No. 11-275 

================================================================ 

In The 

Supreme Court of the United States 

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BENJAMIN BLUMAN, ET AL., 

Appellants, 

v. 

FEDERAL ELECTION COMMISSION, 

Appellee. 

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On Appeal From The United States District 

Court For The District Of Columbia 

--------------------------------- ♦ --------------------------------- 

BRIEF OF AMICUS CURIAE INSTITUTE 

FOR JUSTICE IN SUPPORT OF 

APPELLANTS’ JURISDICTIONAL STATEMENT 

--------------------------------- ♦ --------------------------------- 

INSTITUTE FOR JUSTICE

WILLIAM H. MELLOR

STEVEN M. SIMPSON* 

PAUL M. SHERMAN

901 North Glebe Road 

Suite 900 

Arlington, VA 22203 

(703) 682-9320 

ssimpson@ij.org 

Counsel for Amicus Curiae 

*Counsel of Record 

================================================================ COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 

OR CALL COLLECT (402) 342-2831 
i 

TABLE OF CONTENTS 

Page 

TABLE OF AUTHORITIES ................................. ii 

INTEREST OF AMICUS CURIAE ...................... 1 

SUMMARY OF ARGUMENT .............................. 2 

ARGUMENT ........................................................ 4 

 I. THE GOVERNMENT FAILED TO DEMONSTRATE ANY HARM SUFFICIENT 

TO JUSTIFY § 441e’s BAN ON POLITICAL SPEECH ............................................ 5 

 II. SECTION 441e UNCONSTITUTIONALLY 

PREFERS SOME SPEAKERS OVER 

OTHERS .................................................... 10 

CONCLUSION ..................................................... 16 
ii 

TABLE OF AUTHORITIES 

Page 

CASES

Ariz. Free Enter. Club’s Freedom Club PAC v. 

Bennett, 131 S. Ct. 2806 (2011) ......................... 1, 2, 4 

Austin v. Mich. Chamber of Commerce, 494 

U.S. 652 (1990) ........................................................ 10 

Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729 

(2011) ................................................................. 11, 12 

Brown v. Hartlage, 456 U.S. 45 (1982) ........................ 6 

Buckley v. Valeo, 424 U.S. 1 (1976) ........................ 4, 10 

Burdick v. Takushi, 504 U.S. 428 (1992) ..................... 7 

Cal. Med. Ass’n v. FEC, 453 U.S. 182 (1981) ............. 10 

Church of Lukumi Babalu Aye v. City of Hialeah, 

508 U.S. 520 (1993) ................................................. 12 

Citizens United v. FEC, 130 S. Ct. 876 (2010) .... passim

City of Ladue v. Gilleo, 512 U.S. 43 (1994) ................ 11 

Davis v. FEC, 554 U.S. 724 (2008) ................... 2, 4, 6, 7 

Edenfield v. Fane, 507 U.S. 761 (1993) ........................ 9 

FEC v. Beaumont, 539 U.S. 146 (2003) ..................... 10 

FEC v. Colo. Republican Fed. Campaign Comm., 

533 U.S. 431 (2001) ................................................. 10 

FEC v. Wis. Right to Life, Inc., 551 U.S. 449 

(2007) ..................................................................... 1, 4 

First Nat’l Bank of Boston v. Bellotti, 435 U.S. 

765 (1978) .................................................... 2, 6, 8, 12 

McConnell v. FEC, 540 U.S. 93 (2003) ..................... 1, 9 
iii 

TABLE OF AUTHORITIES – Continued 

Page 

Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377 

(2000) ................................................................... 9, 10 

Randall v. Sorrell, 548 U.S. 230 (2007) ....................... 4 

Republican Nat’l Comm. v. FEC, 130 S. Ct. 

3543 (2010) ................................................................ 9 

Thornhill v. Alabama, 310 U.S. 88 (1940) ............... 5, 6 

Turner Broad. Sys. v. FCC, 512 U.S. 622 (1994) ......... 8 

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. I .......................................... passim

STATUTES

2 U.S.C. § 431(9)(B)(i) ................................................. 14 

2 U.S.C. § 434(f)(3)(B)(i) ............................................. 14 

2 U.S.C. § 437h ........................................................... 10 

2 U.S.C. § 441e .................................................... passim

OTHER PUBLICATIONS

Fed. Election Comm’n, MUR 5987 (Feb. 30, 

2009), available at http://eqs.nictusa.com/ 

eqsdocsMUR/29044230277.pdf ......................... 13, 14 

Oliver Burkeman, My Fellow Non-Americans

. . . , The Guardian (Oct. 12, 2004), available at 

http://www.guardian.co.uk/world/2004/oct/12/ 

uselections2004.usa11 ............................................ 13 
iv 

TABLE OF AUTHORITIES – Continued 

Page 

The Economist, From the Archive: U.S. Presidential Endorsements (Oct. 28, 2008), http:// 

www.economist.com/node/12499760 ....................... 13 

The Economist Group, Circulation/Traffic, http:// 

www.economistgroupmedia.com/planning-tools/ 

circulation/?circ_id=2&productid=1 (last visited Sept. 25, 2011) .................................................. 14 
1 

