Institute for Free Speech Challenges South Dakota Law Regulating Speech about Ballot Measures

South Dakota law unconstitutionally restricts core First Amendment speech, press rights

October 9, 2018   •  By IFS Staff   •  
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Alexandria, VA – The Institute for Free Speech yesterday filed a lawsuit in federal court saying that a South Dakota law regulating speech about ballot measures is unconstitutional. The Institute seeks to publish an objective analysis of two ballot measures – Constitutional Amendment W and Initiated Measure 24 – that the group says implicate First Amendment rights. But the Institute fears criminal prosecution under a recently adopted South Dakota law if it does so. The group is asking the court to strike the law down or clarify that it does not apply to the Institute’s analysis.

“If the First Amendment protects anything, it should protect speech about threats to the First Amendment. South Dakota’s sweeping regulation of speech about ballot measures strikes at our core values and violates constitutional rights,” said Institute for Free Speech Chairman and former Federal Election Commission Chairman Bradley A. Smith.

South Dakota law regulates any expenditure for any communication “concerning” a ballot measure. Nearly any speech about the topics of ballot questions might be regulated under such a vague standard. That means the law could apply far beyond ads advocating a measure’s defeat or approval, and may include publications such as the Institute’s analysis.

“The Institute’s analysis is not a political ad in any sense of the term. But South Dakota’s law is so broad that it may even regulate lengthy, academic publications. In regulating so broadly, South Dakota has left the realm of campaign finance regulation and directly threatens Americans’ right to publish,” said Institute for Free Speech Legal Director Allen Dickerson.

The law imposes extensive reporting and disclaimer requirements on groups that speak about ballot measures. These include, but are not limited to, a requirement that the publication list the organization’s top contributors, even where those donors had no involvement with the regulated publication. This requirement exposes the identities of donors who would otherwise remain private under state and federal law.

Failure to comply with the law can result in prosecution and fines. Worse, South Dakota provides no way for groups to get advice from the state about the reach of the law. As a result, the Institute for Free Speech says it must turn to the courts to get its answer.

“The vagueness problem [in the law] is clear: government action unconstitutionally chills speech when it ‘blankets with uncertainty whatever may be said, compelling a speaker to hedge and trim,’” states the Institute’s request for a temporary restraining order.

The lawsuit asks the court to declare portions of the law unconstitutional and to clarify that the Institute’s analysis cannot be regulated by the South Dakota law.

The case, Institute for Free Speech v. Jackley, et al., is before the United States District Court for the District of South Dakota, Central Division. The Institute’s complaint is available here, and the request for a temporary restraining order is here. More information about the case is available 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

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