State Policy Network
Shutting down speech with disclaimers: Institute for Free Speech represents Massachusetts group in newest lawsuit

If you want to criticize lawmakers over a pending bill, should the state be able to tell you what to say?

That’s the law in Massachusetts. The Institute for Free Speech’s newest client, Massachusetts Fiscal Alliance, wants the freedom to deliver its own message.

The Alliance wanted to run advertisements criticizing legislators’ decision to give themselves a pay raise while simultaneously raising Bay Stater’s taxes. But, in Massachusetts, if an ad mentions a candidate within 90 days of an election, it must include a long disclaimer mandated by the state.

The law forces a group’s top official to say her name, title, the name of the organization she leads, and that the group approved and paid for the ad. But what the CEO of a group looks or sounds like has nothing to do with the validity of the group’s message. A group’s top donors must also be listed on the face of the ad, even if they didn’t know about the ad, let alone donate to fund it.

“There is no legitimate reason for the government to force a group’s CEO to appear on-screen during an ad,” Institute for Free Speech Legal Director Allen Dickerson explained. “Nor is there justification for listing individual donors on ads they may know nothing about. These requirements force speakers to waste their resources promoting the government’s message.”

For broadcast ads, the state’s message can take up eight seconds of costly air time. You can say “Give me liberty, or give me death” in two seconds. “We hold these truths to be self-evident, that all men are created equal” takes four.

These disclaimer rules don’t inform voters – they misinform voters. They can mislead the audience to think the donors listed on an ad paid for it. Or they might cause viewers to judge the ad’s message based on the appearance or other personal characteristics of a group’s leader.

Making matters even worse, these rules can add thousands of dollars to an ad campaign by making ads unnecessarily longer and increasing compliance costs. Violations can trigger substantial fines or even criminal prosecution.

Compelled speech such as what is required in Massachusetts is an affront to the First Amendment. It is on these grounds that the Institute for Free Speech took the Alliance’s case.

“This lawsuit is not about getting rid of disclosure,” noted Paul Craney, a director of the Massachusetts Fiscal Alliance. “Rather, this is about removing intimidation from the process.”

More information about the case, Massachusetts Fiscal Alliance v. Sullivan, is available here.

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