IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

:

CAMPAIGN LEGAL CENTER, et al. :

Plaintiffs, :

:

v. : Civil Action No. 1:19-cv-02336-JEB

:

FEDERAL ELECTION COMMISSION :

Defendant, :

:

HILLARY FOR AMERICA and :

CORRECT THE RECORD :

Defendant-Intervenors. :

PROPOSED AMICUS CURIAE BRIEF

OF THE INSTITUTE FOR FREE SPEECH

IN SUPPORT OF NO PARTY

ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

ZAC MORGAN (No. 1032211)

INSTITUTE FOR FREE SPEECH

1150 Connecticut Avenue, N.W.

Suite 801

Washington, D.C. 20036

202.301.3300

zmorgan@ifs.org

Counsel for Amicus Curiae

Date: September 9, 2020

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TABLE OF CONTENTS

Corporate Disclosure Statement ..................................................................................................... ii

Table of Authorities ....................................................................................................................... iii

Introduction......................................................................................................................................1

Interest of Amicus Curiae ................................................................................................................1

Argument .........................................................................................................................................2

I. The Federal “Press Exemption” Need Not Be Used To Decide This Case ...................2

a. The history and application of the federal media exemption...................................4

b. The FEC’s application of the press exemption is constitutionally problematic ......7

Conclusion .....................................................................................................................................10

Certificate of Service .....................................................................................................................11

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CORPORATE DISCLOSURE STATEMENT

The Institute for Free Speech, a nonprofit corporation organized under the laws of the 

Commonwealth of Virginia, hereby states that it has no parent companies, subsidiaries, or affiliates 

and that it does not issue shares to the public.

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TABLE OF AUTHORITIES

Cases

Aldrich v. Press Printing Co.,

9 Minn. 133 (Minn. 1864)....................................................................................................8

Austin v. Mich. State Chamber of Commerce,

494 U.S. 652 (1990).............................................................................................................9

Bailey v. State of Me. Comm’n on Gov’tl Ethics and Election Practices, 

900 F. Supp. 2d 75 (D. Me. 2012) ................................................................................... 5-6

Buckley v. Valeo,

424 U.S. 1 (1976).................................................................................................................4

*Citizens United v. Fed. Election Comm’n,

558 U.S. 310 (2010).........................................................................................................7, 9

*Citizens United v. Gessler,

773 F.3d 200 (10th Cir. 2014) .........................................................................................3, 9

Fed. Election Comm’n v. Mass. Citizens for Life, Inc.,

479 U.S. 238 (1986).........................................................................................................5, 6

Fed. Election Comm’n v. Phillips Publishing,

517 F. Supp. 1308 (D.D.C. 1981)....................................................................................4, 5

First Nat’l Bank of Bos. v. Bellotti,

435 U.S. 765 (1978).............................................................................................................9

Lovell v. City of Griffin,

303 U.S. 444 (1938).............................................................................................................7

McConnell v. Fed. Election Comm’n,

540 U.S. 93 (2003)...........................................................................................................4, 9

McConnell v. Fed. Election Comm’n,

251 F. Supp. 2d 176 (D.D.C. 2003).....................................................................................9

Near v. Minn.,

283 U.S. 697 (1931)......................................................................................................... 7-8

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Reader’s Digest Ass’n v. Fed. Election Comm’n,

509 F. Supp. 1210 (S.D.N.Y. 1981).....................................................................................4

United States v. Oakar,

111 F.3d 146 (D.C. Cir. 1997).............................................................................................9

Statutes and Regulations

52 U.S.C. § 30101(9)(B)(i)..........................................................................................................3, 4

52 U.S.C. § 30104(f)(3)(B)(i)......................................................................................................3, 4

52 U.S.C. § 30106(c) .......................................................................................................................2

52 U.S.C. § 30107(a)(6)...................................................................................................................2

52 U.S.C. § 30109(a)(8)...................................................................................................................2

11 C.F.R. § 100.73...........................................................................................................................4

Other Authorities

Fed. Election Comm’n, 

Advisory Opinion 2004-07 (“MTV”) ..................................................................................6

Fed. Election Comm’n, 

Advisory Opinion 2004-30 (“Citizens United”)..................................................................5

Fed. Election Comm’n, 

Advisory Opinion 2005-07 (“Mayberry”) ...........................................................................6

Fed. Election Comm’n, 

Advisory Opinion 2008-14 (“Melothé”)..............................................................................5

Fed. Election Comm’n, 

Advisory Opinion 2010-08 (“Citizens United II”) ..........................................................5, 6

