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Sunday, September 14, 2008
The backstory of the state’s ban on campaign smear sheets
The Atlanta Journal-Constitution
We prefer our electioneering to be conducted along something like the Marquess of Queensberry rules. Clean punches thrown above the belt.
So quite a ruckus erupted this summer when it was learned that state Sen. John Wiles, a conservative Republican from Kennesaw, had slipped through the Legislature a provision that deleted a state ban on anonymous political literature.
Under Georgia law, it is now legal to assault tens of thousands of mailboxes with scurrilous descriptions of the other candidate — perhaps he does terrible things to pigs with lipstick, perhaps she is eager to declare war on Russia — and never sign your name to the accusations.
Secretary of State Karen Handel, the Republican sponsor of the legislation that Wiles hijacked to enact the change, has pronounced herself extremely disturbed. Ditto several lawmakers, both Republican and Democrat, who say that an American sense of fair play requires repeal of the Wiles measure.
But no one is talking about this: Long before this summer, Attorney General Thurbert Baker — a Democrat, let’s remember — was advising state officials that Georgia’s ban on anonymous political literature was unconstitutional and couldn’t be enforced.
In other words, like it or not, Wiles and smear sheets may have the U.S. Supreme Court on their side.
Neither Baker nor Handel will discuss the matter. We know Baker’s opinion is contained in a letter he sent to her in April 2007. But the attorney general says he can’t discuss legal advice given to a client, and the secretary of state has declined to divulge the letter’s contents.
We do know that last December, Mike Jablonski was half-asleep in his usual back pew at a meeting of the State Election Board. Jablonski, 57, is the general counsel for the state Democratic party and an adjunct professor of political communication for Georgia State University.
The election board was droning through a case against an Avondale group that had failed to list the organization’s officers on campaign signs — which under the law qualified as “literature.”
Jablonski was startled awake when he heard an official for Handel’s office declare that, based on Baker’s opinion, prosecution wasn’t recommended.
The minutes of the meeting back Jablonski up. “We should not attempt to enforce this law as [the U.S. Supreme Court] has indicated it is inappropriate,” Shawn LaGrua, inspector general for Handel, is quoted as saying.
The 1995 Supreme Court case cited by Baker is McIntyre v. Ohio. It concerns a woman who was fined $100 for distributing anonymous flyers against a school tax. She’d forgotten to add her name to some of the sheets.
The McIntyre case has already been used to shut down a 1996 Georgia law that — if enforced today — would require bloggers on the Internet to use their real names.
“Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority,” wrote Justice John Paul Stevens for the McIntyre majority.
Antonin Scalia was one of two dissenting justices. “I can imagine no reason why an anonymous leaflet is any more honorable, as a general matter, than an anonymous phone call or an anonymous letter. It facilitates wrong by eliminating accountability, which is ordinarily the very purpose of the anonymity,” Scalia wrote.
We’ll see a local version of this split in January.
Handel, who is eyeing a run for governor, has just begun a “transparency in government” program.
Regardless of the attorney general’s advice, she is “adamantly” opposed to what Wiles has wrought, and will work with both the House and Senate to restore the ban on anonymous political literature, a spokesman said.
Wiles points to his friends on the U.S. Supreme Court. “I will not support any effort to regulate anonymous political speech,” he said.
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Tina Fey as Sarah Palin: ‘I can see Russia from my house.’
The Atlanta Journal-Constitution
For those who couldn’t stay up to watch “Saturday Night Life” last night:
