Chamber of Commerce of the United States v. Moore ( 2002 )

REVISED APRIL 15, 2002
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-60779
_____________________
CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
MIKE MOORE, Attorney General, State of Mississippi; ERIC
CLARK, Secretary of State, State of Mississippi,
Defendants-Appellees.
__________________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
_________________________________________________________________
April 5, 2002
Before JOLLY and PARKER, Circuit Judges, and MILLS,* District
Judge.
E. GRADY JOLLY, Circuit Judge:
This appeal of a declaratory judgment by the Chamber of
Commerce of the United States of America involves the First
Amendment and state regulation of political advertisements aired
shortly before the election for members of the Mississippi Supreme
Court. During the 2000 election season, the Chamber ran four
television commercials describing the background and qualifications
of candidates seeking positions on the court. The defendant state
officials initiated a review of the advertisements to determine
*
District Judge of the Central District of Illinois, sitting
by designation.
whether they were subject to a Mississippi statute that requires
the disclosure of “independent expenditures” that “expressly
advocate” the election or defeat of a specific candidate. In
response, the Chamber sought a declaratory judgment that its
advertisements were not subject to the disclosure law. The
district court, in a thoughtful and reasoned opinion, held that the
advertisements were subject to state regulation because reasonable
minds could not differ that the advertisements advocate the
election of the specified candidates.
The Supreme Court has held that the First Amendment permits
regulation of political advertisements, but only if they expressly
advocate the election or defeat of a specific candidate. There is
some disagreement, however, concerning the standard to be applied
in determining whether a given advertisement contains “express
advocacy.” Today we follow most Courts of Appeal that have
considered the issue. We hold that a state may regulate a
political advertisement only if the advertisement advocates in
express terms the election or defeat of a candidate. Applying this
rule to the present case, we conclude that the Chamber’s
advertisements do not expressly advocate the election or defeat of
a candidate. This is true because the advertisements do not
contain explicit terms advocating specific electoral action by
viewers. As a consequence, the advertisements are not subject to
mandatory disclosure requirements for independent campaign
2
expenditures. Accordingly, we reverse the judgment of the district
court.
I
In November 2000, four of the nine positions on the
Mississippi Supreme Court were up for election. Less than one
month before the election, the Chamber ran four thirty-second
television advertisements, each extolling the virtues of a
different candidate running for a position on the court. The
advertisements featured three incumbents (former Chief Justice
Lenore Prather, Justice Kay Cobb, and Justice James Smith) and one
challenger (Judge Keith Starrett). The advertisements identified
the candidate and described in general terms the candidate’s
judicial philosophy, background, qualifications, and other positive
qualities. For example, the advertisements emphasized the
candidates’ “common sense” and their interest in protecting
“victims’ rights.”1 The advertisements concluded by displaying the
1
The audio portion of the advertisement featuring former Chief
Justice Prather is typical:
Lenore Prather – Chief Justice of
Mississippi’s Supreme Court.
Lenore Prather – Using common sense principles
to uphold the law.
Lenore Prather – Putting victims rights ahead
of criminals and protecting our Supreme Court
from the influence of special interests.
The first woman appointed to Mississippi’s
Supreme Court, Lenore Prather has 35 years
experience on the bench.
3
address of an Internet web site, www.LitigationFairness.org, that
contains a page with links to the campaign web sites of Justice
Cobb and Judge Starrett and to pages containing biographical
information for Justice Smith and former Chief Justice Prather.2
The election process for positions on the Mississippi Supreme
Court is governed by Mississippi’s election laws, which include
regulations requiring reporting and disclosure of “independent
expenditures” on candidates’ campaigns. See MISS. CODE. ANN. §§ 23-
15-801 et seq. Because the Chamber did not report its expenditures
on the advertisements to state election authorities, the
Mississippi Attorney General and Secretary of State initiated an
investigation to determine whether the advertisements violated the
state election laws.3 The Chamber brought an action in the
District Court for the Southern District of Mississippi seeking
declaratory relief from the application of the election
regulations. The Chamber argued that application of the state
regulations to its advertisements would impermissibly curtail its
right to free speech.
Lenore Prather. A fair and independent voice
for Mississippi.
2
The link for Justice Smith directs the viewer to a page on
the Litigation Fairness site describing Justice Smith’s background.
