Federal judge upholds noxious 'Truth Squad' fine
Here in Las Vegas, U.S. District Judge Philip Pro last week rejected the lawsuit filed by Nevada Assemblyman Bob Beers, R-Las Vegas, against the state Ethics Commission.
Although the Ethics Commission acknowledged in its original written opinion that "every factual statement is true," the panel earlier this year fined Beers $5,000 for sending out a mailing which -- in the commission's opinion -- implied that Beers' 1998 Republican primary opponent, Dennis Silvers, might have been involved in an arson that burned his former restaurant to the ground.
Assemblyman Beers went to court, arguing a state law which empowers an appointed body to levy such fines violates not only the separation of powers -- usurping a judicial function -- but also violated the candidate's First Amendment freedom of speech.
Just Pro ruled Dec. 21 that the commission did no wrong since it complied with all procedural requirements, such as giving Beers adequate notice, permitting him to be represented by counsel, and allowing him to present evidence in his own behalf.
It complied with all "procedural requirements?" Well isn't that special.
Didn't the Southern states follow all the regular "procedural requirements" when they enacted laws banning black folk from sitting at segregated lunch counters? Of course they did. So why, pray tell, did the federal courts throw out those laws?
The federal courts threw out those laws because they were found to violate the Constitution, of course.
And if a state Ethics Commission can levy fines for campaign speech merely by adopting "standard court procedures," can a PTA or some corporate board of directors now mete out the death penalty with equal impunity, so long as they similarly mimic "all the normal procedural requirements"?
I hope not. This is why "jurisdiction" must be established in court before anything else is decided -- particularly anything based on the shibboleth that "all the normal procedural requirements have been met."
All federal judges swear an oath to protect and defend the Constitution, which is the highest law of this land. And under the wise precedent set by the very first Supreme Court in Marbury vs. Madison, all federal judges know that laws which violate the Constitution and the Bill of Rights are to be treated as though they are null and void -- as though they never existed.
It is not true that lower court judges must leave appeals on such constitutional matters "to higher authority." Any federal judge asked to consider a case under a statute which is unconstitutional on its face has a sworn duty to consider the question of constitutionality first, since without constitutionality there can be no statute, at all.
And how can you hear a criminal case without a statute?
The notion that "a tie goes to the government -- you're free to appeal from your cell" is antithetical to our traditions of freedom. When there is any doubt, Constitutional protection of our vital liberties must prevail, and simpering concerns about "the overriding duty of the state to keep things orderly" be damned.
Beyond that, the further notion that our political candidates must now refrain from saying things that sound unpleasant or might prejudice voters against their opponents -- even when such statements are acknowledged to be (start ital)true(end ital) -- makes a mockery of the underlying meaning and purpose of our American freedom of speech.
Our campaigns aren't adequately lacking in substance, already? We need to further reduce them to the ritualized bows and flourishes and insincere mutual flatteries of perfumed courtiers?
Mr. Beers' assessment has been held in abeyance while he pursues his appeals, thank goodness. He says he will now review his options and continue his legal fight if possible.
Good.
"The facts are that the commission fined me for telling the truth because the truth was negative," he explains. "It is almost as if there is a three-bolt lock in front of justice. We just have to figure out how to pick the darn thing."
That's a shame. Justice and the protections of the Bill of Rights should not be available only to those with the time, money and fortitude to wend their way through some intricate legal maze.
Even if Judge Pro's decision is justified by technicalities of jurisdiction and "procedure," that's cold comfort. Hizzoner had a chance here to strike a rousing blow for freedom. He could have thrown out that unwise portion of the state statute which turns the unelected Ethics Commission into an ad hoc "Truth Squad" -- and let the state appeal, if it wished.
Instead, seeking to clear his desk of this case on a technicality, Judge Pro missed a significant opportunity to do the right thing.
Vin Suprynowicz is assistant editorial page editor of the Las Vegas
Review-Journal. His new book, "Send in the Waco Killers: Essays on the
Freedom Movement, 1993-1998," is available at $24.95 postpaid from Mountain
Media, P.O. Box 271122, Las Vegas, Nev. 89127; by dialing 1-800-244-2224;
or via web site http://www.thespiritof76.com/wacokillers.html.
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Vin Suprynowicz, vin@lvrj.com
"The evils of tyranny are rarely seen but by him who resists it." -- John Hay, 1872
"The whole aim of practical politics is to keep the populace alarmed -- and thus clamorous to be led to safety -- by menacing it with an endless series of hobgoblins, all of them imaginary." -- H.L. Mencken
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