Lewis Morris / August 15, 2022

How the States Fare on Free Speech

“In some important ways, our speech has never been more highly regulated.”

We hear a lot about the lack of free speech on college campuses. And we’re likewise aware of brazen actions to silence public dissent generally. Nationally, we have arcane campaign finance laws that favor incumbents and make it increasingly difficult to challenge the status quo. But what about the states?

The Institute for Free Speech (IFS) recently released its Free Speech Index, which analyzes laws that restrict political speech in all 50 states. The index rates states based on 10 categories that include laws governing political committees, grassroots activity, electioneering, campaign law enforcement, and false statement laws.

Founded by election and campaign finance attorneys, IFS is an independent organization committed to protecting political speech rights. But judging by the findings in its report, it has its work cut out for it.

Going by the same scale as most schools, with a grade of 60% being the minimum needed to pass, only three of the 50 states did so according to the report: Wisconsin scored 86%, Michigan 77%, and Iowa 75%. Every other state received a failing grade. Three deep-blue states brought up the rear: Washington was at 22%, followed by Connecticut at 18%, and New York at a rock-bottom 15%.

With one of the most corrupt state legislatures in the country, New York earned its dubious distinction with heavy regulation of free speech around elections and unclear and seemingly arbitrary definitions of campaign expenditures.

We’re disappointed to report that there wasn’t a lot of daylight between Republican-led and Democrat-led states. Florida ranked 43rd for low-dollar spending thresholds that trigger registration rules. According to the report, 45 states “have statutes that are of questionable constitutionality and would not likely survive if challenged in court.”

Nineteen states have laws protecting against false political speech, which is of course determined by politicians and regulators with a vested interest in protecting incumbency. And despite the widespread legal acceptance of independent expenditure-only political committees commonly referred to as super PACs, 22 states still have unconstitutional laws that fail to recognize these groups.

“In some important ways, our speech has never been more highly regulated,” wrote IFS’s chairman and founder, Bradley A. Smith. “Though campaign speech is often portrayed as a ‘wild west’ with no rules, in fact, arcane campaign finance regulations govern the minutiae not only of almost every campaign, but of what ordinary citizens and the groups they belong to can say and how and when they can say it.”

The complex web of laws and regulations, which grew over the years either by design or incompetence, places a heavy burden on candidates who aren’t both well financed and thoroughly schooled in campaign finance law. Many of the laws the index identified are unconstitutional and could be successfully challenged in court, but few candidates or private citizens have the resources to mount such challenges.

IFS offers a section in the report on how states can improve. First and foremost among these tips is to follow the Constitution, which seems easier said than done these days. Prioritizing citizen privacy and speech is also key. And if we could add our own two cents, we’d encourage folks not to elect people to public office who don’t respect the Rule of Law.

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