INTEREST OF AMICUS CURIAE1

 Founded in 1991, the Institute for Justice is a 

public-interest law firm committed to defending the 

essential foundations of a free society by securing 

greater protection for individual liberty and restoring 

appropriate constitutional limits on the power of 

government. It seeks a rule of law under which 

individuals can control their destinies as free and 

responsible members of society. Through its Center 

for Judicial Engagement, the Institute also works to 

educate the public about the importance of judicial 

review to the protection of individual liberty. As part 

of its mission to defend individual liberty, the Institute has long opposed restrictions on political speech 

in the form of campaign-finance regulations, both 

through amicus briefs in cases including McConnell v. 

FEC, 540 U.S. 93 (2003); FEC v. Wisconsin Right to 

Life, Inc., 551 U.S. 449 (2007); and Citizens United v. 

FEC, 130 S. Ct. 876 (2010); and as counsel for the 

petitioners in Arizona Free Enterprise Club’s Freedom 

Club PAC v. Bennett, 131 S. Ct. 2806 (2011). 

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1

 The parties were notified ten days prior to the due date of 

this brief of the intention to file. The parties have consented to 

the filing of this brief. 

 No counsel for a party authored this brief in whole or in 

part, and no counsel or party made a monetary contribution 

intended to fund the preparation or submission of this brief. No 

person other than amicus curiae, its members, or its counsel 

made a monetary contribution to its preparation or submission. 
2 

SUMMARY OF ARGUMENT 

 The law challenged in this case, 2 U.S.C. § 441e, 

bans political speech precisely because it does what 

speech is always intended to do: convince listeners to 

adopt a particular viewpoint or take particular actions. In the context of elections, the obvious purpose 

of speech is to convince voters to vote a certain way. 

The First Amendment, and indeed our system of 

government, is based on the premise that voters are 

not only free to consider this information and make 

up their own minds, but are fully capable of doing so 

for themselves without government intervention, no 

matter how well-meaning. See First Nat’l Bank of 

Boston v. Bellotti, 435 U.S. 765, 791 (1978) (“[T]he 

people in our democracy are entrusted with the 

responsibility for judging and evaluating the relative 

merits of conflicting arguments.”); id. at 791 n.31 

(“Government is forbidden to assume the task of 

ultimate judgment, lest the people lose their ability to 

govern themselves.”). Thus, this Court has on two 

recent occasions noted the danger of permitting 

government to regulate the funding of political speech 

for the purpose of influencing electoral outcomes. See 

Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 

131 S. Ct. 2806, 2826 (2011) (“[M]aking and implementing judgments about which strengths should be 

permitted to contribute to the outcome of an election 

[is] a dangerous enterprise and one that cannot 

justify burdening protected speech.” (internal citation 

and quotation marks omitted)); Davis v. FEC, 554 

U.S. 724, 742 (2008) (“[I]t is a dangerous business for 
3 

Congress to use the election laws to influence the 

voters’ choices.”). And this Court has held that government may not determine what voices Americans 

may hear during elections or who may attempt to 

convince them to vote one way or another. See Citizens United v. FEC, 130 S. Ct. 876, 908 (2010). 

 Although the panel below purported to apply 

these precedents, and to review § 441e with “strict 

scrutiny,” App. 8a-9a, there can be no doubt that it 

did not engage with the facts or the law as required 

under that most stringent standard of review. Rather, 

in conflict with decades of First Amendment caselaw, 

the panel improperly recognized a brand-new “compelling” government interest in preventing efforts to 

“influence” electoral outcomes, so long as that influence comes from individuals who were not born in 

this country. App. 13a. Compounding this error, the 

panel failed to address seriously § 441e’s extreme 

underinclusiveness. The result is that some foreign 

speakers may spend enormous sums for the purpose 

of influencing American politics while the modest 

efforts of individuals like Appellants are outlawed. 

 This Court should note probable jurisdiction to 

make clear that speaker-based burdens are presumptively unconstitutional, are subject to strict scrutiny, 

and are only permissible if the government can 

show that they address real harms backed up by 

actual evidence, not speculation. This Court should 

also make clear that a crucial component of strict 

scrutiny is examining speech-burdening laws for underinclusiveness, to ensure that the government’s 
4 

alleged interests are genuinely compelling and not 

pretextual. 

