School Board Candidate Sues Florida to Protect His Right to Tell Voters He’s a Republican

Nonpartisan elections are no excuse to violate the First Amendment, federal lawsuit says

April 15, 2021   •  By IFS Staff   •  
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Pensacola, FL – Kells Hetherington is running for the Escambia County School Board to offer his experience in finance to help cut costs and improve performance in the county’s public schools. But he fears being punished for sharing his party membership with potential voters, and for good reason. The last time he ran for school board, the Florida Elections Commission fined him $200 for stating that he is a “lifelong Republican.”

Today, with the help of the Institute for Free Speech, Hetherington filed a federal lawsuit challenging the Florida law he was punished for violating. Candidates have a First Amendment right to speak to voters about their political views and background. States can establish nonpartisan offices, but they cannot prohibit candidates from mentioning their membership in a political party.

“Fining a candidate for telling voters their party affiliation is a clear violation of the First Amendment. Florida’s law bans speech that is important to voters, and the candidates appealing to them, at precisely the time it is most relevant,” said Institute for Free Speech Attorney Owen Yeates.

Party membership is one of the most valuable pieces of information about a candidate to the voting public. It gives an immediate impression of the candidate’s outlook and perspective. States should not prohibit candidates from sharing truthful information about their political background.

“I did nothing wrong when I told voters that I am Republican. The Florida Elections Commission fined me $200 under a law that blatantly infringes on my constitutional right to free speech,” said Hetherington. “It’s an outrage that in the Sunshine State, of all places, we can be punished for telling people what party we belong to. I’m eternally grateful for the assistance of the Institute for Free Speech in fighting this injustice. Perhaps with the court’s help, we can truly have a sunshine state.”

Hetherington wrote that he was a “lifelong Republican” in his candidate statement on a county website during his 2018 campaign for school board. Acting on a complaint filed against him, the Florida Elections Commission sought to fine Hetherington $500 for stating his partisan affiliation. Although the Commission eventually reduced the fine, it still forced him to pay $200 for saying that he was a member of a political party.

The law at issue, Florida Statute 106.143(3), states: “A political advertisement of a candidate running for nonpartisan office may not state the candidate’s political party affiliation. This section does not prohibit a political advertisement from stating the candidate’s partisan-related experience. A candidate for nonpartisan office is prohibited from campaigning based on party affiliation.”

Hetherington and the Institute for Free Speech are asking a federal court to strike down this provision as unconstitutional and to ensure Florida officials do not continue to violate candidates’ First Amendment right to express their party membership. Hetherington has registered to run for the Escambia County School Board again in 2022. This time, he wants to be able to inform voters of his party affiliation without the threat of being fined.

The case is Hetherington v. Lee. It is before the United States District Court for the Northern District of Florida, Pensacola Division. To read the complaint, 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

https://www.ifs.org/author/ccp-staff/

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