Montana's illegal prohibition on free speech

Last week, the Montana Supreme Court overturned an earlier victory for free speech rights won in Helena district court by American Tradition Partnership, Montana Shooting Sports Association and Champion Painting Inc. over government bureaucrats' right to bar individuals and companies from airing political opinions under a non-profit or for-profit corporate umbrella.

The ban on speech that Montana's court temporarily restored was enacted before Prohibition, in response to this state's embarrassing history of political corruption by state politicians and newspapermen who were bankrolled by the copper barons in a bygone era.

Doug Lair

The political elite in Helena and state news editors, who are the ban's de facto beneficiaries, rejoiced at the reinstatement of a law that reasserts government and the press as the premier gatekeeper institutions controlling information about policies impacting — and paid for by — the "little guy."

The power-brokering establishment should savor their victory while they can — which shouldn't be long.

The detailed and legally grounded dissent by the Montana Justices Baker and Nelson opinion presents clear grounds for immediate reversal by the pro-free speech majority on the U.S. Supreme Court.

As Nelson points out, in the U.S. Supreme Court's opinion decided just two years ago this month, Citizens United v. Federal Election Commission, "... [E]very one of the Attorney General's arguments — and this Court's rationale for adopting those arguments — was argued, considered, and then flatly rejected by the (U.S.) Supreme Court."

The majority opinion conjures up tired images of "Copper Kings" and the days long ago when union organizers and company-hired guns openly exchanged violence in the streets of Butte and Anaconda. Relying on this, the court attempts to justify a "Montana exception" to the First Amendment.

In throwing out the speech ban earlier, Helena District Judge Jeffrey Sherlock rejected the attorney general's arguments invoking this nostalgia, and freedom-loving Montana citizens should as well, because as U.S. Supreme Court Justice Louis Brandeis declared in his famous treatise on free speech in the watershed 1927 decision Whitney V. California, "… to avert the evil (of the dangers of unfettered speech) by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. … Such, in my opinion, is the command of the Constitution. It is therefore always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it."

The only emergency we perceive here is that five liberal justices in Helena are willing to run roughshod over the civil rights of their constituents. In exchange, citizens would be within their endowed rights and responsibilities to vote them out in future elections.

One of the keys to the logic behind the oft-misportrayed Citizens United decision, the case upon which ATP's free speech challenge is based, is that under a blanket ban on corporate expenditures that are not coordinated with candidates, the right of Americans (specifically in this case Montanans) to publish books and other communications discussing a candidate is also banned.

Book-banning flies in the face of near-universal appreciation of what it means to be a free citizen — yet, "Hillary — The Movie" was in fact prohibited from screenings under a national ban on corporate expenditures. The documentary concerning the former first lady was produced by the aptly-named Citizens United, a group of individuals who wanted to tell a side of the story they believed was being ignored by the mainstream media.

That ban was struck down, but the left-wing majority on Montana's high court defied the nation's highest court, and the U.S. Constitution itself, sending a message to all the "little people" who want to formally band together without the permission of a government bureaucrat: No books, no mailers, no movies for you!

What lifting Montana's speech ban will do is allow mom-and-pop, medium-size, and grassroots corporations of all stripes — who cannot afford a phalanx of lawyers and lobbyists to comply with unconstitutional speech restrictions — to freely assemble as an entity and voice their opinions without fear of government retribution.

ATP members relish the opportunity to remind the speech censors in Helena that the supreme law of the land is the United States Constitution, despite the majority's weak claims that events from another era grant them immunity from the inalienable provisions in this nation's founding legal document.

We are optimistic that a summary reversal by the U.S. Supreme Court will clear the way for ATP's other pending free speech victories on behalf of everyone in the Treasure State — and we hope, a more level playing field for a brisk public debate about jobs and other election-year issues.