Prosecuting Political Speech in West Virginia

cross-posted at: http://www.campaignfreedom.org/blog/

The main headline was innocuous enough: “Clarksburg Councilman Arrested.”  Okay, we thought, it’s unfortunate, but elected officials all too often find themselves subject to the criminal justice system just like their constituents from every other walk of life.  Maybe they had a few too many before hitting the road, had a domestic dispute or whatever.

But what really caught our eye — what we couldn’t believe — was the sub-headline: “Councilman Martin Shaffer was arrested for his role in producing a newsletter.”  And, our disbelief only grew as we read further and further into the article.

You see, not only did the “Clarksburg Police Department, working in conjunction with the [West Virginia] Secretary of State’s Chief Investigator,” arrest a city councilman “for his part in the distribution of a newsletter titled “Clarksburg City Council News,” but also that arrest took place on the eve of an election — albeit an election in which Councilman Shaffer was not a candidate because his term does not expire for two more years.  To add to the drama, the councilman’s arrest was prompted by an investigation called for by his well-known political adversary, City Manager Martin Howe.

In other words, this sounded like the most egregious of official retaliations against disfavored political speech.  And, despite our disbelief, both the reported facts of the story and illegitimate rationale for the arrest appear to be exactly what happened late last week.

Specifically, Councilman Shaffer was charged with violating, as well as conspiring to violate, West Virginia Code Section 3-8-12(a), which states: “No person may publish, issue or circulate, or cause to be published, issued or circulated, any anonymous letter, circular, placard, radio or television advertisement or other publication supporting or aiding the election or defeat of a clearly identified candidate.”

In other words, Councilman Shaffer is being prosecuted for being part of anonymously speaking to his fellow citizens of Clarksburg about what is going on in their local government.

The anonymous publication at issue, Volume 1, Issue 1 of the “Clarksburg City Council News”, is a critical look at the City of Clarksburg’s government and all of its alleged management, financial and ethical failings.  There are articles with headlines like “Governor Manchin Shocked over $5,000,000 Cost to City Parking Lot”; “Clarksburg has some of highest paid employees in State; Clarksburg citizens pay the highest taxes in State”; “Councilman Lopez enjoys life at city expense”; “Councilman Hunt spends $4,695.75 on trip to Switzerland”; and even an “Editorial” that explains, “This newsletter is a collection of many instances of failed leadership by officials in Clarksburg that have had a direct effect on the citizens of the city.”

Thus, it’s not surprising that the apparent powers-that-be in Clarksburg didn’t take too kindly to such a publication being mailed to 4,000 homes where their constituents live.  But that doesn’t provide the powers-that-be the ability to prosecute anyone who might dare to publish and distribute the dirty case against their continued reign.

At least in the America we know and love, disliking a political message isn’t a reason to punish it, especially through a criminal prosecution.  Indeed, CCP is not alone on this as both the Supreme Court and a federal district court in West Virginia have issued rulings protecting anonymous political leaflets and newsletters under the First Amendment — even when they are published around election time.

Indeed, a federal district court in West Virginia permanently enjoined the specific statute — albeit an earlier version — under which the charges against Councilman Shaffer have been brought back in 1996, see West Virginians for Life, Inc. v. Smith, 960 F. Supp. 1036, 1041-43 (S.D. W. Va. 1996), leaving us to wonder just how carefully the local police department, prosecutor’s office and even the state Secretary of State’s office were in allowing these charges to be brought in the first place.

This situation, once again, reminds us that far too many people — including those who have taken solemn oaths to uphold the law — still don’t understand the basic fundamentals of our free and democratic political system.  After all, as the Supreme Court explained in a decision concerning a woman fined for distributing anonymous pamphlets opposing a proposed school tax levy: “Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent.  Anonymity is a shield from the tyranny of the majority.   It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation — and their ideas from suppression — at the hand of an intolerant society.”  McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 357 (1995).

It’s a lesson we hope the powers-that-be in the City of Clarksburg and the State of West Virginia learn well and soon.

written and posted to the blog of the Center for Competitive Politics by Reid Cox, Legal Director.

Sean Parnell


Center for Competitive Politics