State Capitol News
4:10 pm
Tue January 21, 2014

Attorney Argues Anonymous Hit Pieces OK During Campaigns

A lawyer for Democratic attorneys general argued in court today there’s a constitutional right for anonymous hit pieces on candidates, even right before an election. Arizona Public Radio's Howard Fischer explains.

Attorney General Tom Horne
Credit azcentral.com

The group ran a TV ad before the 2010 campaign saying, in essence, that Tom Horne, then state school superintendent, was not protecting children from molesters. But, attorney Tom Irvine told the Court of Appeals his client does not have to comply with laws that require groups trying to influence an election to disclose the source of the funds. He said this was simply an informational ad about Horne as school superintendent because it did not use words like “vote against” or “oppose” Horne in his bid for attorney general. That claim raised the eyebrows of appellate Judge Patricia Orozco.

“Look at it. It’s done two weeks before the campaign. It’s done two-and-a-half months before he’s to vacate that office. I mean, for all intents and purposes, he’s a lame duck. How can we not give that a reasonable meaning other than to advocate for his defeat?” Orozco said.

Irvine’s contention also drew questions from Judge Lawrence Winthrop who acknowledged a First Amendment right of people to speak.

“Isn’t part of a right, the First Amendment rights enjoyed by listeners, to understand the source of the speech that’s being proposed and the context in which it’s being offered?” Winthrop asked.

If the judges side with Irvine it could pave the way for a flood of anonymous commercials right before elections, each one claiming its aim is solely to educate voters and not to influence the outcome of the race.