Regulating Political Speech

How far should we go?

This week, Texas-based Young Americans for Liberty (YAL) began rolling out social media ads and text messages targeting members of the Idaho House of Representatives who voted for House Concurrent Resolution 4, which gave lawmakers the option of donating unwanted salary to the tax relief fund.

This is only the latest broadside by YAL against Idaho legislators who are not bending to the organization’s will. While this might please a small handful of conservative activists who have made the grocery tax and the legislative pay raise the end-all, be-all of this session, it is alienating the vast majority of Idaho Republican lawmakers.

The House Republican Caucus issued a statement today via Twitter denouncing what it called “out-of-state dark money” that was “misrepresenting members” of the House GOP:

The implications for free speech are obvious. I’ve written before about how “dark money” is not really a thing, because donors to political nonprofits deserve privacy. Yet YAL has clearly crossed a line. Recall that the organization’s associated PAC, Make Liberty Win (MLW), sent mailers to voters in legislative district 30 that contained outright lies about legislators from that district. Then-Rep. Julianne Young lost her primary race by only two votes — surely at least two voters were swayed by the falsehoods sent by MLW.

It’s one thing for politically-engaged groups to share their opinions — “Rep. So-and-so is a big spending moderate who pretends to be a conservative” — but another to say things that are demonstrably untrue. The mailer claimed that Young, Rep. David Cannon, and Sen. Julie VanOrden “voted to allow porn in school libraries” by voting against House Bill 314, but all three actually voted for that bill!

The other claim on the mailer, that the three voted for the Idaho Public Television budget bill, was incorrect as well. While Cannon and VanOrden did vote in favor of Senate Bill 1399 last year, Julianne Young did not. Calling Idaho Public TV “leftist indoctrination” is an opinion, and perhaps correct, but saying legislators voted one way when in reality they did not is not only dishonest, but potentially libelous.

Recall last year when a PAC sent text messages to voters in district 10 falsely claiming that Sen. Tammy Nichols had once been arrested for felony check fraud. This clearly crossed the line from protected political speech and into libel.

Consider also the campaign in favor of Proposition 1, which was largely funded by big out-of-state organizations that hoped to move Idaho to the left. I believe many of their claims were entirely false, but who gets to decide what is a lie and what is simply an incorrect opinion?

The regulation of political speech is not an arena to be entered into frivolously. Some say there should be zero regulations, while others say there should be more. Idaho decided back in 1974 that campaigns must be transparent with regard to their finances, and today the Idaho Sunshine website is invaluable when it comes to understanding who is paying for what. I think it’s probably a good thing that voters are able to find out who donates to which candidates and which PACs. Recall how I connected the dots from attacks on three conservative Canyon County senators all the way back to Gov. Brad Little in late 2023.

Speaker Mike Moyle, who was a top target of YAL and associated groups last year, tweeted earlier this month that:

Out-of-state groups spent a lot of money in the last election against me. I believe in freedom of speech, but also transparency. The people should know who is paying for those campaign ads.

Expect some legislation coming down the pike with regards to political speech. I’m not sure if it will focus on increasing transparency for political nonprofits, addressing false claims, or a combination of both. I’ll keep you posted once something is introduced.

We must be cautious. We obviously don’t want the government deciding what political speech is “true” or “false,” as that would inevitably lead to incumbents using the law to silence challengers. However, should there be some recourse for blatantly false claims, like those used to attack Julianne Young last year? Should out-of-state groups have carte blanche to say whatever they want about political figures in Idaho, no matter how dishonest?

What do you think? Does political speech need more regulation and transparency, or less? What should the Legislature do about this issue?