Institute for Free Speech Wins Legal Challenge

Publishes Analysis of South Dakota Constitutional Amendment W and Initiated Measure 24

October 18, 2018   •  By IFS Staff   •  
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Alexandria, VA – Following a federal court ruling, the Institute for Free Speech released its analysis of two South Dakota ballot measures that the group says implicate First Amendment rights. The measures – Constitutional Amendment W and Initiated Measure 24 – will go before voters in November.

The Institute initially concluded it could not publish the analysis without risking prosecution under state campaign finance laws. The group sued, and on Tuesday, a federal judge barred the state from prosecuting the Institute for publishing its analysis.

“We are glad we are able to educate South Dakotans about ballot measures that affect their First Amendment rights. Voters are better off when they have more, not less, information about the choices they face on Election Day,” said Institute for Free Speech President David Keating.

The Institute’s analysis states that Constitutional Amendment W and Initiated Measure 24 suffer from both constitutional and practical defects.

Constitutional Amendment W would lower contribution limits and create a powerful new State Government Accountability Board to regulate campaign finance, lobbyists, and ethics in state government.

The Institute’s analysis warns that Constitutional Amendment W “will infringe on important First Amendment rights, will be ineffective in combating corruption, and will create a board with too much power and responsibility without the necessary expertise to be effective.”

Initiated Measure 24 would ban out-of-state speakers from spending any money to support educational or advocacy campaigns centered on South Dakota ballot measures. The Institute’s analysis notes that courts have struck down similar restrictions on non-residents’ First Amendment rights in the past.

“Fences may make for good neighbors, but few homeowners would throw up multiple fortifications around their houses. It would make their homes extremely difficult to get to, and their yards all but useless. But this is what the supporters of campaign finance regulations regularly ask us to do with our freedoms of speech and association,” reads the Institute’s analysis.

In order to publish its analysis without risk of prosecution, the Institute for Free Speech challenged a South Dakota law regulating any expenditure for any communication “concerning” a ballot measure. That vague standard potentially applies far beyond ads advocating a measure’s defeat or approval, and may include publications such as the Institute’s analysis. The Institute believes that law is not only bad policy – it’s an infringement on the First Amendment right to publish.

The court’s order allowing the Institute to publish its analysis was a significant victory for IFS, but problems in the law remain.

“We are grateful for the court’s ruling, which has allowed us to publish our ballot measure analysis. We look forward to addressing the remaining issues in the law as the case proceeds,” said IFS Legal Director Allen Dickerson.

To read the Institute’s analysis, click here. To read more about the case surrounding it, IFS v. Jackley, 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

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