The link for former Chief Justice Prather directs the viewer to her
biography on the Mississippi Supreme Court web site.
3
The state acknowledges that there is no evidence that the
Chamber colluded with any of the candidates in developing the
advertisements.
4
The district court adopted a test first articulated by the
Ninth Circuit in Fed. Election Comm’n v. Furgatch, 807 F.2d 857
(9th Cir. 1987). It held that the advertisements were “express
advocacy” because, in the context of the ongoing election campaign,
no reasonable viewer would construe the advertisements as anything
but a directive to vote for the featured candidates --
notwithstanding that the advertisements’ express words did not call
for action on the part of the voter. The district court
specifically found that the advertisements “clearly champion[] the
election of a particular candidate” and “contain no true discussion
of issues.” It thus held that the Chamber’s advertisements could
be subject to state campaign regulations without offending the
First Amendment. The Chamber now appeals.
II
Because the Chamber’s challenge to Mississippi’s mandatory
disclosure statute follows a well-worn path, we begin with a brief
discussion of the applicable caselaw. Our review of the Supreme
Court decisions in this area leads us to the conclusion that
mandatory disclosure provisions like that in the Mississippi
statute apply only to communications containing words that
explicitly advocate the election or defeat of a particular
candidate. Because the advertisements at issue here do not contain
such express advocacy, we conclude that the First Amendment
5
protects these advertisements from governmental regulation.
A
Although the states, like the federal government, have
authority to regulate elections and election campaigns, the Supreme
Court has held that the First Amendment constrains the government’s
power to compel the disclosure of independent contributions and
expenditures, just as it constrains the government’s power to
regulate the amount of money that a person or group can contribute
to or spend on election campaigns. See Buckley v. Valeo, 424 U.S.
1, 19, 60-61 (1976).
In Buckley, candidates and political donors challenged the
constitutionality of a federal election statute that imposed limits
on individual campaign contributions, expenditures by candidates,
and independent expenditures “relative to” specific candidates.
Most relevant to our decision today, the Court also reviewed a
provision of the statute requiring “‘[e]very person (other than a
political committee or candidate) who makes contributions or
expenditures’ aggregating over $100 in a calendar year ‘other than
by contribution to a political committee or candidate’ to file a
statement with the [Federal Election] Commission.” Buckley, 424
U.S. at 74-75 (quoting 18 U.S.C. § 434(e) (1970 Supp. IV)). The
Court observed that compelled disclosure of independent
expenditures implicates the First Amendment because it “can
seriously infringe on privacy of association and belief” and it can
6
indirectly deter the exercise of First Amendment rights. Id. at
64-65. The Court recognized that the government has an important
interest in providing the electorate with information about the
sources of money spent during political campaigns and collecting
data to enforce campaign laws. The Court nevertheless held that a
provision requiring disclosure of independent campaign expenditures
involves a “significant encroachment[] on First Amendment rights”
and must therefore be subject to “exacting scrutiny.” Id. at 64-
67; see also id. at 75 (“In considering this provision [requiring
disclosure of independent expenditures by individuals or groups],
we must apply the same strict standard of scrutiny, for the right
of associational privacy developed in NAACP v. Alabama derives from
the rights of the organization’s members to advocate their personal
points of view in the most effective way.”).
To ensure that the mandatory disclosure provision in the
federal statute did not encroach on protected political speech by
individuals and groups, the Court held that the provision must be
narrowly construed to be consistent with the First Amendment. Id.
at 80. Accordingly, the Court interpreted the provision to “apply
only to expenditures for communications that in express terms
advocate the election or defeat of a clearly identified candidate
for federal office.”4 Id. at 44. In a footnote, the Court then
4
The Court articulated this standard in construing the section
of the federal election statute limiting expenditures by
individuals and groups “relative to a clearly identified candidate”
7
provided examples of terms of express advocacy: “‘vote for,’
‘elect,’ ‘support,’ ‘cast your ballot for,’ ‘Smith for Congress,’
‘vote against,’ ‘defeat,’ ‘reject.’” Id. at 44 n.52.
