Washington, DC – The Institute for Free Speech released a first-of-its-kind report today grading the freedom of citizens and advocacy groups in each state to speak about candidates, government, and issues of public policy. The 2022 Free Speech Index is the most comprehensive examination ever published of state laws regulating speech about government and its policies.
As detailed in an editorial in
The Wall Street Journal, the Free Speech Index is a resource for researchers, policymakers, and the public to better understand and study the laws that regulate Americans’ political speech and association rights in the states. Each state was graded across ten different areas of law that burden speakers and groups. In each category, states earned the greatest number of points if their laws either do not burden or impose relatively small burdens on citizens’ First Amendment rights.
“The bottom line is that whether they live in Florida or California or any place in between, citizens shouldn’t need a legal team on retainer to speak out on political issues,” wrote the Journal.
Sadly, most states performed poorly in the analysis. Wisconsin alone earned over an 80% score for respecting political speech and assembly rights. 35 states earned less than 50% of the possible points in the report. The worst state in report was New York, which earned an abysmal 15%.
“If these were classroom grades, more than forty states would fail. To put it simply, legislatures across the nation have regulated too much speech by too many groups. In most of the country, citizens who advocate for better government in almost any organized manner are forced to hire an attorney to attempt to navigate the maze of laws,” said David Keating, President of the Institute for Free Speech, a nonpartisan First Amendment advocacy group that defends political speech rights.
“Every state has at least one blatantly unconstitutional law on the books, and most have many such laws,” Keating said.
Some key findings of the report include:
- Only three states (Wisconsin, Michigan, and Iowa) achieve a score above 70%.
- The eight worst states for free speech were, in descending order, Florida, California, Delaware, Maryland, Hawaii, Washington, Connecticut, and New York, which all scored below 30%.
- The assault on political speech is bipartisan and nationwide, with poor grades in traditionally “red” states like Alaska (rank #42) and Florida (#43) and “blue” states like Connecticut (#49) and Hawaii (#47) as well as in big states like California (#44) and small states like Delaware (#45), and in states east (New York, #50), west (Washington, #48), north (Minnesota, #36), and south (South Carolina, #40).
Though campaign finance is often portrayed as a “wild west,” the Free Speech Index reveals that, in fact, elected officials are the ones running wild and trampling vital rights protected by the First Amendment. Through vague and expansive definitions of terms like “contribution,” “lobbying,” “expenditure,” and “political committee,” speech that advocates for better government is subject to numerous regulatory burdens and reporting requirements. Even grassroots advocacy is regulated in fifteen states.
The report also contains numerous recommendations for states on how to improve their laws to become friendlier to free political speech. Some laws, such as those that purport to prohibit “false” statements about political candidates, should simply be repealed. Others must be updated and reformed to abide by Supreme Court precedents and safeguard every American’s right to participate in social movements in the 21st century.
The three overarching ways states can improve their laws are:
- Follow the Constitution and Supreme Court guidance
- Make efforts to protect citizen privacy
- Think speech first
“Policymakers too often treat free speech as an afterthought when considering new laws. The Index shows that this approach leads to a patchwork of rules and regulations that work together to make it significantly harder to effectively engage in politics and policy debates,” said Scott Blackburn, Research Director at the Institute for Free Speech and author of the report.
To assess each state’s performance, the Index ranks the states in ten categories, each of which examines a different area of state law burdening speakers and groups:
- Laws on Political Committees
- Grassroots Advocacy and Lobbying
- Definition of Campaign “Expenditure”
- Regulation of Issue Speech Near an Election (“Electioneering Communications”)
- Regulation of Independent Expenditures by Non-Political Committees
- Coordination Regulations
- Disclaimers
- Super PAC Recognition
- False Statement Laws
- Private Enforcement of Campaign Laws
States that impose no or minimal burdens on First Amendment rights receive the greatest number of points in the report for making it easier for citizens to speak about issues and the government. States receive no points if their laws heavily burden the right to speak about government.
The Institute for Free Speech was founded in 2005 by former Federal Election Commission Chair Bradley A. Smith to counter the growing overregulation and criminalization of political activity. We have represented numerous Americans in lawsuits challenging state laws that unconstitutionally limit, restrict, or burden the exercise of First Amendment political speech rights. Now, the Free Speech Index offers the first comprehensive look at how states burden free political speech.
“In the vast majority of states, very few people understand the harmful speech impacts of these laws and rules. To the extent they are known at all, citizens and lawmakers often view these laws as nothing more than campaign finance regulations – rules supposedly intended to keep politics free of corruption, not restrict the First Amendment. In each state, only a handful of experts and attorneys know the truth – that the primary effect, and often the primary purpose, of these laws is to restrict speech,” the Index explains.
The Institute’s first Free Speech Index, published in 2018, was a groundbreaking analysis of limits on campaign contributions in the states. Contributing to candidates, parties, or political groups is one of the most common and direct ways Americans exercise First Amendment political speech rights. The new 2022 index focuses on state laws regulating the right of Americans to organize and spend money on independent political advocacy or issue speech.
Taken together, the 2018 and 2022 free speech indices provide an insightful review of each state’s respect for fundamental First Amendment rights to advocate for better government and a better society. Unfortunately, the combined picture is grim. Only one state – Iowa – performs reasonably well in both indices. Four states – Alaska, Connecticut, Maryland, and Rhode Island – ranked in the bottom ten in both Indices.
“These are, unquestionably, some of the most regulated and hostile states in the country for those who want to advocate for better government,” the Index notes.
