Sunday, June 19, 2016

The State vs. Dennis Fusaro

By Thomas R. Eddlem

Freedom of speech has been under assault since the Citizens United decision under the leftist rationale that “dark money” by billionaires is clouding/influencing America's elections. But with the indictment of Dennis Fusaro and Steven Waters by the State of Maryland, it's easy to see how this crusade to end “dark money” would work as censorship of anti-incumbent citizen-action in the real world. Indeed, it's also an indication of how the right to freedom of speech is in part already lost.

Fusaro was campaign manager for Michael Peroutka in a 2014 Anne Arundel County Council race and is charged with participating in a “robocall” that didn't identify the source of the caller. According to Maryland state prosecutor Emmet Davitt, Fusaro and Waters bought a cell phone at a Wal-Mart in Virginia and used it to make some 5,000 recorded calls against Peroutka's openly homosexual opponent, Patrick Armstrong. Peroutka, who claims to have no prior knowledge of the anonymous political communications, went on to win the county council race. The total cost of the phone purchase and calls is estimated by all parties to have cost less than $200. The satirical call said this:

“Hello, what a great opportunity for the LGBT community. We have a true believer for our cause in Patrick Armstrong who’s running for County Council in Anne Arundel County, Maryland. Call Patrick today and thank him for his bravery in coming out of the closet. Coming out of the closet and supporting the fairness to all Marylander’s Act, the Maryland State Senate Bill 212, and supporting the rights for all transgenders. Transgenders can now openly and freely go into any bathroom of their choice based on their confused gender identity. Tell Patrick to continue to stand loud and proud in support for transgenders’ equal rights. While our opponent argued that children could be at risk by sexual predators with this new law, we celebrate the rights of transgenders and what this does for equality for transgenders in Maryland. Call him today at 410-***-**** and thank him for supporting the bathroom bill. Paid for and authorized by Marylanders for Transgenders.”

Many people won't agree with the content of the call, but it accurately informed voters of Armstrong's position on legislation before the state, even if it listed a non-existent “Marylanders for Transgenders” as the source of the call. [Full disclosure: I've never met Fusaro or Waters face to face, but I've been an acquaintance of Fusaro since we worked together on legislation back in the 1990s when he was Director of State and Local Legislation for Gun Owners of America and I worked as a researcher for The New American magazine.] The “robocall” was made in the midst of an ugly campaign where Peroutka, the 2004 Constitution Party candidate for President, was wrongly accused by local Democrats of being a white supremacist (for his membership in the League of the South). In addition, because Armstrong lives with his mother, news outlets reported that the robocall gave out Armstrong's “mother's home phone number.” Davitt charged Fusaro and Waters with “arranging for the 'caller id' function on each recipients’ telephone to display on the number of an 'untraceable' prepaid cell phone purchased by the said STEPHEN WATERS and DENNIS FUSARO with cash at a Walmart store in Fredericksburg, Virginia, for the purpose of preventing identification of the persons responsible for the call, in violation of §§13-401 and 13-602 of the Election Law Article, Annotated Code of Maryland, and against the peace, government and dignity of the State.” Both face two charges that each have a maximum penalty of one year in prison and a $5,000 fine.

What does all that mean? Davitt explained: “Maryland voters are entitled to know what person or group is responsible for such material, particularly when it is published and distributed just a few days before Election Day. The credibility of the messenger is an essential factor in evaluating the value of the message.”

But do voters have the right to demand all political communication – even speech – be public and not anonymous? America would not have become independent of Great Britain, except for the anonymous political communication by Samuel Adams as Vindex and of the Committees of Correspondence. We wouldn't have our Constitution but for the anonymous Federalist Papers published as "Publius." And we wouldn't have a Bill of Rights without the anonymous "Federal Farmer" and "Brutus" publishing the Anti-Federalist Papers. So naturally, the Democratic Party establishment in Maryland – and nationally – regards all anonymous political communications as un-American "dark money."

The official line from establishment Democrats is that money is not speech. But try running a radio station without spending money on microphones, a studio or a transmitter. Or try running a newspaper without any money to buy a press, ink or paper. The argument that money isn't speech, and that government needs to control all money directed toward political communication, eventually leads to government controlling all speech and press.

