Trent England | January 9, 2019
Speech police, take two
Note: The Oklahoma Ethics Commission met on January 11th and, after numerous citizens testified against the measure (watch the video), delayed action for two weeks. The Commission will hold a special meeting on January 25th and is expected to vote on this proposed speech regulation at that time.
The Oklahoma Ethics Commission this week released a rewritten version of its plan to regulate political speech. The Commission still plans to vote on the proposal this Friday, and could pass either version. The update, while attempting to narrow the scope of the regulation, introduces additional uncertainty. It would still result in collecting and publishing the names, home addresses, and employer information of people based on involvement in policy issues.
The first proposal by the Oklahoma Ethics Commission would have labeled you a lobbyist if you so much as suggest to your neighbor, in person or on Facebook, that she contact a legislator about a pending bill. That verbal or social media comment would have required a “disclosure,” basically a warning label that the suggestion is “lobbyist communication.” All this seems silly, but is serious because it would establish state power to regulate these conversations.
The update limits this new definition of lobbyist to people who spend money, or are paid, to suggest that others contact their legislators. While narrower, this still seems to capture anyone who pays to make copies of a flier or to send one of those fliers in the mail. This still represents an unprecedented power grab by the Commission and an attempt to police political speech.
Oddly, the update also changes the media and association exemptions. The drafting is shoddy at best.
The media provision includes an exemption for “paid advertisements which advocate the support or opposition of pending legislation by a news medium or its employees.” This means that the Tulsa World, or even just an employee of the World, could run a campaign to influence the legislature without any regulation, while anybody else would have to jump through the Commission’s new hoops.
As an aside, constitutionally speaking, journalists should have no protections—zero—more than any other citizen. Constitutional protections for freedom of the press are for every American, like the freedoms of speech and assembly, and they apply whenever we happen to publish our views. This freedom was never meant as a protection for a special class of journalism school graduates or newspaper employees.
The new proposal’s association exemption claims to protect an organization communicating with its members, but then exempts from that exemption any communication about contacting legislators. In other words, it exempts communications that would not be covered by the regulation in the first place. Again, this seems to be just shoddy drafting.
Finally, the update provides clarity on which groups would be required to disclose their members names and other information. This doxing provision would apply when a group raises money specifically for the purpose of influencing the legislature. This would probably apply most often to single-issue groups, like those working on a particular gun issue, or on either side of human life issues. It would also apply to efforts that pop up around specific bills, like a teacher pay raise or Right To Work.
As a practical matter, many of these groups are small and often lack legal counsel to help them navigate the kind of regulation the Commission has proposed. As a matter of principle, why should Oklahomans be put on a government list, their home addresses and employer information exposed, for supporting a pro-life group or a teacher pay raise? Whose interests are served by that?
The Oklahoma Ethics Commission went back to the drawing board, but their second effort is no better than the first. It reaches far beyond the constitutional power of the Commission, which is limited to policing the ethics of government officials and employees. And it would chill speech by threatening to expose Oklahomans’ private information for taking an active role in our legislative process.
Remember to sign OCPA’s petition against this effort to police speech. If you sign by 5 p.m. on Thursday, you will be included in the total number announced to the Commission at its hearing Friday morning. You can also contact the Commissioners directly.
David and Ann Brown Distinguished Fellow
Trent England is the David and Ann Brown Distinguished Fellow at the Oklahoma Council of Public Affairs, where he previously served as executive vice president. He is also the founder and executive director of Save Our States, which educates Americans about the importance of the Electoral College. England is a producer of the feature-length documentary “Safeguard: An Electoral College Story.” He has appeared three times on Fox & Friends and is a frequent guest on media programs from coast to coast. He is the author of Why We Must Defend the Electoral College and a contributor to The Heritage Guide to the Constitution and One Nation Under Arrest: How Crazy Laws, Rogue Prosecutors, and Activist Judges Threaten Your Liberty. His writing has also appeared in the Wall Street Journal, USA Today, Washington Times, Hillsdale College's Imprimis speech digest, and other publications. Trent formerly hosted morning drive-time radio in Oklahoma City and has filled for various radio hosts including Ben Shapiro. A former legal policy analyst at The Heritage Foundation, he holds a law degree from The George Mason University School of Law and a bachelor of arts in government from Claremont McKenna College.