By Jeff Knox
(March 15, 2017) The state of Maryland has prosecuted, convicted, fined, and sanctioned a pair of political activists for producing and delivering an automated phone message thanking a candidate for taking a particular position on a controversial issue. Everything said in the message was true and accurate, but the ad hoc organization the two men created to carry their message was ruled to be invalid, so the disclaimer at the end of the message declaring the group responsible for the message, was ruled to be inadequate to meet Maryland’s campaign laws. The men, Dennis Fusaro and Stephen Waters, were sentenced to 30 days in jail, 3 years of probation, and fines of about $1000 each, but they are appealing the conviction based on rights to free speech under the First Amendment and a corollary recognized by Maryland’s constitution. The cost and inconvenience of the appeal will far exceed the sentence, but Fusaro and Waters say that their prosecution and convictions raise serious constitutional questions and should not be allowed to stand.
The right to free speech is sacrosanct to Americans, except, it seems, political speech of a flavor disagreeable to the bureaucrats in charge. Back in the early days of the Republic our founding fathers valued political speech above all else – even above religious speech – and they routinely exercised that right anonymously. But today in America, campaign contributions, political advertisements, and producing electioneering materials are tightly regulated, and unlike voting, they require identification. Of course anonymous political speech hasn’t gone away completely. We still have some semblance of anonymity on the internet, even though though true anonymity online is very difficult, if not impossible, to achieve. The rich and powerful can still hide behind front-groups and layers of PACs and bundlers to conceal their involvement, but for Joe Average American, anonymous political speech is difficult and can be, as Fusaro and Waters found out, a criminal offense.
The gatekeepers of free speech in Maryland disapproved of what Fusaro and Waters chose to say during a County Council race in 2014. The duo did not advocate for or against any candidate, but they wanted to highlight one of the candidates’ position on certain issues, and they wanted to do it anonymously. The method of political speech they chose was an automated phone message, so-called Robocalls, and the way they cloaked their involvement was by forming an ad hoc association to take credit for the calls. They wrote a script, pooled their money, and paid for the calls to be recorded and delivered to a select group of people in the county. To meet identification requirements and disavow any connection to any other candidate, committee, or party, they included an obligatory statement at the end declaring that the ad was paid for and authorized by their ad hoc organization.
If Mike Bloomberg wants to impact a local political race, as he frequently does, he doesn’t buy a billboard or send out postcards with the message “I’m Mike Bloomberg and I paid for this political hit-piece.” Instead, one of his minions finds a few local people – or just moves to town and declares herself a local – and creates a front-group with a name like “Nevadans for Gun Safety.” Then Bloomberg gives money to Moms Demand Action for Gun Sense in America or Everytown for Gun Safety – or one of their subsidiary or related organizations – which passes the money on to the astroturf “local group” to buy ads saying what Bloomberg wants said. That is considered perfectly acceptable by the political speech police in Maryland and elsewhere.
What Fusaro and Waters did was no different. They formed an organization – which legally requires nothing more than agreeing to form it – contributed some money to that organization, and as principals in the organization, arranged to have their message delivered to local residents. The judge in the case noted that the two took pains to meet the requirements of Maryland election law, but he painted those efforts as attempts to skirt the intent of those laws because they did not identify themselves directly. The penalty he meted out to the two activists was even harsher than the prosecution had requested, because he said a message needed to be sent to future scofflaws who might want to express a political belief without clearly identifying themselves.
Legal observers say the case is unusual in several respects, and that it appears that Maryland is intentionally using the case to establish some legal precedents to make it easier to control political speech in the future. There is no shortage of case-law already on the books regarding free speech issues, but those precedents can be confusing and in some cases are contradictory.
Fusaro and Waters’ case has attracted some attention and assistance from a few civil rights groups, but none of the heavy hitters like the ACLU have waded into the case, probably due to the fact that Waters and Fusaro tend to advocate for “conservative” and libertarian positions that are not looked upon favorably by “liberal,” legal assistance groups.
The message itself, and Fusaro and Waters’ objectives in delivering it, should have no bearing on the legal case. There is no argument that the message was true and accurate. The only real bone of contention is attribution of the call to an informal organization that couldn’t be easily tracked down and its members identified.
Appealing this case is going to cost thousands of dollars, and your help is needed to fund the case. Losing the appeal – or not appealing at all – leaves a very dangerous precedent on the books, cutting deeper into your right to express yourself on political matters.
If you’d like to assist in this case, you can make a tax-deductible donation through www.RightsWatch.org. Every little bit matters – whether it’s a little bit of money to help with this case, or a little more encroachment on rights by politicians looking to protect their seats. Please donate if you can.