Fed. Election Comm’n, 

Advisory Opinion 2011-11 (“Colbert”)...........................................................................5, 6

Fed. Election Comm’n,

Advisory Opinion 2016-01 (“Ethiq”) ..................................................................................5

Fed. Election Comm’n, 

Advisory Opinion 2019-05 (“System73”) ...........................................................................5

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Nominations & Appointments, “President Donald J. Trump Announces Intent to Nominate and 

Appoint Individuals to Key Administration Posts,” 

The White House (June 26, 2020) .......................................................................................2

Michael McConnell, Reconsidering Citizens United as a Press Clause Case, 

123 Yale L.J. 412 (Nov. 2013) ..................................................................................7, 8, 10

David B. Sentelle, Freedom of the Press: A Liberty for All or a Privilege for a Few?, 

2013-14 Cato Sup. Ct. Rev. 15 (2013-2014) .......................................................................8

Statement of Reasons of Vice Chairman Matthew S. Petersen and Commissioner Caroline C. 

Hunter, 

In the Matter of Correct the Record, et al., MURs 6940, 7097, 7146, 7160, 7193

Fed. Election Comm’n (Aug. 21, 2019) ..........................................................................2, 4

Statement of Reasons of Vice Chairman Bradley A. Smith and Commissioners Michael E. Toner 

and David M. Mason, 

In the Matter of Wal-Mart Stores, Inc., MUR 5315, 

Fed. Election Comm’n (Aug. 25 2003) ...............................................................................3

Potter Stewart, Or of the Press,

26 Hastings L.J. 631 (Jan. 1975)..........................................................................................7

Eugene Volokh, Freedom for the Press as an Industry, or for the Press as a Technology? 

From the Framing to Today, 

160 U. Pa. L. Rev. 459 (Jan. 2012)..................................................................................7, 8

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INTRODUCTION

Amicus Institute for Free Speech (“Institute”) has no dog in this fight. At this time, it takes 

no position on whether Correct the Record (“CTR”) and Hillary for America (“HFA”) illegally 

coordinated their campaign activities, nor on whether the Federal Election Commission (“FEC” or 

“Commission”) should have found reason to believe such based on Plaintiffs’ Campaign Legal 

Center and Catherine Kelley’s (“CLC”) complaint. 

The Institute does write to flag an important and unsettled issue that this Court briefly 

touched upon at the motion to dismiss stage: the so-called media, or press, exemption. Although 

the FEC did not rely on the press exemption in its disposition of the complaint, this Court addressed 

the exemption in denying the motion to dismiss. The FEC considers the media exemption to be 

“for the media” and “the media” only, and this Court suggested that this is a correct understanding 

of the exemption. Mem. Op. (ECF No. 33) at 26. In fact, it is unclear whether the Commission’s

cabining of this statutory protection in that fashion is consistent with the First Amendment’s Press 

Clause. Properly understood, the Press Clause protects the acts of publishing and distribution, not 

the publishing or media industry. Given that the press exemption was not the basis for the FEC’s 

action, and that the issue has not been fully briefed by the parties, Amicus respectfully suggests 

that reference to the press exemption is not necessary to resolve this matter and accordingly, should 

not be addressed by the Court in resolving this matter. 

INTEREST OF AMICUS CURIAE1

As explained in the accompanying motion for leave to file, the Institute is dedicated to the 

protection and defense of the rights of speech, press, assembly, and petition enshrined in the First 

1 No other party’s counsel authored this brief in whole or in part, nor did any person contribute 

money that was intended to fund the preparation or submission of this brief.

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Amendment. Here, it seeks to highlight certain constitutional equities impacted by the FEC’s 

narrow reading of the media exemption.

ARGUMENT

I. The Federal “Press Exemption” Need Not Be Used To Decide This Case.

This case focuses on a narrow question: whether an administrative complaint brought by a 

third party was inappropriately dismissed by a government agency. Pl. Mem. in Sup. of Mot. for 

Summ. J. (ECF No. 35) at 1; Def.-Int. Mem. in Supp. of Cross-Mot. for Summ. J. (ECF No. 38-1) 

at 2. Plaintiffs alleged that the Clinton campaign illegally coordinated with Correct the Record, 

and the FEC rejected those allegations and dismissed the complaint. Statement of Reasons of Vice 

Chairman Matthew S. Petersen and Commissioner Caroline C. Hunter, In the Matter of Correct 

the Record, et al., MURs 6940, 7097, 7146, 7160, 7193 (Aug. 21, 2019) (“Controlling 

Commissioners’ Statement”).2It is undisputed that CLC’s complaint was dismissed because the 

controlling commissioners did not buy Plaintiffs’ theory of coordination, not due to its review of 

any proffered defense involving the media exemption. ECF No. 35 at 3, 14-15, 35-36; ECF No. 

