SAN FRANCISCO A federal appeals court this week considered the validity of a Nevada law forbidding most anonymous campaigning.
But a three-judge panel of the 9th U.S. Circuit Court of Appeals, during oral arguments May 15, appeared as if it was going to dodge the issue of whether the quest for clean elections trumps free speech.
The case, ACLU v. Heller, has broad ramifications, since other states the circuit covers including Alaska, California and Washington prohibit some form of anonymous campaigning. The laws generally outlaw political mailers and billboards that do not say who paid for the message.
During 40 minutes of questioning, two of the judges suggested that the American Civil Liberties Union does not have the right to bring the case since the group's speech was not curtailed. The ACLU said it brought the case to protect others whose speech may be chilled because of the law.
The judges also wondered whether the Nevada Supreme Court should first interpret and clarify who is covered under that state's 1997 anonymity law. Only then could the First Amendment issues of speech be litigated, the judges said.
"Why shouldn't we let Nevada interpret its own statute?" asked Judge Procter Hug Jr.
Allen Lichtenstein, an ACLU attorney, told the judges the circuit should decide the First Amendment issue despite the ACLU not having a client in the case. "This is clearly a federal question," Lichtenstein said.
The case reached the judges following a lower court's decision upholding Nevada's law. U.S. District Judge David Hagen ruled that the First Amendment protects anonymous distribution of ideas, but that does not mean "anonymity is an absolute right."
Clark County Commissioner Lance Malone blamed his 2000 re-election defeat on the circulation of anonymous political fliers sent to 39,000 voters in his commission district. The anonymous flier, sent by a Las Vegas gambling concern, Station Casinos, featured a drawing of Malone with money stuffed in his clothes with the caption: "You Just Can't Trust Lance Malone."
The anonymous flier was in response to Malone switching positions and supporting a controversial casino in Spring Valley.
Todd Brice, Station Casinos' attorney in Las Vegas, said his client admits it was behind the flier. "The only question is whether this law violates the First Amendment," Brice said in an interview.
Station Casinos is fighting Nevada's law in state court and is not a party to the case argued this week. The state case has yet to go to trial, Brice said.
The nation's courts have upheld some limits on political speech, including barring campaigning near polling places and backing regulations requiring campaigns to disclose their donors.
Still, the U.S. Supreme Court, in its 1995 decision McIntyre v. Ohio Elections Commission, struck down an Ohio law barring anonymous campaign fliers. That ruling, in the case of an Ohio anti-tax activist campaigning against a local school tax, cited an American tradition of anonymous pamphleteering dating back to John Adams, James Madison and Thomas Paine, and said the right of anonymous political speech outweighed the state's need to identify the source to the public.
But Nevada and other states argued that their laws are not covered by the Supreme Court decision because they do not target individuals who use their own money, or those unaffiliated with any campaign.
"Groups pose a different threat to the political system than do individuals," argued Paul G. Taggart, a Nevada Deputy Attorney General.
The court did not indicate when it would rule.