In Fed. Election Comm'n v. Massachusetts Citizens for Life,
Inc., 479 U.S. 238, 243 (1986) (“MCFL”), the Court applied the
“express advocacy” standard to a newsletter that encouraged readers
to “Vote Pro-Life” and listed the names of “pro-life” candidates in
the election. Observing that the “express advocacy” standard is
designed “to distinguish discussion of issues and candidates from
more pointed exhortations to vote for particular persons,” the
Court held that the newsletter contained “[j]ust such an
exhortation.” Id. The Court reasoned that an explicit directive
to vote “pro-life” read in conjunction with named “pro-life”
candidates was only “marginally less direct” than a specific
exhortation to vote for the named candidates. Id. Thus, the MCFL
Court extended the “express advocacy” inquiry to include
consideration of the logical relationship between an express term
advocating election or defeat and the names of specific candidates
identified in the communication.
In reviewing the application and constitutionality of various
state and federal election regulations, most Courts of Appeal have
adopted the view that, under Buckley and MCFL, the government may
to $1000 per calendar year. Buckley, 424 U.S. at 39. Later in its
opinion, the Court adopted this standard during its review of the
statute’s mandatory disclosure provision. See id. at 77-80.
8
regulate only those communications containing explicit words
advocating the election or defeat of a particular candidate.5
These courts rely primarily on Buckley’s emphasis on (1) the need
for a bright-line rule demarcating the government’s authority to
regulate speech and (2) the need to ensure that regulation does not
impinge on protected issue advocacy.6
5
See Faucher v. Fed. Election Comm'n, 928 F.2d 468, 470-71
(1st Cir. 1991) (“Express advocacy is language which ‘in express
terms advocate[s] the election or defeat of a clearly identified
candidate’ through the use of such phrases as ‘vote for,’ ‘elect,’
‘support,’ ‘cast your ballot for,’ ‘Smith for Congress,’ ‘vote
against,’ ‘defeat,’ and ‘reject.’” (quoting Buckley, 424 U.S. at 44
& n.52)); Fed. Election Comm’n v. Cent. Long Island Tax Reform
Immediately Comm., 616 F.2d 45, 53 (2d Cir. 1980) (en banc)
(rejecting interpretation of federal election statute allowing FEC
to regulate statements made “for the purpose, express or implied,
of encouraging election or defeat”); Fed. Election Comm'n v.
Christian Action Network, Inc., 110 F.3d 1049, 1051 (4th Cir. 1997)
(“[T]he Federal Election Campaign Act [can] be applied consistently
with the First Amendment only if it [is] limited to expenditures
for communications that literally include words which in and of
themselves advocate the election or defeat of a candidate.”); Iowa
Right to Life Comm., Inc. v. Williams, 187 F.3d 963, 969 (8th Cir.
1999) (“The Supreme Court's focus was on whether the communication
contains ‘express’ or ‘explicit’ words of advocacy for the election
or defeat of a candidate.”); Citizens for Responsible Gov’t State
Political Action Comm. v. Davidson, 236 F.3d 1174, 1187 (10th Cir.
2000) (“[C]ommunications that do not contain express words
advocating the election or defeat of a particular candidate are
deemed issue advocacy, which the First Amendment shields from
regulation.”).
6
See, e.g., Christian Action Network, 110 F.3d at 1051 (noting
that the Buckley Court “opted for the clear, categorical
limitation, that only expenditures for communications using
explicit words of candidate advocacy are prohibited, so that
citizen participants in the political processes would not have
their core First Amendment rights to political speech burdened by
apprehensions that their advocacy of issues might later be
interpreted by the government as, instead, advocacy of election
result”); Citizens for Responsible Gov’t, 236 F.3d at 1187 (“In
order to counter the tendency of the line between protected ‘issue
9
The sole departure from this bright-line approach among our
sister circuits came in Fed. Election Comm’n v. Furgatch, 807 F.2d
857 (9th Cir.), cert. denied, 484 U.S. 850 (1987).7 The Ninth
Circuit summarized its holding in that case:
We conclude that speech need not include any
of the words listed in Buckley to be express
advocacy under the Act, but it must, when read
as a whole, and with limited reference to
external events, be susceptible of no other
reasonable interpretation but as an
exhortation to vote for or against a specific
candidate.
