Censoring political speech in the Live Free or Die state

October 13, 2009   •  By Sean Parnell
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The pending ruling by the U.S. Supreme Court in Citizens United is expected to free up businesses, unions, and nonprofit advocacy corporations to voice their opinions with minimal restraint in elections. For those of us who believe strongly in the First Amendment and the right of all citizens to speak either individually or collectively, the anticipated striking down of the 1990 Austin v. Michigan Chamber of Commerce and a good chunk of McCain-Feingold will be a welcome development.

But from the Granite State comes a tale that demonstrates just how imperiled political speech will continue to be even if/when Austin meets its well-deserved demise. According to at least one judge in New Hampshire, speech by business entities can be restrained by such things as consumer protection laws and other regulations on commercial speech, even when the speech is plainly political in nature.

The case of Green Mountain Realty Corp v. The Fifth Estate Tower LLC (GMR v. Fifth Estate) revolves around two competing proposals in the small New Hampshire town of Wolfeboro for cell phone tower placements. Fifth Estate had one idea about where to build a new Tower, GMR had a different idea, and the matter was to be decided in a vote of the townspeople.

Fifth Estate and GMR were hardly disinterested bystanders in this matter – both entities were businesses that stood to profit from the proposal they supported. Both Fifth Estate and GMR engaged in the most basic of political speech possible – mailings, newspaper ads, radio spots, handing out fliers, and speaking out in town meetings   

On election day, the voters decided against the GMR proposals (Fifth Estate’s had been previously rejected as well). One might think this would be the end of the matter, at least until the next election or town meeting when the voters might again consider the issue.

Unfortunately, GMR decided to sue Fifth Estate over the content of some of their statements and mailings against the Fifth Estate proposal, under the theory that Fifth Estate’s statements on the matter were regulated commercial speech subject to the limitations of the state Consumer Protection Act.

Among the complaints claimed by GMR was that a postcard that Fifth Estate mailed out included a too-big depiction of what the GMR cell tower would look like, creating the impression that it would be a larger “eyesore” than it would in reality be. And in fact the expert witness brought in by GMR found that the cell tower as presented was too big – about .22 inches too large, in fact. The same expert also found that GMR’s own depiction showed a too-small tower, incidentally.

In court Fifth Estate pointed out the obvious fact that this was political speech, meant to influence and persuade voters, and therefore subject to the highest available protections for speech under the First Amendment. Even if Fifth Estate’s political speech was to some extent hyperbolic, exaggerated, self-serving, or subject to dispute, it should still be considered as protected First Amendment speech and therefore exempt from consumer protection laws meant to ensure firms don’t falsely advertise or represent their products and services.

The judge was not persuaded, however, that speech by a business intended to sway voters was political, and in fact the judge specifically instructed the jurors that the First Amendment was not at issue in the case, because the speech was commercial in nature, not political.

Fifth Estatelost the case at trial, and was hit with a staggering penalty – roughly $6.7 million (this for a company that grosses less than $100,000 a year). The penalty was determined by the judge who considered each of 3,337 identical postcards mailed to be a separate violation, punishable by a fine of $1,000 each. Then, for good measure, he doubled it.

To say that the lawsuit and the penalty imposed create a chill on free political speech is an understatement. Two of those forced to defend themselves from this attack on their First Amendment rights testified in court that they declined to even comment in public when the issue of cell towers came up again in a later vote, and a third said he spoke out against the advice of his attorney.

The case is currently being appealed to New Hampshire’s Supreme Court, and CCP is planning to file a brief supporting the right of Fifth Estate, and all businesses or other entities to engage in protected First Amendment political speech. While it’s difficult to imagine this case surviving even the most basic First Amendment scrutiny by New Hampshire’s highest court, it’s all too easy to see how these types of harassing lawsuits could be used in the future to try to limit the political speech of corporations, especially in a world without Austin and McCain-Feingold’s “electioneering communications” restrictions.

(this post has been edited to correct the inadvertent reversal of plaintiff and defendant in the original version)

Sean Parnell

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