Several people asked on this site yesterday what the law is regarding anonymous political mailers and flyers. The Secretary of State's office was nice enough to send over the laws Mr. Hosemann cited yesterday in his press conference. The three statutes are posted below.
§ 23-15-897. Approval of literature
No person shall write, print, post or distribute or cause to be distributed, a notice, placard, bill, poster, dodger, pamphlet, advertisement or any other form of publication (except notices, posters, and the like, which simply announce speaking date and invite attendance thereon) which is designed to influence voters for or against any candidate at any election, unless and until the same shall have been submitted to, and approved and subscribed by the candidate or by his campaign manager or assistant manager, which subscription shall in all cases be printed as so subscribed, and not otherwise. As, for instance, it shall be unlawful to write, print, post, distribute or cause to be written, printed, posted or distributed any such matter when the authority therefor is designated simply as “paid political advertisement,” or “contributed by a friend,” or “contributed by the friends and supporters,” and the like. Nor shall any radio or television station allow any time or place on any of its programs for any address for or against any candidate at any election, except in accordance with the provisions of the federal statutes and the rules and regulations of the Federal Communications Commission as applied to the use of radio and television facilities by a candidate or candidates for office. But the aforesaid written or printed matter and the time for radio and television addresses shall be paid for at the usual and ordinary rates, and only by a person authorized to make expenditures in behalf of the candidate, as is provided in this chapter in regard to other expenditures.
For a violation or violations of this section, the offender may be proceeded against as provided in Section 23-15-875.
§ 23-15-899. Identifying source of literature
Every placard, bill, poster, pamphlet or other printed matter having reference to any election, or to any candidate, that has not been submitted to, and approved and subscribed by a candidate or his campaign manager or assistant manager pursuant to the provisions of Section 23-15-897, shall bear upon the face thereof the name and the address of the author and of the printer and publisher thereof, and failure to so provide shall be a misdemeanor, and it shall be a misdemeanor for any person to mutilate, or remove, previously to the date of the primary, any placard, poster or picture which has been lawfully placed or posted.
§ 23-15-875. Charges against private life
No person, including a candidate, shall publicly or privately make, in a campaign then in progress, any charge or charges reflecting upon the honesty, integrity or moral character of any candidate, so far as his private life is concerned, unless the charge be in fact true and actually capable of proof; and any person who makes any such charge shall have the burden of proof to show the truth thereof when called to account therefor under any affidavit or indictment against him for a violation of this section. Any language deliberately uttered or published which, when fairly and reasonably construed and as commonly understood, would clearly and unmistakably imply any such charge, shall be deemed and held to be the equivalent of a direct charge. And in no event shall any such charge, whether true or untrue, be made on the day of any election, or within the last five (5) days immediately preceding the date of any election.
Any person who shall willfully and knowingly violate this section shall be guilty of a misdemeanor, and upon the affidavit of any two (2) credible citizens of this state, before any judicial officer having jurisdiction of misdemeanors, said officer shall thereupon forthwith issue his warrant for the arrest of said alleged offender, and when arrested the officer shall forthwith examine into the matter, and if the proof of guilt be evident or the presumption great, the officer shall place the accused person under bond in the sum of Five Hundred Dollars ($500.00), with two (2) or more good sureties, conditioned that the person bound will appear at the next term of the court where the offense is cognizable, and in addition that the person bound will not further violate this section; and additional affidavits may be filed and additional bonds may be required for each and every subsequent offense. When and if under a prosecution under this section, the alleged offender is finally acquitted, the persons who made the original affidavit shall pay all costs of the proceedings.
Thursday, July 30, 2015
Here is da law
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6 comments:
Without enforcement the law is meaningless. These unattributed hit flyers have been going on for some time and arguably are increasing in number with each election cycle. Until offenders -- including the owners of the print shops who are part of this equation -- start receiving substantial fines that actually hurt and/or other legal sanctions these flyers will continue. The law is being openly flaunted and there appears to be no fear whatsoever of repercussion. Until our AG and DAs act nothing will stop the practice.
" including the owners of the print shops who are part of this equation"
I suspect anyone with a printer could produce 500 of these flyer in 10 minutes. No printer involvement necessary.
But, even if a 'print shop' IS involved in the production, they are NOT liable for the content or ensuring that the material complies with applicable law. I haven't read dackburt's laws but don't believe they establish liability for a printing business.
How do any of these statutes pass First Amendment muster in light of Citizens United and its growing progeny? The statutes appear to constitute prior restraints on political speech.
Assume Citizen X really despises Candidate Y (for good reason, bad reason, or no reason at all). Further assume Citizen X creates and circulates hand bills the week before the primary calling for the defeat of Candidate Y at the polls because he or she is a dirty, filthy, lying, cheating, embezzling, philandering, homosexual, abortionist (some or all of it may be true or all of it may be false).
How do you overcome a First Amendment defense to a prosecution for the alleged violation of one, or more, of these statutes? I cannot fathom an end game where the prosecution wins this battle.
I don't see a case re: the Miss. statute, but such bans on anonymous political ads have sometimes been upheld. E.g., Cassidy v. Lawson, 2005 WL 2508593 (D. Conn. 2005).
Well, 3:46, if they're banned then we won't have them, right? Sorta like drugs being illegal.
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