Id. at 864. The court further elaborated:
First, even if it is not presented in the
clearest, most explicit language, speech is
“express” for present purposes if its message
is unmistakable and unambiguous, suggestive of
only one plausible meaning. Second, speech
may only be termed “advocacy” if it presents a
clear plea for action, and thus speech that is
merely informative is not covered by the Act.
advocacy’ and regulable ‘express advocacy’ to ‘dissolve in
practical application,’ the Buckley Court construed the allegedly
vague statute at issue as applicable only ‘to communications
containing express words of advocacy of election or defeat’”
(quoting Buckley, 424 U.S. at 44 & n.52)); Iowa Right to Life
Comm., 187 F.3d at 969 (“To avoid uncertainty . . . the Supreme
Court in Buckley, established a bright-line test. . . .”).
7
One district court and several state courts have also applied
this approach. See, e.g., Elections Bd. of State of Wis. v.
Wisconsin Mfrs. & Commerce, 597 N.W.2d 721, 732 (Wis. 1999);
Osterberg v. Peca, 12 S.W.3d 31, 53 (Tex. 2000); Federal Election
Comm'n v. Nat’l Organization for Women, 713 F. Supp. 428, 433
(D.D.C. 1989); cf. Federal Election Comm'n v. Christian Coalition,
52 F. Supp. 2d 45, 63-64 (D.D.C. 1999) (holding that “[a]lthough the
implicit message is unmistakable, in explicit terms [a statement in
a fundraising letter] is prophecy rather than advocacy” and that a
“scorecard” was not express advocacy because “a reasonable person
could understand [the] statement to be a directive to engage in
issue advocacy”).
10
Finally, it must be clear what action is
advocated. Speech cannot be “express advocacy
of the election or defeat of a clearly
identified candidate” when reasonable minds
could differ as to whether it encourages a
vote for or against a candidate or encourages
the reader to take some other kind of action.
Id.8 Although the Ninth Circuit’s approach does not stray far from
other articulations of the “express advocacy” standard, it does
introduce two elements not present in the limited inquiry endorsed
by the other circuits: (1) “limited reference” to the context of
the communication and (2) reference to whether “reasonable minds”
could differ about the meaning of the communication.
These aspects of the Ninth Circuit’s approach in Furgatch were
essentially rejected by courts that adopted the bright-line rule
requiring explicit words directing viewers to vote for or against
a particular candidate. For example, in Virginia Society for Human
Life, Inc. v. Fed. Election Comm'n, 263 F.3d 379, 392 (4th Cir.
2001), the Fourth Circuit found a federal regulation
unconstitutionally overbroad because it defined express advocacy as
a communication that, when taken as a whole, “‘could only be
interpreted by a reasonable person as containing advocacy of the
election or defeat of one or more clearly identified
candidate(s).’” The court held that “[t]he regulation goes too far
8
The Furgatch Court applied this analysis to a newspaper
advertisement against then-President Jimmy Carter urging readers
“Don’t let him do it.” The court concluded that the advertisement
was express advocacy when read in context because “reasonable minds
could not dispute that [the] advertisement urged readers to vote
against Jimmy Carter.” Furgatch, 807 F.2d at 864.
11
because it shifts the determination of what is ‘express advocacy’
away from the words ‘in and of themselves’ to ‘the unpredictability
of audience interpretation.’” Id. at 392. The Eighth Circuit
reached a similar conclusion when it found that an election
regulation defining express advocacy according to “what reasonable
people or reasonable minds would understand by the communication”
was unconstitutional because the regulation “does not require
express words of advocacy.” Iowa Right to Life, 187 F.3d at 969.
We agree that the Furgatch test is too vague and reaches too
broad an array of speech to be consistent with the First Amendment
as interpreted in Buckley and MCFL.9 Instead, we iterate that the
language of the communication must, by its express terms, exhort
the viewer to take a specific electoral action for or against a
particular candidate. See Buckley, 424 U.S. at 44 (interpreting
federal election statute to “apply only to expenditures for
communications that in express terms advocate the election or
defeat of a clearly identified candidate” (emphasis added)).
