Analysis: North Dakota Ballot Measure Raises First Amendment Concerns

Initiative Could Require News Media to File Reports with the State; Contains Potentially Vague and Overbroad Provisions

August 14, 2018   •  By IFS Staff   •  
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Alexandria, VA – The Institute for Free Speech released an analysis today of a proposed North Dakota constitutional amendment on the ballot in November that says the initiative could create new risks for individuals and groups who speak about elections or government.

To read the analysis, click here, or go to: https://www.ifs.org/2018/08/14/analysis-of-november-2018-north-dakota-campaign-finance-lobbying-initiated-constitutional-amendment.

“North Dakota’s current campaign finance and lobbying laws are already unclear. The initiative could raise serious First Amendment concerns because of the additional vague rules it appears to impose on citizens and groups that wish to speak about public matters and state government,” said Eric Wang, Senior Fellow at the Institute for Free Speech, and author of the analysis.

Wang’s analysis finds:

  • The initiative proposes reporting requirements for any speech, communication, or publication that may “influence any …election” or “state government action.” Such a law appears to be unconstitutionally vague and overbroad. The initiative appears to regulate a broad range of educational messages and speech about public issues.
  • The initiative’s reporting requirements would also appear to require filings by media organizations for any news reporting or opinions that could “influence any …election” or “state government action.” Again, such a law appears to be unconstitutionally vague and overbroad.
  • Regulated speakers may be subject to extensive and intrusive requirements to report their funding sources akin to tracing the source of a river to the first drop of water. It is unclear how for-profit corporations would comply with these requirements and whether customers, investors, or lenders would need to be reported. Likewise, it is unclear whether media corporations would also have to report their subscribers and advertisers. The initiative does not prescribe any parameters for which funding sources must be publicly identified or how far up the funding stream the reporting requirements must go.
  • By possibly encompassing such a broad and undefined universe of speech and funding sources, the initiative’s reporting requirements are unlikely to satisfy the U.S. Supreme Court’s “exacting scrutiny” standard for compulsory disclosure laws.
  • The initiative would create a new North Dakota Ethics Commission, which would go into existence without any implementing legislation and without any limits on its powers or standards governing its conduct of investigations. Without adequate safeguards, the agency may be prone to abuse for partisan or ideological advantage.
  • The initiative would create a private right of action for any North Dakota taxpayer to enforce the constitutional amendment’s reporting provision. A federal court recently ruled that a similar system in Colorado was unconstitutional.

The Institute for Free Speech takes no position on the merits of the initiative as a whole. Many of its provisions lie outside the scope of Wang’s analysis, such as banning the personal use of candidate campaign funds and imposing myriad restrictions on lobbyists. The analysis aims to inform North Dakotans about additional regulatory burdens the initiative may impose on their speech, as well as additional legislation the Legislative Assembly will need to enact if the proposal is adopted.

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