38-1 at 42-43.

Yet, when this Court rejected the Intervenors’ motion to dismiss3, it briefly discussed the 

proposition that “op-eds written in support of [Hillary] Clinton by senior CTR personnel fell under 

2 Available at: https://eqs.fec.gov/eqsdocsMUR/6940_1.pdf

3 At the present time, the FEC is statutorily incapable of defending its decision not to find reason 

to believe that the Intervenors broke the law. 52 U.S.C. §§ 30106(c) and 30107(a)(6) (jointly 

requiring “the affirmative vote of 4 members of the Commission” to “defend... any civil action” 

under § 30109(a)(8)). At present, there are only three serving commissioners. The President has 

announced an intention to nominate a fourth commissioner. Nominations & Appointments, 

“President Donald J. Trump Announces Intent to Nominate and Appoint Individuals to Key 

Administration Posts,” The White House (June 26, 2020); available at:

https://www.whitehouse.gov/presidential-actions/president-donald-j-trump-announces-intentnominate-appoint-individuals-key-administration-posts-43/.

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the ‘media exemption’ of 11 C.F.R. § 100.73, which exempts from the definition of ‘contribution’ 

‘any cost incurred in covering or carrying a news story, commentary, or editorial.’” Mem. Op. at 

26 (quoting 11 C.F.R. § 100.73) (cleaned up, brackets supplied). The Court found that it could not 

credit such a claim of immunity, because “the media exemption...is for the media,” suggesting 

that neither Correct the Record nor the Clinton campaign functions as the institutional press. Id. at 

26. As Amicus has noted, this is a fair reading of the current standard as applied by the FEC. See 

Statement of Reasons of Vice Chairman Bradley A. Smith and Commissioners Michael E. Toner 

and David M. Mason, In the Matter of Wal-Mart Stores, Inc., MUR 5315, Fed. Election Comm’n 

(Aug. 25 2003).4 The media exemptions of federal campaign finance law, e.g. 52 U.S.C. § 

30101(9)(B)(i); 52 U.S.C. § 30104(f)(3)(B)(i), and 11 C.F.R. § 100.73, are interpreted by the FEC 

as shielding the “media industry.”

But this license rests on questionable ground. As the Tenth Circuit observed in Citizens 

United v. Gessler, 773 F.3d 200, 212 (10th Cir. 2014) (“Gessler”), “as a constitutional 

proposition,” the “justification[]...that a valid distinction exists between corporations that are part 

of the media industry and other corporations that are not involved in the regular business of 

imparting news to the public,” is one that “can be disposed of summarily.” (citation and quotation 

marks omitted). Such a “distinction has no basis in the First Amendment and cannot immunize 

differential treatment from a First Amendment challenge.” Id. (emphasis supplied). Given that the 

media exemption raises complex issues of First Amendment law, it should not be used to shed 

light, in any direction, on the question of whether the Commission acted appropriately in 

4 Available at: https://www.fec.gov/files/legal/murs/5315/000001AA.pdf

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dismissing CLC’s complaint, 5 at least without the benefit of thorough examination and separate 

briefing on the media exemption itself.6

A. The history and application of the federal media exemption.

All major federal campaign finance laws enacted since 1974 have included a protection for 

“the press” or “the media.” 52 U.S.C. § 30101(9)(B)(i); 52 U.S.C. § 30104(f)(3)(B)(i). This

immunity was first enacted in the Federal Election Campaign Act (“FECA”), which exempts from 

its coverage expenditures for a “news story, commentary, or editorial distributed through the 

facilities of any broadcasting station, news, magazine, or other periodical publication, unless such 

facilities are owned or controlled by any political party, political committee, or candidate.” 7 52

U.S.C. § 30101(9)(B)(i). The FEC’s understanding of this statutory exemption comes not from 

Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam) or McConnell v. Federal Election Commission,

540 U.S. 93 (2003), but principally from two 1981 district court cases, Federal Election 

Commission v. Phillips Publishing, 517 F. Supp. 1308 (D.D.C. 1981) (“Phillips Publishing”) and 

Reader’s Digest Association v. Federal Election Commission, 509 F. Supp. 1210 (S.D.N.Y. 1981) 

5 While the FEC did not address the media exemption at all below, should this complaint be 

remanded with the understanding that CLC’s coordination theory is a proper reading of the law, 

the Commission will likely have to address whether the media exemption shields any of 

Intervenors’ joint activities. And if those acts are found not to slot into the press exemption, it 

hardly staggers the imagination that the constitutionality of the FEC’s application of the media 

exemption would end up before this Court on appeal from such an adverse finding. 

