L. Neil Smith's
THE LIBERTARIAN ENTERPRISE
Number 62, December 31, 1999
Federal Judge Upholds Noxious "Truth Squad" Fine
by Vin Suprynowicz
Special to TLE
Here in Las Vegas, U.S. District Judge Philip Pro last week rejected
the lawsuit filed by Nevada Assemblyman Bob Beers, R-Las Vegas,
against the state Ethics Commission.
Although the Ethics Commission acknowledged in its original written
opinion that "every factual statement is true," the panel earlier
this year fined Beers $5,000 for sending out a mailing which -- in
the commission's opinion -- implied that Beers' 1998 Republican
primary opponent, Dennis Silvers, might have been involved in an
arson that burned his former restaurant to the ground.
Assemblyman Beers went to court, arguing a state law which empowers
an appointed body to levy such fines violates not only the separation
of powers -- usurping a judicial function -- but also violated the
candidate's First Amendment freedom of speech.
Judge Pro ruled Dec. 21 that the commission did no wrong since it
complied with all procedural requirements, such as giving Beers
adequate notice, permitting him to be represented by counsel, and
allowing him to present evidence in his own behalf.
It complied with all "procedural requirements?" Well isn't that
Didn't the Southern states follow all the regular "procedural
requirements" when they enacted laws banning black folk from sitting
at segregated lunch counters? Of course they did. So why, pray tell,
did the federal courts throw out those laws?
The federal courts threw out those laws because they were found to
violate the Constitution, of course.
And if a state Ethics Commission can levy fines for campaign speech
merely by adopting "standard court procedures," can a PTA or some
corporate board of directors now mete out the death penalty with
equal impunity, so long as they similarly mimic "all the normal
I hope not. This is why "jurisdiction" must be established in court
before anything else is decided -- particularly anything based on the
shibboleth that "all the normal procedural requirements have been
All federal judges swear an oath to protect and defend the
Constitution, which is the highest law of this land. And under the
wise precedent set by the very first Supreme Court in Marbury vs.
Madison, all federal judges know that laws which violate the
Constitution and the Bill of Rights are to be treated as though they
are null and void -- as though they never existed.
It is not true that lower court judges must leave appeals on such
constitutional matters "to higher authority." Any federal judge asked
to consider a case under a statute which is unconstitutional on its
face has a sworn duty to consider the question of constitutionality
first, since without constitutionality there can be no statute, at
And how can you hear a criminal case without a statute?
The notion that "a tie goes to the government -- you're free to
appeal from your cell" is antithetical to our traditions of freedom.
When there is any doubt, Constitutional protection of our vital
liberties must prevail, and simpering concerns about "the overriding
duty of the state to keep things orderly" be damned.
Beyond that, the further notion that our political candidates must
now refrain from saying things that sound unpleasant or might
prejudice voters against their opponents -- even when such statements
are acknowledged to be true -- makes a mockery of the
underlying meaning and purpose of our American freedom of speech.
Our campaigns aren't adequately lacking in substance, already? We
need to further reduce them to the ritualized bows and flourishes and
insincere mutual flatteries of perfumed courtiers?
Mr. Beers' assessment has been held in abeyance while he pursues his
appeals, thank goodness. He says he will now review his options and
continue his legal fight if possible.
"The facts are that the commission fined me for telling the truth
because the truth was negative," he explains. "It is almost as if
there is a three-bolt lock in front of justice. We just have to
figure out how to pick the darn thing."
That's a shame. Justice and the protections of the Bill of Rights
should not be available only to those with the time, money and
fortitude to wend their way through some intricate legal maze.
Even if Judge Pro's decision is justified by technicalities of
jurisdiction and "procedure," that's cold comfort. Hizzoner had a
chance here to strike a rousing blow for freedom. He could have
thrown out that unwise portion of the state statute which turns the
unelected Ethics Commission into an ad hoc "Truth Squad" -- and let
the state appeal, if it wished.
Instead, seeking to clear his desk of this case on a technicality,
Judge Pro missed a significant opportunity to do the right thing.
Vin Suprynowicz is assistant editorial page editor of the Las Vegas
Review-Journal. His new book,
Send in the Waco Killers: Essays on the Freedom Movement, 1993-1998,
is available at $24.95 postpaid
from Mountain Media, P.O. Box 271122, Las Vegas, Nev. 89127; by
dialing 1-800-244-2224; or via web site
KNOWS A BAD LAW WHEN HE SMELLS ONE,
BUT COULDN'T FIND HIS RIGHTS WITH BOTH HANDS
"These new laws [California's latest "assault on rifles" legislation]
are illegal, and the people who passed them are lawbreakers,"
[southern California gun shop customer John] Daily said. "The
Constitution gives us the right to bear arms. If they want to change
that, change the Constitution."
RELATIVISM AND RELATIVITY -- GODS FOR THE GODLESS
"It is both good and instructive to end this century by honoring its
great men -- the leaders, the inventors, the scientists, the artists.
It has been a remarkable century in that regard -- Roosevelt, Mandela
and Einstein just for starters. These are people who enrich our
lives, show us how to live -- what is possible. We need heroes. Even
atheists need gods."
-- Richard Cohen
to advance to the next article, or
to return to the previous article, or
Table of Contents
to return to The Libertarian Enterprise, Number 62, December 31, 1999.