In 1998, Utah voters approved a ballot initiative designed to make it more difficult for future initiatives to limit hunting in that state. The initiative modified the Utah constitution’s section on initiatives such that,
Legislation initiated to allow, limit, or prohibit the taking of wildlife or the season for or method of taking wildlife shall be adopted upon approval of two-thirds of those voting.
In 2000, the initiative was challenged in federal courts by a diverse group of plaintiffs that included everyone from animal rights groups to several Republican officials who argue that the change itself is unconstitutional.
Lisa Watts Baskin, attorney for the plaintiffs, appeared before the 10th circuit court in September making her case that the constitutional change was a violation of the First Amendment rights of the people of Utah.
Baskin’s case apparently rests on the fact that the sponsor of this supermajority ballot initiative said publicly that he introduced the bill because of fears that activists would use the initiative process to ban the hunting of bears and cougars.
Baskin, then, is arguing that the entire process chilled free speech because now other individuals and groups in Utah may be afraid to speak out on their views about possible legislative changes for fear that a group may amend the constitution in order to make it more difficult to do so.
As the Associated Press reported on this case,
Watts Baskin said other interest groups fear that if they anger legislators by pressing too hard on a particular issue, the Legislature could approve a similar requirement on initiatives affecting their issues.
“The injury has already been suffered by my clients; they have felt their voices have been silenced,” she said.
This line of reasoning, frankly, sounds absurd since it could be effectively applied toward any governmental regulation of behavior. If I discover a loophole in the federal tax code, for example, and make public statements about it, then it is likely that the Congress would act to close said loophole. Should this be unconstitutional because that would clearly chill free speech about tax loopholes?
As Utah attorney general Thom Roberts noted, the constitutional change doesn’t affect the speech of those involved at all, but rather makes it more difficult for certain types of initiatives to succeed,
Plaintiffs are worried that they can’t prevail. They can get on the ballot, they can argue. It doesn’t affect their First Amendment rights how you count up the votes.
I’d be very surprised if the federal courts buy into this line of reasoning given how expansive this sort of criteria could prove to be — not to mention the plain old absurdity of the argument.
The full text of the 1998 ballot initiative can be read here.
Sources:
10th Circuit asked to strike Utah constitutional amendment. Jon Sarche, Associated Press, September 15, 2003.
Lawsuit Charges Utah Amendment Threatens Wildlife, Voter Rights. Cat Lazaroff, Environmental News Service, October 25, 2000.