6

In the event that this Court orders such briefing, Amicus requests that it be permitted to file papers 

on the question.

7 Of course, the press exemption would not protect Correct the Record if it were true that Mrs. 

Clinton’s campaign was in actual control of it. E.g. Controlling Commissioners’ Statement at 6 

(“Correct the Record’s founder and chairman David Brock...describes [CTR] as a ‘surrogate arm 

of the campaign’ and ‘under [Hillary for America’s] thumb”) (second brackets in original, citation 

omitted).

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(“Reader’s Digest”) See Fed. Election Comm’n, Advisory Opinion 2016-01 (“Ethiq”) at 3 

(applying Reader’s Digest and Phillips Publishing to determine whether the applicant is protected 

by the media exemption).8 Thus, to vindicate “the right of the media,” Phillips Publishing, 517 F.

Supp. at 1312 (ellipsis removed, citation omitted), the FEC determines whether an entity is 

protected by the media exemption through “a two-step analysis.” Fed. Election Comm’n, Advisory 

Opinion 2011-11 (“Colbert”) at 6.

“First, the Commission asks whether the entity engaging in the activity is a press entity,” 

id., by “focus[ing] on ‘whether the entity in question is in the business of producing on a regular 

basis a program that disseminates news stories, commentary, and/or editorials.’” Fed. Election 

Comm’n, Advisory Opinion 2019-05 (“System73”) at 4 (quoting Fed. Election Comm’n, Advisory 

Opinion 2008-14 (“Melothé”) at 4)). Regularity is the touchstone for determining if an entity is a 

“press” institution. Compare Fed. Election Comm’n, Advisory Opinion 2004-30 (“Citizens 

United”) at 7 (denying exemption for documentary urging viewers to vote against John Kerry for 

President because “Citizens United does not regularly produce documentaries or pay to broadcast 

them on television. In fact, the information you provided indicates that Citizens United has 

produced only two documentaries since its founding in 1988...”) with Fed. Election Comm’n, 

Advisory Opinion 2010-08 (“Citizens United II”) at 2 (granting media exemption and noting that 

“[s]ince 2004, Citizens United has produced and distributed fourteen films, [and]...also has four 

additional films currently in production”); Bailey v. State of Me. Comm’n on Gov’tl Ethics and 

8 The Commission also often references a small portion of Federal Election Commission v. 

Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986) (“MCFL”), where the Court determined 

that FECA’s media exemption could not protect a “Special Edition” of the MCFL newsletter since 

“[n]o characteristic of the Edition associated it in any way with the normal MCFL publication[s].” 

479 U.S. at 250-251. The MCFL Court did not pass on the constitutionality of the media exemption 

as interpreted by the FEC, but merely observed that MCFL’s activities did not fit within the 

exception.

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Election Practices, 900 F. Supp. 2d 75, 89 (D. Me. 2012) (quoting FEC determination that press 

exemption did not apply because “‘[t]he website existed for a specific and limited time only. It 

first appeared just prior to the gubernatorial election and was taken down shortly before the 

election’”) (citation omitted). 

If an entity is regularized enough to qualify as a “press entity,” the Commission next turns 

to an additional “two part-analysis...which requires it to establish” that (1) “the entity is not owned 

or controlled by a political party, political committee, or candidate” and (2) that “the press entity 

is acting in its ‘legitimate press function.’” Advisory Opinion 2010-08 (“Citizens United II”) at 4-

5. While ownership or control can be taken literally, Fed. Election Comm’n, Advisory Opinion 

2005-07 (“Mayberry”) at 39, determining whether a press entity is acting within its “legitimate 

press function” is a slightly broader query. Advisory Opinion 2011-11 (“Colbert”) at 7. The 

Commission asks two questions: “whether the press entity’s materials are available to the general 

public” and “whether the materials are comparable in form to those ordinarily issued by the press 

entity,” which appears to be just a restatement of the need for regularity. Id.; see Fed. Election 

Comm’n, Advisory Opinion 2004-07 (“MTV”) at 4 (noting that in 1994, the “Commission 

concluded that [certain] broadcasts were covered by the press exemption, but that the distribution 

of [some] fliers” by “a cable television provider” was not “because [the applicant] was ‘acting in 

a manner unrelated to its cablecasting function’ when it produced and distributed the fliers”) 

(citation omitted); MCFL, 479 U.S. at 250-251.

