One of the best-known press critics of the 20th Century, A.J. Liebling, may be best remembered for this quote: “Freedom of the press is guaranteed only to those who own one.” Now, the major daily newspapers of Arizona have provided, by example, a corollary of sorts.
It all began with an effort by a powerful state legislator to abuse state law to intimidate a citizen into silence.
From time to time I hear from Robin Scoins of the Arizona Family Rights Advocacy Institute. Like those who found many such grassroots organizations around the country, Ms. Scoins got involved after having her own run-in with child protective services. (Her story is included in an excellent cover story in the alternative weekly Phoenix New Times.)
Like most such organizations I’ve encountered, AZFRAI has one staff person, Ms. Scoins. She is unpaid. Any meager expenses come out of her own pocket. She certainly does not hold lavish legislative receptions, take lawmakers to fancy dinners or make huge campaign contributions.
In short, she is a citizen petitioning for redress of grievances, much the way people living on a street with a lot of accidents might form the “Citizens Committee for a Traffic Light” and speak at public hearings of their local City Council.
The equivalent of the City Council member who doesn’t want to spend money on a traffic light is Arizona State Rep. Pete Hershberger. Hershberger chairs the committee that deals with most legislation affecting child protective services. And he is among the legislature’s most ardent backers of the take-the-child-and-run approach that increased the number of children taken from their parents in Arizona by 40 percent from the end of 2002 through the end of 2004, with removals staying at that same high level ever since. (As usual, this was sold as a means to curb child abuse deaths and, as usual, such deaths went up instead.)
Hershberger usually opposes what Ms. Scoins favors and vice versa. You would think being a powerful state lawmaker opposing a one-person-unpaid-staff-all-volunteer-citizen-group would be enough for Hershberger.
But in February, Hershberger sent a letter to the Arizona Secretary of State urging her to launch an investigation into whether AZFRAI and Ms. Scoins are “properly registered” as a lobbying group and lobbyist respectively. He sent copies of his letter to the Attorney General and the Maricopa County Attorney.
The Secretary of State ruled that Ms. Scoins did, indeed, violate the law by failing to register, and referred the matter to the Attorney General. Ms. Scoins also appealed to the Attorney General’s office.
When Ms. Scoins sent me Hershberger’s letter, I went to the Arizona Secretary of State’s website and looked through the 199-page “Lobbyist’s Handbook” (a lot of those pages are sample forms, but still…). One would hope that the solons of Arizona could craft a law able to distinguish between Robin Scoins and Jack Abramoff. But I’m not a lawyer. And after wading through a lot of dense prose, I still can’t tell if, as a result of some absurd technicality, Ms. Scoins can be forced to fill out a lot of forms to prove she isn’t spending anything and be forced periodically to pay a $25 filing fee which, while small, still would be a burden to an impoverished single parent.
But the office of the Arizona Attorney General is, of course, filled with lawyers. And, apparently, they have a lot of time on their hands. Because not only did they weigh the “evidence” forwarded by the Secretary of State, they also, on their own, poured through committee hearing minutes in search of a smoking gun.
And, by golly, they found it! Apparently, as the Attorney General’s office sees it, had Ms. Scoins simply testified as Robin Scoins there would be no problem. But because she created AZFRAI, (even though she is the only staff of AZFRAI, is paid nothing, and has no funding), AZFRAI has to register because it has a lobbyist – Ms. Scoins – and Ms. Scoins has to register for being the lobbyist for AZFRAI.
In a letter sent to Ms. Scoins last Friday, the Attorney General’s office noted that Ms. Scoins “testified on behalf of AZFRAI” in support of legislation last year. But the real “smoking gun” was the fact that she gave legislators a handout which included her “Institute’s Recommendations.” Indeed, notes the Attorney General’s office, “the recommendations identify AFRAI [sic] next to your name on each page.”
Looks like Robin Scoins has been busted.
