington they just might find solace in stretching the case out for two years by coming after anyone who files a "friend-of-the-court" brief on behalf of Club for Growth or similarly "contributes" to whatever campaign is then in effect.

These cases involve real people who are threatened by civil and sometimes criminal penalties, so of course I don't really want these cases to last long—indeed, they take far too long as it is, letting the threats of (usually) unelected thugs hang over the heads of people who just want to participate in American Democracy. Since these drunk-with-power (and sometimes other things) thugs enjoy sovereign immunity for pretty much any legal theory they present, and the attorneys' fees they eventually shell out are paid by taxpayers, we should at least give them a small, miniscule taste of humiliation by rubbing their noses in their embarrassments.

So, PDC: You lose. Again. Next time, read this and spare real lawyers the trouble of correcting you.