State: Anonymous campaign material OK

State: Anonymous campaign material OK

SMITHFIELD - The attorney general's dismissal of misconduct charges against an election consultant for Democratic state Sen. Stephen Archambault is fueling debate over the legality of a Rhode Island statute that forbids distribution of unsigned campaign criticisms.

The dismissal has also brought a call from the American Civil Liberties Union for Smithfield police to stop enforcing the law, but Town Solicitor Edmund L. Alves Jr. terms that idea "absolute nonsense."

Last March, police arrested Archambault's 2012 campaign consultant, Robert Horowitz, on a misdemeanor charge for allegedly distributing anonymous material designed to be politically injurious.

The arrest came after a complaint from Republican James W. Archer, who last fall ran unsuccessfully against Democrat Gregory Costantino for a seat in the House of Representatives that represents a portion of Smithfield.

Archer, a member of the municipal Planning Board and former GOP town chairman, contended that fliers, first-class mailings, and emails were misleading and defamatory of him and other Republican candidates.

Horowitz's lawyer, John E. MacDonald, argued that the state law is unconstitutional because its language mirrors an Ohio statute that the U.S. Supreme Court struck down in 1995.

Amy Kempe, spokeswoman for state Attorney General Peter Kilmartin, said the office dismissed the charges, in advance of a Superior Court trial, because wording in Rhode Island's law is "virtually identical" to that of the nullified Ohio statute.

The situation has left local police - in a town where last-minute political flame-throwing is not unusual - to deal in an election year with a law that itself appears illegal, but is nonetheless still on the books.

Police Chief Richard St. Sauveur Jr. said that in the Horowitz case, "My detectives did exactly what they were supposed to do - they investigated a criminal complaint and obtained an arrest warrant."

He said his department's job is to enforce the law, "which we did. What happens after that is beyond our control."

Town Solicitor Alves disagreed with the ACLU's position for backing off, asserting that "it's not up to police departments to decide which laws they'll enforce."

Steven Brown, executive director of the ACLU's Rhode Island chapter, said his unit will write the local department asking it to ignore the statute in view of the Ohio decision, but Chief St. Sauveur said, "It's not my job to follow their guidance."

Brown said the state's blanket prohibition of unsigned criticism is too broad a curb on freedom of speech and belies the fact that anonymous statements abound in other, unregulated contexts such as emails and on radio talk shows where unidentified callers "say all sorts of outrageous things."

The right to anonymous free speech is "a deeply entrenched American tradition," he said, noting that even the authors of the 1787 Federalist Papers supporting a Constitution - Alexander Hamilton, James Madison, and John Jay - were at first unidentified.

In reaching its decision in the Ohio case, the Supreme Court stated, "The interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest requiring disclosure of entry."

Horowitz's lawyer, MacDonald - himself a Smithfield resident - said the charges against his client involved an unsigned email and that the state law, which hasn't been updated since 1975, doesn't address email.

He attributed the criminal complaint to sour grapes over the election defeat.

MacDonald suggested that the General Assembly modify the law, perhaps by continuing to prohibit unsigned criticism from political organizations, but removing the prohibition that includes the general public.

The Ohio case involved not a political group, but a single taxpayer who passed out pamphlets opposing a school tax.

It was not immediately clear how the recent developments might pertain to a separate section of the Rhode Island law that also prohibits placement of unsigned and injurious political advertising in newspapers and other publications.

Kempe said Horowitz was charged under a section of the Rhode Island law that deals with unsigned fliers, posters, and circulars, not with paid advertising.

The case, because it involved a misdemeanor, began in District Court, but according to Kempe was moved to Superior Court when Horowitz declined to waive his right to a jury trial.

Horowitz is founder and president of Rob Horowitz Assoc. Inc., a Providence consulting firm that has worked on a number of election campaigns from local to Congressional levels and has also represented organizations including Common Cause and Citizens for Rhode Island's Future.

Kempe said Horowitz was charged under a section of the Rhode Island law that deals with unsigned fliers, posters, and circulars, not with paid advertising.