Wednesday, September 17, 2008

The ACLU Takes, Gives Right Back

Man! The day after I'm expressing my disappointment over the ACLU for its position on the 2nd Amendment, its Indiana chapter has me singing its praises. Go Ken Falk!

The target of its ire? A bevy of local ordinances in the doughnut counties that prohibit citizens from posting candidate yard signs any more than 30 or 45 days before an election. Jon Murray with The Star has the details.

These laws are preposterous. First, most of the ordinances are "content-based." If you advocate for or against a candidate, you can't put your signs up earlier than the allowed time frame. BUT there are no time restrictions for realty signs, construction signs, garage sale signs, and even non-candidate political signs, such as pro-life or pro-choice messages. What are these councilors trying to protect us from? An eye overdose of red, white, and blue?

Putting aside the obvious unconstitutionality of these ordinances, the sign restrictions inherently favor incumbents, who have the advantage of getting their "names out" through the official actions of their offices.

For many local races, the yard signs ARE the campaign. While I personally doubt the efficacy of yard signs relative to other media (give me $1,000 worth of well-done direct mail over $1,000 worth of yard signs any day), you can't dispute the psychological effect from seeing tons of them. They can signify broad support and drive people who might otherwise be disinterested to investigate the named candidate further.

Moreover, the more "local" an election is, the more critical word-of-mouth is to the outcome. A yard sign can be a meaningful endorsement to one's neighbors. Sure, if the Republican precinct committeeperson has a sign supporting every candidate in his party, that just says, "I'm a staunch Republican." But a yard sign in a man or woman's lawn who has NEVER voted in a primary or put a sign out? That might make me take notice. That might make me ask them why they felt strong enough this time to put that sign in their yard.

My only disgreement with the ACLU of Indiana is that it filed its lawsuit in federal court. I suspect they did this to address multiple ordinances from multiple counties in one suit. However, a lawsuit in state court would have facilitated the ACLU raising one claim -- violation of the Indiana Constitution, Article 1, Section 9, which states:

No law shall be passed, restraining the free interchange of thought and opinion,
or restricting the right to speak, write, or print, freely, on any subject
whatever: but for the abuse of that right, every person shall be

I don't want to bore the non-lawyers with all the specifics, but Indiana's free speech guarantee, in my opinion, offers MORE protection than the 1st Amendment when political speech is at issue. If a particular type of expression is deemed "core" political speech, the State must then "demonstrate that its action has not materially burdened the claimant's opportunity to engage in political expression." The Indiana Supreme Court already said in Whitting v. State, 669 N.E.2d 1363, 1370 (Ind. 1996) that expressive activity is political if "its point is to comment on government action, whether applauding an old policy or proposing a new one, or opposing a candidate for office . . ." There's your yard sign, folks!

Randall Shepherd, the Chief Justice of our Indiana Supreme Court, loves to breath independent life into the Indiana Constitution, which, on many individuals rights, offers more protection than the federal constitution. It's a shame he won't get the chance here. I would have liked to see him take Article 9 out for a spin again.

Since the "core political speech" is a fait accompli, the various city councils would bear the burden of showing your opportunity to engage in political expression has not been materially burdened. NONE of these city councils could make this showing. The only alternative for someone who wants you to know he supports candidate X would be to print fliers at greater cost and try to hand them out as cars go whizzing by.

Separately, people usually engage in free speech for a purpose, which makes these date restrictions particularly problematic. What if the goal of my neighbors and I is to get enough people interested in our unusual endorsement that they register to vote for the first time to support our candidate? Well, in Indiana, the registration deadline is 29 days before the election, which means anybody who will have been persuaded to vote will have missed the window.

These ordinances are silliness from people who don't like looking at political signs, but if we restrict political speech for a cause so flimsy, Lord help us when we face REAL challenges, such as the evils of terrorism.


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