Pillar of Law Institute: Free Speech Case Summaries

The following are summaries of free speech cases represented by the Wyoming Liberty Group, the parent organization of Pillar of Law Institute. Pillar attorneys Benjamin Barr and/or Stephen Klein served as lead counsel in each of these cases.

Pillar will now exclusively engage in free speech litigation, building on this successful record.

Wyoming Liberty Group brief in Citizens United v. Federal Election Commission (2009):

Citizens United addressed the question of whether the federal government could regulate and ban certain types of electoral speech through complicated regulatory programs. The Wyoming Liberty Group’s friend-of-the-court brief for the United States Supreme Court, later quoted by the majority of the Court in its ruling, discussed the freewheeling regulatory reach of the Federal Election Commission. The FEC had long described its approach to regulating electioneering communications—the speech at issue in the case—as easy to follow. Benjamin Barr’s brief illustrated that the system functioned like a system of prior restraint and the Court understood the FEC created a “2-part, 11-factor balancing test” to consider whether political speech could be prohibited. This brief is credited with influencing the court to make a much broader ruling for free speech than urged by the plaintiff in the case, and thus played an instrumental role in making Citizens United a celebrated and lasting decision. Without the Wyoming Liberty Group’s assistance here, the Citizens United case likely would have resulted in a much narrower and milder ruling protecting but a sliver of free speech.

Wyoming Liberty Group briefs in Tom DeLay v. State of Texas (2011, 2014):

DeLay involved the question of whether open-ended campaign finance laws could be used to criminalize fundraising by political actors in Texas. Two friend-of-the-court briefs, one for the Texas Court of Appeals at Austin and later for the Texas Court of Criminal Appeals, were the only briefs to address the free speech issues with the prosecution of Tom DeLay for money laundering and conspiracy. Arguing that DeLay’s political fundraising was entirely legal under Texas law, the briefs also showed that the prosecution’s interpretation of the law unconstitutionally threatened many forms of political fundraising and association in the state. The ruling by the Court of Appeals at Austin fully acquitted DeLay and included some of WyLiberty’s arguments in its decision. This acquittal was later affirmed by the Texas Court of Criminal Appeals. Without the Wyoming Liberty Group’s assistance here, Texas and other states would be unhindered in criminalizing political fundraising under the guise of money laundering.

Wyoming Liberty Group brief in
Three Unnamed Petitioners v. Peterson (The John Doe Cases) (2015):

Wisconsin citizens faced pre-dawn raids by police who seized personal computers, phones and records at the behest of a prosecutor looking into whether certain conservative groups illegally “coordinated” with Governor Scott Walker’s campaign. These secret “John Doe” Cases are another step in the criminalization of political engagement. The investigation is so secret that even speaking out about it puts its “suspects” at risk. In Wyoming Liberty Group’s friend-of-the-court brief for the Wisconsin Supreme Court, Benjamin Barr and Stephen Klein discuss that the entire basis of the investigation is unconstitutional. The prosecution’s theory of the law would allow it to punish all politically engaged citizens—from the Boy Scouts to newspaper editorial boards—for simply speaking out about issues and speaking to candidates. WyLiberty’s brief cuts through the case’s complexity and restores free speech to its proper place— far above prosecutorial whim.

Wyoming Liberty Group brief in Cary v. State of Texas (2014):

Like regulation itself, campaign finance penalties must respect free speech. David Cary was sentenced to 14 years in prison for bribery based on campaign finance violations that usually only result in a civil penalty. This friend-court-brief was filed in Cary’s appeal to the Texas Court of Appeals at Dallas addressing important free speech concerns with the prosecution’s theory. If the case were allowed to stand, any political contribution in Texas could be subjected to bribery investigations, charges and convictions. The court ruled unanimously to reverse Cary’s conviction and enter full acquittal. As of early 2015, other victims of Texas’s persecution continue their appeals to higher courts. Without the Wyoming Liberty Group’s involvement here, prison time would be a justifiable penalty for innocent mistakes made in political fundraising.

Free Speech v. Federal Election Commission (2012):

Something is wrong when compliance with campaign finance laws costs more than the money speakers want to pay for advertisements. Benjamin Barr and Stephen Klein brought this case on behalf of three Wyomingites who wanted to raise and spend a small amount of money to advocate on behalf of numerous issues, from free speech to gun rights to health care reform. But they could not do so without registering and reporting as a political committee or risking fines and other penalties for failing to register, due to vague and overbroad FEC regulations. The case lost, and revealed the lengths to which bureaucrats, campaign “reform” groups and courts will go to uphold all-encompassing speech regulations just because the government labels them “disclosure.”

Williams v. City of Cheyenne (2014):

Outright censorship still happens across the United States, but we need not tolerate it. When the City of Cheyenne, Wyoming adopted its Unified Development Code, it instituted broad restrictions that prohibited placing more than two political signs on a residential lot and then only for limited amounts of time. Benjamin Barr and Stephen Klein brought suit on behalf of Ron Williams, a Cheyenne resident who wanted to support numerous candidates in the 2014 elections. The city quickly settled the lawsuit, and the City Council amended its code to allow for unlimited political signage year-round.

Wills v. Maxfield (2014):

Campaign finance reform rhetoric often simplistically cries “money is not speech!” But some cases make it clear that much political speech requires money, and that it is unfair to put different fundraising limits on people competing in the same political race. The Wyoming Election Code considers a primary election and general election in a given cycle to be separate elections, meaning candidates can raise a certain amount of money in each. However, this distinction served as an outright prohibition on independent and minor party candidates from raising money before the general election cycle, since they do not participate in primaries. Benjamin Barr and Stephen Klein sued on behalf of Jennifer Young, a candidate for secretary of state nominated by convention of the Wyoming Constitution Party, and Don Wills, a Wyomingite who wanted to contribute to Young’s campaign. The state settled the lawsuit, recognizing that independent and minor party candidates may raise as much money per election as Republicans and Democrats under both the First Amendment and Equal Protection Clause of the Fourteenth Amendment.

Brophy v. Maxfield (2014):

The Wyoming Election Code placed a $25,000 aggregate limit on how much an individual could contribute to candidates in Wyoming races. So, with a contribution limit of $1,000 per candidate, a supporter could only contribute the maximum up to 25 candidates or make lower individual contributions to participate in the 75 legislative elections that occur every two years in Wyoming. Benjamin Barr and Stephen Klein represented Dan and Carleen Brophy, conservatives who wanted to empower primary challengers in numerous legislative races. The State of Wyoming settled, agreeing to halt the enforcement of the aggregate limit as an unconstitutional restriction upon free speech. In the 2015 Wyoming Legislative Session, Legislature repealed the aggregate limit, allowing candidates to access much-needed funds and for contributors to support them outside of arbitrary aggregate limits.