As a result, the test makes for a remarkably shallow safe harbor. The FEC has restricted 

the statutory exemption’s reach to established organizations in the business of regularly publishing 

9 “Because you are a candidate for Federal office and your opinion columns are distributed through 

publications that you co-own, those opinion columns are not exempt from the definitions of 

‘contribution’ or ‘expenditure’ under the press or media exemption.”

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and distributing news and even then, only provides immunity to activities performed consistent 

with that narrow mission. It is not at all clear, however, that this is a constitutionally correct or 

even permissible interpretation of the exemption. 

B. The FEC’s application of the press exemption is constitutionally problematic.

The FEC has interpreted the federal media exemption as “extend[ing] protection to an 

institution,” as if the media “business is...the only organized private business that is given explicit 

constitutional protection.” Potter Stewart, Or of the Press, 26 Hastings L.J. 631, 633 (Jan. 1975); 

Eugene Volokh, Freedom for the Press as an Industry, or for the Press as a Technology? From the 

Framing to Today, 160 U. Pa. L. Rev. 459, 537 (2012) (“[T]he FEC appears to be taking a pressas-industry-specially-protected view of the First Amendment”). This standard, which this Court 

appears to have adopted, Mem. Op. at 26, is in serious tension with the Supreme Court’s 

understanding of the Press Clause and the activities protected by the First Amendment. After all, 

“[t]he press in its historic connotation comprehends every sort of publication which affords a 

vehicle of information and opinion,” Lovell v. City of Griffin, 303 U.S. 444, 452 (1938), and “[i]t 

is passing strange to interpret the phrase ‘the freedom of speech, or of the press’ to mean, not 

everyone’s right to speak or publish, but rather everyone’s right to speak or the institutional press’s 

right to publish.” Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 390 n.6 (2010) (Scalia, 

J., concurring).

Indeed, “[t]he argument that the First Amendment...confine[s] freedom of the press to 

professional” or at least formalized “journalism,” Michael McConnell, Reconsidering Citizens 

United as a Press Clause Case, 123 Yale L.J. 412, 438 (Nov. 2013), “the idea that the institutional 

press has superior rights under the [Press] Clause, [is a] view that has never commanded a 

majority” of the Supreme Court, id. at 438, and one which has no historical pedigree. Near v. 

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Minn., 283 U.S. 697, 707 (1931) (defining the “the press” as an “essential personal liberty of the 

citizen”) (emphasis supplied); Aldrich v. Press Printing Co., 9 Minn. 133, 138 (Minn. 1864) (“The 

press does not possess any immunities, not shared by every individual”) (emphasis supplied). As 

former Judge Michael McConnell observed, a standard that seeks to offer First Amendment 

protections because of “[t]he regular or periodical status of publications...cannot serve as a 

limiting principle under the Press Clause. This would exclude not only the lonely pamphleteer so 

beloved by Supreme Court opinions, but also books, which the Court has squarely held are 

protected by the Press Clause. It would also exclude documentary films, tweets, YouTube clips, 

and many blogs. It would retroactively exclude Tom Paine, Publius, and the Federal Farmer.” 123 

Yale L.J. at 440. As Judge Sentelle has wryly observed, “[i]f the press-as-institution view prevails, 

is the printer of a first edition of a newspaper or periodical part of that institutional press or just an 

aspirant? If not a member, then how many issues does the printer have to issue before being 

admitted into the protected class?” David B. Sentelle, Freedom of the Press: A Liberty for All or 

a Privilege for a Few?, 2013-14 Cato Sup. Ct. Rev. 15, 26 (2013-2014). 

In fact, it is probable that the FEC has hitherto successfully fenced off the media 

exemption’s protections based on regularity and structure simply because it has not been squarely 

challenged on the subject. As Professor Volokh observed, after a thorough review of the case law

as of January 2012, he “could find no court decision that agreed with the FEC[’s],” 160 U. Pa. L. 