Though there are criminal penalties for failing to register, Ms. Scoins probably will not be punished, since such violations must be “knowing.” And the A.G.’s office says that since Ms. Scoins is not paid, she will not have to pay any fees, just fill out a lot of forms.
In fairness to the Attorney General’s office, it can be argued that it is their job to apply the letter of the law, unleavened by common sense. But whatever the letter of the law, there is no way Hershberger’s actions in bringing this complaint are in the spirit of the law. And it is a clear violation of the spirit of another law: the First Amendment.
Hershberger would ultimately tell New Times that "I was just curious. My understanding is if she's representing someone other than just herself, paid or unpaid, she has to register. That's to protect the public and let them know who's representing who. . . . Now it's up to them. If she didn't do anything wrong, okay, I’m done with it.”
But if that were the case, Hershberger simply could have walked up to Ms. Scoins at a hearing and said something like this:
“You know, Robin, I realize you’re not paid and have no budget, but I’ve been looking at state law and, technically, you may need to register as a lobbyist. Could you please check with the Secretary of State? I want you to know that, even though we strongly disagree, I respect any citizen’s right to dissent, so if they say you have to register, I’ll pay the fee, and I’ll have a member of my staff help you with the forms.”
But, of course he did none of that. And copying in the Attorney General and the Maricopa County Attorney makes Hershberger’s apparent goal plain: to bully and intimidate a citizen who has done no more than disagree with his point of view on legislation. If he succeeds it will have a chilling effect on any citizen who dares to band together with a few others to disagree with a powerful legislator.
And it has one more detrimental effect that journalists should be concerned about: These kinds of disclosure laws generally are good laws; it is very much in the public interest to know when big special interests are using their power and money to influence lawmakers. One need only recall the controversy over Vice President Cheney’s refusal to make public who attended meetings he held for advice on energy policy to understand that, at both the federal and state level, these laws need to be strengthened.
But any time anyone tries, powerful special interests conjure up hypothetical horror stories about how the laws will quash free expression by “the little guy.” Now, thanks to Rep. Hershberger, they don’t need hypotheticals - they’ve got a real case. What can serve powerful special interests better than a legislator apparently abusing well-intended disclosure legislation to bully a citizen?
Naturally, since this case implicates two pet causes of journalists, freedom of expression and full disclosure, Arizona’s big daily newspapers rushed to cover this story.
Weeks after I let NCCPR’s “Arizona List” of journalists know what Hershberger was doing, only New Times reported the story. I’ve found not a word in any major daily; certainly not the state’s largest daily, The Arizona Republic. It was encouraging when the Republic columnist who most strongly supports using CPS to tear apart impoverished families briefly expressed an interest in the story – but nothing came of it.
And it’s not hard to understand why. Though it has modified its position a bit over the years, the Republic still generally champions a take-the-child-and-run approach to child welfare – and it is largely a no-dissent zone on the issue.
So unless they also read New Times, Republic readers are unlikely to know nothing of Hershberger’s apparent attempt to intimidate Ms. Scoins. No news story. No editorial. No columnists taking up the issue. (There was one brief post to a Blog on the Republic website summarizing the New Times article.)
(And if anyone is wondering what NCCPR would do were we ever called upon to defend publicly the rights of those with whom we disagree - it happened a couple of years ago in Georgia. A judge threw some Court-Appointed Special Advocates (CASAs) out of his court after they criticized how the court was run. An editorial writer for the Atlanta Journal- Constitution called seeking a quote about how outrageous this is.
(The editorial writer knew that, though CASA may be the most sacred cow in child welfare, NCCPR believes it to be an enormously destructive force - one more thumb tilting the scales of justice against families. (To see why, see this excellent story from Youth Today). But the editorial writer figured we would see this as a matter of principle, and support the right of any observer to free speech and access to the courts, even observers with whom we usually strongly disagree. She was right. She got her quote.)
I began this post with the Liebling Doctrine: “Freedom of the press is guaranteed only to those who own one.” Here’s the Arizona Corollary: Freedom of speech will be defended only when we agree with it.