There Is a Meaningful Difference Between Making Accusations and Saying You've Filed an Ethics Complaint

Update: October 22, 2010 (see below)

Recently, I wrote a blog post on the political use of ethics complaints and the manipulation of the press. Yesterday, the third circuit court of appeals effectively, and I think wrongly, disagreed with one of my principal arguments in that post, and therefore came to the wrong decision.

What I wrote, effectively in support of a second circuit decision concerning the right of an ethics complainant to say he filed a complaint, was, "the first amendment allows anyone who believes a candidate has done something illegal to say so publicly. What they can't do is legitimize it by saying that a complaint was filed. This seem senseless, but it is no more senseless than the news media's rule that the filing of a complaint makes a matter far more legitimate than a mere accusation."

That is, I started with the reality that the news media will usually write a story about the filing of an ethics complaint, but will usually not write a story when someone puts out a press release containing the accusations included in the same complaint.

Here's what the federal third circuit court of appeals wrote in Stilp v. Contino (No. 09-3016, July 22, 2010), a suit by a citizen who filed an ethics complaint with the Pennsylvania state ethics commission and was penalized for announcing the filing of the complaint in a press release (pp. 20-21):

there is no meaningful difference between publicizing allegations of unethical conduct on the eve of an election and doing so while also disclosing that an Ethics Act complaint was filed with the Commission. Either way, publicizing the allegation might conceivably affect the election.

This is simply wrong. There is a very meaningful difference, and this difference puts into a question a judicial decision based on this difference not existing. Here is what the decision concludes from the nonexistence of this difference:

The harm caused by disclosing the fact that an Ethics Act complaint was filed, regardless of whether the complaint was frivolous or meritorious, is too negligible and remote to justify a blanket prohibition on such disclosure.

If the harm was so negligible and remote, why would so many people put so much effort into creating this harm by publicizing the fact that a complaint was filed, when they could otherwise, with no problem, simply reiterate what the complaint says? The fact that people tend to announce a filing rather than publicize their accusations makes it clear that even the people filing complaints, and their allies as well as the news media, disagree with the court, not in words, but in their actions.

The Stilp decision expressly disagrees with the second circuit's decision in Kamasinski v. Judicial Review Council, which I mentioned in an earlier blog post on this topic, and explained in my recent blog post. I hope that the Stilp decision is appealed to the Supreme Court, and that the Supreme Court will reconsider whether or not there is a meaningful difference, and then go with Kamasinski over Stilp.

Update: October 22, 2010
On September 30, 2010, the Middle District Judge granted Stilp's Motion for Summary Judgment and issued a permanent injunction as to the enforcement of Section 1108(k) of Pennsylvania's Ethics Act (pertaining to confidentiality) against a complainant who discloses the fact that he or she filed a complaint with the State Ethics Commission.

Below are three other decisions that agree with this decision:

Baugh v. Judicial Inquiry & Review Comm'n, 907 F.2d 440 (4th Cir. 1990)
Providence Journal Co. v. Newton, 723 F. Supp. 846, 852 (D.R.I. 1989)
Doe v. Gonzales, 723 F. Supp. 690 (S.D.Fla. 1988)

And in Roe v. Akamine, No. 91-00252 DAE (U.S.Dist. Ct. of Haw., Sept. 26, 1991), the state ethics commission stipulated that its confidentiality provision was unconstitutional and unenforceable.

Robert Wechsler
Director of Research-Retired, City Ethics

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