Rev. at 538, “view [of] the federal election law media exemption – which is limited to broadcasting 

and periodicals, and thus excludes books, occasional newsletters, and occasionally produced 

documentaries – as tracking a First Amendment mandate.” Id. at 538. The Supreme Court itself 

has cast doubt on the media exemption’s constitutionality, observing that the carve-out embedded 

in Congress’s 2002 campaign finance reforms “distinguish[es] between corporations which are 

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deemed to be exempt as media corporations and those which are not;” a provision with “no 

precedent supporting” it, which rests on a “constitutional privilege” for the “institutional press” 

that the Court has “consistently rejected.” Citizens United, 558 U.S. at 352 (citation and quotation 

marks omitted); First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 782 n.18 (1978) (“If we were to 

adopt [the] suggestion that communication by corporate members of the institutional press is 

entitled to greater constitutional protection than the same communication by appellants, the result 

would not be responsive to the informational purpose of the First Amendment”). 10 “This is not to 

say that [the law]...can never properly distinguish the news media from other speakers. But that 

distinction has no basis in the First Amendment and cannot immunize differential treatment from 

a First Amendment challenge.” Gessler, 773 F.3d at 212.

10 In Austin v. Michigan State Chamber of Commerce, 494 U.S. 652, 668 (1990), which was 

substantially undone by Citizens United, the Supreme Court determined that the 1974 media 

exemption did not violate the Fourteenth Amendment’s Equal Protection Clause. Id. But it did not 

conduct a First Amendment analysis, and even acknowledged that “the press’[s] unique societal 

role may not entitle [it] to greater protection under the Constitution.” Id. Likewise, 

The per curiam opinion of this Court in McConnell v. Federal Election Commission dismissed an 

overall attack on the 2002 campaign finance reform brought under the Press Clause because it 

considered the breadth of constitutional protection provided by the “Speech and Association [sic]

Clauses” to be comparable to those of the Press Clause, and that “there [was] no need for the Court 

to treat their grievances separately.” 251 F. Supp. 2d 176, 233-236 (D.D.C. 2003) (three-judge 

court); see also McConnell, 540 U.S. at 208, n.89. But it did not squarely deal with the discrete, 

particular question of whether, by sheltering the press as an industry, the FEC’s interpretation of 

its mandate under the press exemption was constitutional under the Press Clause.

Both cases antedate the Tenth Circuit’s reasoning regarding the Colorado media exemption (which 

closely mirrors the federal one), as well as the Supreme Court’s later pronouncement of hostility 

toward the media exemption in Citizens United v. Federal Election Commission. Gessler, 773 F.3d 

at 212 (noting that a limited discussion of the exemption at McConnell, 540 U.S. at 208 in defense 

of the corporate ban on electioneering communications had been “overruled by Citizens United on

that point”); see also United States v. Oakar, 111 F.3d 146, 153 (D.C. Cir. 1997) 

(“[C]arefully considered language of the Supreme Court, even if technically dictum, generally 

must be treated as authoritative”) (citation and quotation marks omitted).

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Of course, while immunizing the “media industry” as an industry is constitutionally 

troublesome, it does not follow that the Commission is powerless to protect “media activities”

under its current statutory mandate.11 As Judge McConnell determined, “history and precedent 

indicate” that “the Press Clause refers...to the right of any person to use the technology of the 

press to disseminate opinions,” and therefore “everyone has a constitutional right to publish their 

views about officials and candidates during the election season.” 123 Yale L.J. at 441.

In any case, the media exemption is not presently before this Court. But it might be at some 

future date. In the absence of full briefing on that issue, Amicus cautions the Court against broadly 

recognizing, in dicta or otherwise, an interpretation of the “media exemption” that is only “for the 

media” in order to dispose of any part of the case presently before it. Mem. Op. at 26.

CONCLUSION

Regardless of this Court’s disposition of this matter, it ought not rely on or address the 

FEC’s application of the media exemption, at least not without undertaking a thorough 

examination of the issue, including an order for additional briefing on the subject.

Respectfully submitted,

/s/ Zac Morgan

Zac Morgan (No. 1032211)

Institute for Free Speech

1150 Connecticut Avenue, N.W.

Suite 801

Washington, D.C. 20036

202.301.3300

zmorgan@ifs.org

Counsel for Amicus Curiae

Date: September 9, 2020

11 Although if that concept brings about a feeling of trepidation, Amicus submits that might say 

something about the comprehensive onerousness of our political speech rules.

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CERTIFICATE OF SERVICE

I hereby certify that on the 9th of September, 2020, I caused a copy of the foregoing to be 

filed via CM/ECF on all Parties that have entered an appearance in this Court. 

/s/ Zac Morgan

Zac Morgan

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