Response to legal threats from Alabama governor

Published 5:28 pm Wednesday, April 8, 2009

Dear editor,

I write again on behalf of the Sweet Home Alabama Coalition concerning Governor Bob Riley’s heavy-handed interference with our client’s first amendment rights. It is lamentable that several media outlets have capitulated to the governor’s demands to stop broadcasting our client’s political messages.

Riley is a public official responsible for upholding the law, including the Constitution. It is extremely unfortunate that his threats of litigation are having some success in squelching political speech in Alabama.

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Riley’s threat of litigation against the media outlets is nothing more than blatant infringement of the first amendment, including the prior restraint of political speech. Under the first amendment, the governor is prohibited from interfering with our client’s rights, especially “when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.” Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819, 829, 115 S.Ct. 2510, 2516, 132 L.Ed.2d 700 (1995). It has long been established that “discrimination against speech because of its message is presumed to be unconstitutional.” Id. “When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the first amendment is all the more blatant.” Id. See also Texas v. Johnson, 491 U.S. 397,414, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) (If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of a political message simply because an the message is offensive or disagreeable. Indeed, viewpoint-based discrimination is “[o]ne of the most egregious types of First Amendment violations.” Holloman v. Harland, 370 F.3d 1252 (11th Cir.2004) the information contained in the Sweet Home Alabama political advertisements is not false.

The advertisements quote from several Alabama newspapers such as the Selma Times-Journal and the Birmingham News. The advertisements also quote from the U.S. Senate’s “Final Report Before the Committee on Indian Affairs” 1091h Congress, 2d Session, June 22, 2006. These materials and many others adequately substantiate the information in the advertisements.

The governor’s appeal to a sole Decatur Daily News article to make his allegations of libel or defamation do not meet his burden of proving that the advertisements are false. He certainly has not sued the Birmingham News, the Selma Times-Journal or, of course the U.S. Senate. We would expect that most media outlets are sufficiently sophisticated to ignore the governor’s threats.

Our client is preparing to address the governor’s actions in court. We would like to avoid

involving the employees and officers of Alabama’s media companies in the litigation but may have no choice unless they are courageous enough to continue to provide Alabama’s citizens with the many viewpoints on the public debate about gambling in Alabama. We again urge you to resist the governor’s threats.


Edmund L. Novotny, attorney

Baker, Donelson, Bearman, Caldwell and Berkowitz, P.C.