Type of Document Thesis Author Hanway, Julia D. URN etd-04252011-234915 Title Testing Free Speech in Our Conflicted Democracy: Julia Hanway and the Wakulla Independent Reporter vs. the Florida Elections Commission Degree Master of Arts Department Interdisciplinary Humanities, Program in Advisory Committee
Advisor Name Title John Committee Chair Dennis Moore Committee Member Ned Stuckey-French Committee Member Keywords
- Civil rights
- Eleventh Amendment
- First Amendment
- Florida Elections
- Barbara Linthicum
- David Harvey
- Steve Wayne Brown
- Kathi Brown
- Forman Brothers
- Davies Florida
- Crawfordville Florida
- Robert Rivas
- Ron Mowrey
- Robert Routa
- Hugh Taylor
- Dana Peck
- Walter Wurster
- Thelma Gaupin
- Mike Stewart
- George Waas
- Nestlé Water
- Wakulla County Chamber of Commerce
Date of Defense 2011-03-29 Availability unrestricted AbstractThis thesis documents and analyzes events ignited by complaints to the Florida Elections Commission (FEC) against the fledgling, independent newspaper, The Wakulla Independent Reporter; its publisher, Julia Hanway; and her business, Florida MicroType Graphics, LLC, in the rural panhandle of Florida. In 2005, the FEC determined that the Wakulla Independent Reporter was an “electioneering communication” under Florida’s election laws, and was “not a newspaper,” and therefore did not fall under the “newspaper” exemption in the “electioneering communication” statute. The FEC’s final decision on the validity of the complaints left the paper and its publisher subject to financial penalties and potential criminal prosecution if Ms. Hanway continued to publish without submitting to the FEC’s stringent requirements to disclose principals, contributions and expenditures, and to publish a conspicuous disclaimer in every issue.
Ms. Hanway and her ACLU-sponsored lawyer, Robert Rivas, filed a lawsuit in federal court against Barbara Linthicum, Executive Director of the FEC, arguing that the Wakulla Independent Reporter was being penalized as a form of viewpoint discrimination, which is prohibited by the First Amendment to the United States Constitution. In turn, the FEC fought for two years to establish that the publication was an electioneering communication and was not a newspaper. The FEC forced Hanway to incur costs and attorney fees of nearly $80,000 to fight for the right to publish without registering with the FEC.
At a pretrial hearing on the eve of trial, the FEC’s lawyer suddenly changed its position, insisting that the paper was, in fact, a “newspaper” under Florida law. The newspaper was—contrary to all of its previous arguments—now exempt from the requirements the election law imposed upon electioneering communications. This change in the FEC’s position, its lawyers argued, made the lawsuit “moot.” They based their argument on the fact that the complaint and investigation were only based on the first issue of the paper—in spite of the fact that the FEC investigation reviewed other subsequent issues of the paper in 2005; and, in spite of the fact that the FEC had determined that the publisher could not print again without registering additional issues. Changing their argument after two years meant that the FEC would not be financially responsible for the Plaintiff’s expenses if Judge Hinkle agreed with them.
In the summer of 2007, Judge Hinkle ruled that the paper was a newspaper; that the FEC was clearly wrong in their original assessment that it was not a newspaper; and that the FEC should never have tried to force the paper to register as an electioneering communication. In court, he forced the FEC to admit that they would not hinder the publication from printing or force the publisher to register with the FEC in the future.
Relieving the FEC from financial responsibility because he did not have to impose an injunction as the plaintiff had requested, Judge Hinkle cited the Eleventh Amendment in his decision. Judge Hinkle wrote that the Eleventh Amendment dictated that he should not overreach in his judgment and create new law without necessity. Instead, he chose to completely avoid the First Amendment aspect of the case and ruled that the case was “moot”—as the FEC had argued in the February hearing. He ruled that, as long as the FEC promised never to take action against the Wakulla Independent Reporter, the case was moot because there was no longer the need for an injunction to protect the paper from the FEC.
In 2009, however, the First Amendment was finally addressed as it pertained to the state’s electioneering laws. In Broward Coalition v. Browning Florida’s electioneering laws were determined to be “overbroad” and were overturned by a court in Orlando. The United States Supreme Court completely reversed earlier decisions that justices had made in the landmark case of McConnell vs. Federal Election Commission. In 2010 the Supreme Court determined that all electioneering communication laws throughout the country were unconstitutional in a case known as Citizens United vs. the Federal Election Commission.
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