While clearly political, the mailer was not electioneering. It didn’t say anyone should oppose Hawkins-Butler for State Auditor, or oppose any of the three supervisor candidates, or suggest any other candidates as better choices.
It didn’t use the “magic” words described by the U.S. Supreme Court in Buckley v Valeo, which currently define “express advocacy” and constitute electioneering: “vote for,” “elect,” “support,” “cast your ballot for,” “Smith for Congress,” “vote against,” “defeat,” or “reject.”
Mississippi state law does not make a distinction between an electioneering piece or anything outside of electioneering when it comes to identifying who paid for the material: “Every placard, bill, poster, pamphlet or other printed matter having reference to any election, or to any candidate” not produced by a candidate or campaign “shall bear upon the face thereof the name and the address of the author and of the printer and publisher thereof, and failure to so provide shall be a misdemeanor….”
But, what of America’s long tradition of anonymous political speech?
Attorney Matt Eichelberger, who represented Brand and Williams, told The Clarion Ledger, “This entire country was founded on the principle of free speech, and that includes anonymous speech. Thomas Payne himself first published ‘Common Sense’ anonymously. When we take away the ability of people to speak about their government anonymously, then we take away the right of people to speak about their government, period.”…
…So for now in Mississippi, if you mention a candidate, put a disclaimer on it. Constitutional or not, “destructive to the republic” or not, it’s the law, and also just good manners.