If one person or entity takes a position on an issue, does that undermine someone else’s free speech?
On its face, that doesn’t make sense.
Yet it is a key basis of a lawsuit by the Maine Heritage Policy Center against the Maine Municipal Association (MMA).
This case was brought over two years ago but now, with the MMA speaking out about the impact of the LePage budget on towns and taxpayers, the MHPC has highlighted the case.
The MMA has been around for a long time — since 1936 — and it’s one of 49 such groups in the United States. And its functions are like those other state-level groups — providing services to towns and cities and “advocating for collective municipal interests.”
The MHPC doesn’t want the MMA to advocate, at least not on ballot measures
Here’s what the Maine Heritage Policy Center says about its suit against the MMA.
In June 2010, MHPC’s Center for Constitutional Government filed suit on behalf of three individual plaintiffs and Cyr Plantation against the Maine Municipal Association. The complaint alleged violation of the individual plaintiffs’ First Amendment rights by the MMA due to the MMA’s active support of or opposition to five citizens initiatives from 2002-2009.
Now, this seems odd. How would taking a position on tax initiatives like TABOR threaten anyone else’s free speech rights?
To support their position, the MHPC’s legal statement cites cases from other states where MHPC-like groups also tried to silence groups like the MMA.
MMA contributions to and participation in PACs supporting or opposing Direct Initiatives violate the individual Plaintiffs’ First and Fourteenth Amendment rights because it is government “taking sides” and conferring an unlawful advantage to one side in the particular initiative question in direct contravention of the nation’s democratic process and contrary to “the root philosophy of a republican form of government”, Mountain States Legal Foundation v. Denver School District, 459 F.Supp. 357, 360-61 (D.Colo. 1978), aff’d on other grounds, 704 F.2d 501 (10th Cir. 1983), and are “direct governmental interference with an initiative”, Colorado Taxpayers Union, Inc. v. Romer, 750 F.Supp. 1041, 1045 (D. Colo. 1990), appeal dismissed for lack of standing, 963 F.2d 1394 (10th Cir. 1992).
But there’s something odd about citing those cases. And that’s that the courts that heard those cases didn’t agree with the MHPC-like groups’ positions that one person’s free speech rights are violated by a group taking a position. One case was “dismissed for lack of standing” and the other was affirmed “on other grounds.”
The MHPC makes another argument though.
And that’s that the MMA shouldn’t take a position because it’s a “quasi-governmental organization,” not really but sort of like a government.
In response, the MMA says that it has rights as a government entity.
Remember when Gov. LePage said he could remove the labor mural because that move was consistent with rights of “government speech”? The judge that decided that case and said it was ok as a matter of “government speech” is involved in this case, too.
And in September 2011, Judge Woodcock said that the MMA would have the right to take a position if what it did was government speech.
In this 42 U.S.C. § 1983 case, the Plaintiffs claim that the Maine Municipal Association (MMA) violated their constitutional rights by taking sides in citizen initiatives and expending public funds for partisan political activity. The MMA defends itself by saying its actions constitute government speech. To be protected as government speech, the speaker must be part of government and the record is insufficient to determine whether MMA is an arm of government.
And this whole definitional question still has not been resolved. In September 2012, Judge Woodcock wrote:
After the parties originally filed their motions for summary judgment, they proceeded to nitpick each other’s statements of material fact and ended up presenting the Court with an undifferentiated tangle of disputed facts. They could not even agree on how to describe MMA, its sources of funding, and its role in the tax reform initiatives. Faced with the obligation to determine whether there was a single genuine issue of material fact among a set of documents bristling with disputed facts, both large and small, beginning with the very identity of the [MMA].
Thus it’s important to “resolve in the first instance whether the government speech doctrine applied to MMA to begin with.”
This case isn’t done.
And I’m no lawyer or constitutional law scholar, but find this quite interesting as a matter of politics.
It’s another conservative effort aimed at trying to silence a group, to knock them out of the political sphere.
In Maine, the MHPC is trying to keep the MMA from taking positions on ballot issues related to their members, many of the state’s towns and cities.
Perhaps the MHPC wants to bring yet another TABOR to ballot and they’d prefer the MMA can’t organize against it. (Of course, even if the MMA didn’t get involved in such a campaign, plenty of other groups would oppose another TABOR. And we might remember that when it was last on the ballot, it lost 60-40%.)
But one thing the MHPC won’t be able to do would be to silence the MMA on current budget proposals. They certainly have the right to speak out about the proposals that would completely end municipal revenue sharing and would shift costs to property-owners.
Addendum: Just as with other legal issues, there is disagreement about government speech. On cases and controversies regarding the sort of government speech that’s permissible and what sort of restrictions can be placed on government speech, one source worth consulting is this law review article.