Although application of this rule may require making
9
We also reject amici’s definition of express advocacy:
“[W]hen an ad contains only an express endorsement of a candidate’s
qualifications for public office . . . and contains no discussion
of any issue as a topic worthy of its own attention, then the ad is
an ‘electoral’ rather than ‘issue’ ad.” This definition involves
an impermissible inquiry into what issues are “worthy” topics of
discussion. We also note that neither Buckley nor MCFL adopted an
“express endorsement” test. Indeed, such a test necessarily would
encompass communications that contain no “express terms
advocat[ing] the election or defeat of a clearly identified
candidate.” Buckley, 424 U.S. at 44.
12
straightforward connections between identified candidates and an
express term advocating electoral action (as in MCFL), the focus
must remain on the plain meaning of the words themselves.
We must admit, as the Furgatch Court correctly observed, that
this narrow interpretation of “express advocacy” undoubtedly allows
individuals and organizations to circumvent electoral regulations
simply by omitting from their communications the genre of words and
phrases that convey the same meaning as the words listed in
Buckley. This observation, however, does not affect our reading of
Buckley. Indeed, the Buckley Court recognized, for example, that
confining the federal limitation on expenditures in this manner
“undermines the limitation's effectiveness as a loophole-closing
provision by facilitating circumvention by those seeking to exert
improper influence upon a candidate or office-holder.” Buckley,
424 U.S. at 45. The Court’s overriding concern, however, was that
a statute with an ambiguous scope would chill political discourse:
“[T]he supposedly clear-cut distinction
between discussion, laudation, general
advocacy, and solicitation puts the speaker in
these circumstances wholly at the mercy of the
varied understanding of his hearers and
consequently of whatever inference may be
drawn as to his intent and meaning. Such a
distinction offers no security for free
discussion. In these conditions it blankets
with uncertainty whatever may be said. It
compels the speaker to hedge and trim.”
Id. at 43 (quoting Thomas v. Collins, 323 U.S. 516, 535 (1945)).
To avoid this result, the Court emphasized the need for a clear
13
line between regulated and unregulated speech under the statute.
The Court adopted an “express advocacy” standard focusing on the
explicit language of the communication because “the distinction
between discussion of issues and candidates and advocacy of
election or defeat of candidates may often dissolve in practical
application.” Id. at 42.10
In sum, we believe that a narrow interpretation of “express
advocacy” is faithful to the language and spirit of Buckley and
MCFL. It clearly avoids the pitfalls of making application of the
First Amendment dependent on the understanding of the reasonable
person under the circumstances.11 Accordingly, we hold that a
communication constitutes “express advocacy” -- and may therefore
be subject to mandatory disclosure regulations -- only if it
contains explicit words advocating the election or defeat of a
clearly identified candidate.
10
See also Iowa Right to Life, 187 F.3d at 969 (recognizing
the State’s concern “that persons or organizations will
surreptitiously advocate the election or defeat of a named
candidate but avoid legitimate government regulation and reprisal
by simply omitting ‘magic words’ of advocacy” but concluding that
a bright-line test is required to avoid chilling free speech).
11
The present case provides a good example of such pitfalls.
In order to find that the advertisements here were subject to state
regulation, the district court had to draw a distinction between
the content of the advertisements and the court’s view –- as
thoughtful as it may be -- of “true issue advocacy.” Chamber of
Commerce v. Moore, No. 3:00-CV-778WS, slip op. at 26 (S.D.Miss.
Nov. 2, 2000); see also Furgatch, 807 F.2d at 864 (concluding that
an advertisement was not “issue-oriented speech” because it
“directly attacks a candidate, not because of any stand on the
issues of the election, but for his personal qualities and alleged
improprieties in the handling of his campaign”).
14
B
We now turn to apply these principles to this case. The
Mississippi election statute at issue here provides that each
person who makes aggregate “independent expenditures” of more than
$200 during a calendar year must file a report with the state
disclosing the amount and source of the expenditure and a statement
that the expenditure was not made in cooperation with a candidate.
See MISS. CODE ANN. § 23-15-809. “Independent expenditures” are
defined in the statute as “expenditure[s] by a person expressly
advocating the election or defeat of a clearly identified candidate
which [are] made without cooperation or consultation with any
candidate or any authorized committee or agent of such candidate.”
MISS. CODE ANN. § 23-15-801(j). Because the Mississippi legislature
essentially adopted the language of the Supreme Court’s decisions
in Buckley and MCFL in drafting this statute, all that remains is
to determine whether the Chamber’s advertisements constitute
“express advocacy” under the standard articulated above.