The issue is not about money for political speech, even from billionaires. MSNBC's parent company, NBC-Universal/Comcast, takes in more than $75 billion every year, which is in excess of $150 billion per election cycle. Yet, perhaps unsurprisingly, not one Democrat has risen to the challenge to call for federal regulation of this 24-hour per day, 365-day per year Democratic propaganda network under the Federal Election Commission. Nor should they, even though most Americans receive 90 percent of their information from five giant media corporations, NBC-Comcast, ABC-Disney, CNN-TimeWarner, Fox/NewsCorp, and CBS-Viacom, all of which (even NewsCorp/Fox) donate more to Democrats than to Republicans and none of which donate any significant funds to Tea Party or Libertarian-oriented candidates. In other words, all five support bigger government, backing Republicans who want more warfare and – to a much larger extent – Democrats who want more welfare. Together these five corporations spend in excess of $400 billion every election cycle. Yet let some group of people chip in to anonymously buy a single 30-second advertisement on one of these same multi-billion dollar media conglomerates to give a different point of view, and Democratic politicians consider the single advertisement an outrageous and undue influence by “billionaires” with America's election process. This argument is also made at the national level. U.S. Senator Charles Schumer (D-N.Y.) revealingly noted in a June 3, 2014 Senate committee hearing [@1:59:52] on the Udall amendment to pass a constitutional amendment to repeal Citizens United that “Most of the money that has come from the SuperPacs and many of these groups are knocking out incumbents, particularly from the other side, whether they be Republican or Democrat.” So, the manufactured outrage against Citizens United is based upon the very strong impetus by government officials for incumbent protection.

One counter-argument often made is that “media” corporations receive protection from the First Amendment, presumably because they are professionals, while citizens should not receive protection. The Maryland case proves that it's not about being a professional, as Dennis Fusaro has been a political professional for at least two decades, and served on Ron Paul's 2008 presidential campaign. But the First Amendment makes no exception for professionals, and people who argue that large media conglomerates rely upon advertising for their revenue have no idea how much of the media market works – usually because they have no exposure to employment in the media. Most political magazines are supported by advertisers who own companies and buy advertisements as a means of political support, never hoping to make additional sales with their advertisements. To them, this measure of support is a tax write-off as a business expense. This is true with political magazines on the left (Mother Jones, The Nation, etc.), right (National Review, The New American, etc.) and establishment “center” (Foreign Affairs, The New Republic, etc.). Nobody realistically thinks that Northrop-Grumman is going to move a few more airplanes by advertising in The New Republic; if that company is going to advertise in The New Republic, it buys the ads as a public relations and political support measure. The same goes for syndicated radio talk shows and many other forms of “media” political communication.

The “media” argument works out in practice that when the media gets big enough, they receive First Amendment protection. But the little guy who spends less than $200 is subject to government regulation, and perhaps government prosecution.

Another counter-argument sometimes goes that the protection of the First Amendment means that people no longer need to be anonymous, as they did under British rule when they feared government retribution. Of course, by the time the Federalist and Anti-Federalist Papers were written, British influence had been erased from the United States. Moreover, many founding fathers continued to write anonymously even after adoption of the First Amendment. James Madison and Alexander Hamilton continued on a vigorous debate using pen names “Helvidius,” Pacificus,” and “Americanus” over George Washington's neutrality proclamation in 1793. If there had been no need under the First Amendment to engage in anonymous political communication, why did James Madison – the man who introduced the Bill of Rights in the House of Representatives in 1789 – bother to continue to do it?

Moreover, is it really accurate to say there is no longer fear of retribution? As Clarence Thomas noted in his concurrence on the Citizens United decision:

“Some opponents of Proposition 8 [in California in 2008] compiled this information and created Web sites with maps showing the locations of homes or businesses of Proposition 8 supporters. Many supporters (or their customers) suffered property damage, or threats of physical violence or death, as a result. They cited these incidents in a complaint they filed after the 2008 election, seeking to invalidate California’s mandatory disclosure laws. Supporters recounted being told: 'Consider yourself lucky. If I had a gun I would have gunned you down along with each and every other supporter,' or, 'we have plans for you and your friends.' Proposition 8 opponents also allegedly harassed the measure’s supporters by defacing or damaging their property. Two religious organizations supporting Proposition 8 reportedly received through the mail envelopes containing a white powdery substance. Those accounts are consistent with media reports describing Proposition 8-related retaliation.”

Proposition 8 was a California ballot initiative on same-sex marriage, and sexuality tends to be among the most passionate of topics. With Armstrong's campaign as an outed homosexual who backed the “bathroom bill,” the same kinds of passion are involved, and the same kind of retaliation was realistically possible.

The idea that government needs to ban anonymous political communications is based upon the twin ideas that voters are stupid, incapable of deciding the value of content without a government label describing the author, and that only government is responsible enough regulate and scrutinize political speech. And while the average voter may indeed be stupid (look at the current major party nominees for President), there's no evidence that government is responsible. Indeed, just as there no textual justification for the ban on political speech in the First Amendment, a federal government shorn of the textual shackles of the First Amendment would in time likely engage in the kind of censorship that would protect political incumbents as well as merely ban anonymous communications. In Maryland it already has.

The above originally appeared at

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