Amicus Brief: Arkansas Donor Can Challenge State’s Blackout Period

Courts should weigh in before First Amendment rights are trampled on, IFS says

September 5, 2019   •  By IFS Staff   •  
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Alexandria, VA – The Institute for Free Speech yesterday filed an amicus brief asking a federal court to allow an Arkansas citizen to make campaign contributions, within legal limits, at a time of her choosing. Arkansas resident Peggy Jones is challenging an unusual blackout period in state law that prohibits contributions more than two years before a candidate’s next election. But the state seeks to have her case dismissed because she has not been threatened with prosecution for violating the law.

“States cannot put unconstitutional laws on the books and then tell citizens that they cannot challenge those laws in court. Most Americans will not exercise their First Amendment rights if they may be prosecuted for doing so, which is why courts routinely review unconstitutional laws before harm is done,” said Institute for Free Speech Legal Director Allen Dickerson.

Ms. Jones wishes to contribute to the campaign of State Senator Mark Johnson, who faces re-election in 2022. Under state law, this donation would be illegal until late next year. But the state also says Jones cannot challenge the law unless she is prosecuted for violating it.

If Arkansas is correct, states could chill the exercise of First Amendment rights by anyone who lacks the resources or willingness to fight back in court. Indeed, Jones has refrained from making such a contribution to avoid liability for herself and Senator Johnson. The Institute’s brief explains that courts have relaxed requirements for First Amendment challenges to prevent precisely this sort of outcome.

“The State is incorrect in asserting that the only way to show a reasonable fear of prosecution is to have an actual prosecution,” reads the Institute’s brief. “[O]ne need not await prosecution to challenge a statute imposing liability… Ms. Jones need not allege that she is in fact harmed; she must allege harm in the form of curtailed expressive activity due to the statute’s existence. Here she has plainly done so.”

The case, Jones v. Jegley, is before the United States Court of Appeals for the Eighth Circuit.

To read the Institute’s brief, click here.

About the Institute for Free Speech

The Institute for Free Speech is a nonpartisan, nonprofit 501(c)(3) organization that promotes and defends the First Amendment rights to freely speak, assemble, publish, and petition the government. Originally known as the Center for Competitive Politics, it was founded in 2005 by Bradley A. Smith, a former Chairman of the Federal Election Commission. The Institute is the nation’s largest organization dedicated solely to protecting First Amendment political rights.

IFS Staff

IFS Staff