There is no question that the Chamber’s advertisements do not
contain any of the phrases that Buckley cites as examples of
“express advocacy.” Nor do the advertisements contain other
explicit words advocating the election of the featured candidates
or exhorting viewers to take specific electoral action during the
elections. Indeed, the advertisements do not refer at all to the
impending elections.
15
Amici nevertheless argue that the Chamber’s advertisements
are express advocacy because their “express content, when
considered as a whole, unambiguously constitutes an endorsement of
a particular candidate for public office.” Observing that neither
Buckley nor MCFL requires “succinct advocacy,” amici argue that the
advertisements’ references to positive attributes of specific
candidates are sufficient to bring the advertisements within the
scope of the statute -- despite the absence of explicit words
directing viewers to take a specific action.12 The State and amici
also point out that the advertisements presented only favorable
information about the candidates. Because the “essential nature”
of each advertisement is an endorsement of the named candidate,
amici contend that the advertisements may be subjected to
disclosure requirements without offending the First Amendment.
We think it is clear that the examples of express advocacy
listed in the Buckley footnote are illustrative rather than
exhaustive because there are a variety of other words and phrases
that convey precisely the same meaning.13 But express advocacy
12
Amici also argue that the advertisements must be express
advocacy because they do not meaningfully discuss public issues and
thus cannot be considered issue advocacy. This argument
incorrectly assumes that express advocacy is defined as the absence
of issue advocacy. As explained above, the nature of the language
in the communication -- that is, the presence or absence of
explicit words advocating the election or defeat of a specific
candidate -- determines whether it constitutes issue advocacy or
express advocacy.
13
Cf. Christian Coalition, 52 F. Supp. 2d at 65 (“While the
‘express advocacy’ standard is susceptible of circumvention by all
16
necessarily requires the use of language that explicitly and by its
own terms advocates the election or defeat of a candidate. If the
language of the communication contains no such call to action, the
communication cannot be “express advocacy.” Thus, communications
that discuss in glowing terms the record and philosophy of specific
candidates, like the advertisements at issue here, do not
constitute express advocacy under Buckley and MCFL unless they also
contain words that exhort viewers to take specific electoral action
for or against the candidates. Cf. Clifton v. Fed. Election
Comm'n, 114 F.3d 1309, 1311 (1st Cir. 1997) (“[A]s glossed by the
Supreme Court to avoid ‘overbreadth’ [in MCFL], the [federal
election] statute does not prevent corporations and unions from
engaging in issue advocacy including publication of the records and
positions of federal election candidates.”).
The state emphasizes that the Chamber’s advertisements aired
on the eve of the elections for the supreme court and were
virtually identical to the candidates’ own advertisements -- except
that they omitted the phrase “vote for [the featured candidate],”
which appeared at the end of the candidates’ advertisements. The
state contends that these facts, viewed together with the content
of the Chamber’s advertisements, supports its position that the
manner of linguistic artifice, merely changing the verb ‘vote’ into
the noun, ‘trip to the voting booth’ is insufficient to escape the
limited reach of ‘express advocacy.’”); Furgatch, 807 F.2d at 863
(noting that the phrases listed in Buckley “do[] not exhaust the
capacity of the English language to expressly advocate the election
or defeat of a candidate”).
17
advertisements constitute express advocacy. Indeed, amici argue
that the advertisements “make no sense except in the context of an
election campaign.” We do not necessarily gainsay this
observation.
As the above discussion makes clear, however, these contextual
factors are irrelevant to our determination whether the
advertisements contain express advocacy. The Court in MCFL did not
rely on the factual context in which the communication was made in
determining whether it contained express advocacy.14 Instead, it
held that courts reviewing a communication may consider the logical
relationship between an express term advocating specific electoral
action and the names of candidates clearly identified in the
communication. We therefore do not believe that MCFL retreated
from the requirement that express advocacy must contain explicit
words advocating electoral action. See MCFL, 479 U.S. at 249
(noting that Buckley concluded that “a finding of ‘express
advocacy’ depended upon the use of language such as ‘vote for,’
‘elect,’ ‘support,’ etc.”). In any event, even under the test
articulated in Furgatch, the timing of the advertisements (or other
contextual factors) cannot transform general informational
14
The state suggests that the MCFL Court took timing into
account in its review of the “Special Edition” newsletter at issue
in that case. While the Court did observe that the special edition
was released to coincide with an election and had a higher
circulation than normal editions of the newsletter, the Court did
not rely on these facts in concluding that the newsletter contained
express advocacy. See MCFL, 479 U.S. at 249-50.
18
statements about candidates into a call for specific electoral
action. See Furgatch, 807 F.2d at 864 (“[S]peech may only be
termed ‘advocacy’ if it presents a clear plea for action, and thus
speech that is merely informative is not covered by the Act.”); see
also id. at 863 (“Context remains a consideration, an ancillary
one, peripheral to the words themselves.”).
Amici also suggest that statements in the advertisements like
“Lenore Prather -- A fair and independent voice for Mississippi”
are only “marginally less direct” than “Smith for Congress,” which
is listed among the examples of express advocacy in Buckley.
Because neither phrase includes a verb like “vote” or “elect,”
amici reason that both phrases depend on their context to convey
meaning. We find this argument unpersuasive because the two
phrases are not synonymous: The first connects a name to a
positive character trait while the second connects a name to an
elected office. As we noted above, favorable statements about a
candidate do not constitute express advocacy, even if the
statements amount to an endorsement of the candidate.15 Even
assuming that the phrases were roughly equivalent, “Smith for
Congress” has an accepted meaning that does not vary with context.
15
Following the logic of amici’s argument, any laudatory
phrase uttered in connection with a candidate’s name during
election season would be the equivalent of “Smith for Congress.”
We think that this broad interpretation of express advocacy runs
counter to the Supreme Court’s stated concerns about the
overbreadth of government regulation of political speech. See
Buckley, 424 U.S. at 42-43, 64-67, 80.
19
In contrast, the meaning of the phrases in the advertisements could
conceivably mean “vote for Candidate X” only when considered in the
context of an event extraneous to the four corners of the
advertisement. Because such contextual factors are irrelevant to
our inquiry, the meaning of phrases such as “Judge Keith Starrett--
a common sense justice” is at best ambiguous -- unless matters
outside the advertisement are taken into account -- and cannot
constitute express advocacy.
Finally, the State suggests that, even if the content of the
advertisements does not expressly advocate the election of the
featured candidates, the web site referenced in the commercials
(www.LitigationFairness.org) did so because it included a page
directing viewers to two of the candidates’ campaign web sites
under the heading “Mississippi Candidate Information.” The State
argues that we must consider this form of indirect advocacy in
determining whether the advertisements themselves are express
advocacy. However, the LitigationFairness.org site did not itself
contain any statements advocating the election or defeat of
candidates. As a result, we find that the connection between the
advertisements and the candidates’ official sites is simply too
tenuous to make the advertisements “express advocacy.”
Because the Chamber’s advertisements do not contain explicit
words exhorting viewers to take specific electoral action for or
against the featured candidates, we hold that the advertisements do
20
not constitute “express advocacy” under the bright line approach
adopted above.16 As a consequence, the district erred in holding
that the advertisements are subject to mandatory disclosure under
the Mississippi election statute.
III
We recognize that the result we reach in this case may be
counterintuitive to a commonsense understanding of the message
conveyed by the television political advertisements at issue.
Nevertheless, the result is compelled by the First Amendment, as
interpreted by the Supreme Court in its effort to balance the
state’s interest in regulating elections with the constitutional
right of free speech. Accordingly, for the foregoing reasons, we
hold that the First Amendment protects the Chamber’s
advertisements, and consequently the advertisements are not subject
to regulation under the Mississippi election statute. Accordingly,
the judgment of the district court is REVERSED and the case is
REMANDED for entry of judgment for the plaintiff-appellant.
REVERSED and REMANDED.
16
Cf. Perry v. Bartlett, 231 F.3d 155, 159-61 (4th Cir. 2000)
(finding that advertisements that were critical of certain
candidates but that “but did not expressly exhort voters to take a
particular electoral action” were not express advocacy, despite the
fact that the sponsor admitted outside the advertisement that it
sought to defeat the candidates), cert. denied, 121 S. Ct. 1229
(2001).
21