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ARGUMENT 

 This Court has done much in recent years to 

reaffirm the long-standing principle that, when it 

comes to laws restricting speech, “the tie goes to the 

speaker, not the censor.” FEC v. Wis. Right to Life, 

Inc., 551 U.S. 449, 474 (2007) (Roberts, C.J., plurality 

opinion). In case after case, this Court has held that 

the First Amendment ensures that Americans are 

free to hear all perspectives and viewpoints and to 

make up their own minds on important issues. See 

Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 

131 S. Ct. 2806 (2011); Citizens United v. FEC, 130 

S. Ct. 876 (2010); Davis v. FEC, 554 U.S. 724 (2008); 

Randall v. Sorrell, 548 U.S. 230 (2007). This principle 

has “its fullest and most urgent application precisely 

to the conduct of campaigns for political office.” 

Buckley v. Valeo, 424 U.S. 1, 15 (1976). 

 The logical consequence of this foundational 

principle is that government must meet a high standard to justify restrictions on speech. The legal expression of this principle is strict scrutiny, “which 

requires the Government to prove that [any such] 

restriction furthers a compelling interest and is 

narrowly tailored to achieve that interest.” See Citizens United, 130 S. Ct. at 898. As discussed below, the 

 
5 

panel failed to apply that standard in accordance 

with this Court’s precedents. Instead, it wrongly held 

that speech can be regulated merely based on its 

ability to persuade, and it sanctioned a ban on speech 

that cannot plausibly be considered narrowly tailored. 

I. THE GOVERNMENT FAILED TO DEMONSTRATE ANY HARM SUFFICIENT TO 

JUSTIFY § 441e’s BAN ON POLITICAL 

SPEECH. 

 Because of the inherent danger of permitting the 

government to regulate speech, this Court has long 

held that government must justify burdens on speech 

by showing that they address real harms. See, e.g., 

Thornhill v. Alabama, 310 U.S. 88, 104-05 (1940) 

(noting that “[a]bridgment of the liberty of [speech] 

can be justified only where [there is a] clear danger 

of substantive evils aris[ing] under circumstances 

affording no opportunity to test the merits of ideas by 

competition for acceptance in the market of public 

opinion.”). The panel below purported to find such 

harm in the supposed danger of “foreign influence” 

over American politics. App. 13a. 

 The panel’s ruling is unprecedented. This Court 

has never before recognized the prevention of “foreign influence” over American politics as a “compelling” justification for limiting political speech or 
6 

association.2 Instead, the Court has held, repeatedly 

and emphatically, that the persuasive effect of peaceful speech about issues of public concern is not a 

“harm” at all. See Brown v. Hartlage, 456 U.S. 45, 60 

(1982) (“The State’s fear that voters might make an 

ill-advised choice does not provide the State with a 

compelling justification for limiting speech.”); Bellotti, 

435 U.S. at 790 (“[C]orporate advertising may influence the outcome of the vote; this would be its purpose. But the fact that advocacy may persuade the 

electorate is hardly a reason to suppress it. . . .”); 

Thornhill, 310 U.S. at 104 (“The group in power at 

any moment may not impose penal sanctions on 

peaceful and truthful discussion of matters of public 

interest merely on a showing that others may thereby 

be persuaded to take action inconsistent with its 

interests.”); see also Citizens United, 130 S. Ct. at 910 

(“The fact that a corporation, or any other speaker, is 

willing to spend money to try to persuade voters 

presupposes that the people have the ultimate influence over elected officials.” (emphasis added)). The 

lesson of these cases is clear: The government cannot 

regulate political speech merely because it may 

persuade listeners to take political action. 

 The panel’s ruling sets a dangerous precedent not 

just for speakers, but for listeners and, in particular, 

2

 To date, the only interest that this Court has recognized 

as sufficiently compelling to justify limits on the financing of 

political speech is the prevention of quid pro quo corruption or 

its appearance. See Davis v. FEC, 554 U.S. 724, 741 (2008).
7 

voters. As this Court recently stated, “When Government seeks to use its full power, including the criminal law, to command where a person may get his or 

her information or what distrusted source he or she 

may not hear, it uses censorship to control thought. 

This is unlawful. The First Amendment confirms the 

freedom to think for ourselves.” Citizens United, 130 

S. Ct. at 908. 

 Although this Court has recognized that government may regulate the mechanics of elections – to 

prevent fraud and to maintain the integrity of elections – it has made clear that these interests do not 

extend to the conduct of campaigns. Compare, e.g., 

Burdick v. Takushi, 504 U.S. 428, 433 (1992) (“[T]o 

subject every voting regulation to strict scrutiny . . . 

would tie the hands of States seeking to assure that 

elections are operated equitably and efficiently.”) with 

Citizens United, 130 S. Ct. at 898, (“Laws that burden 

political speech are ‘subject to strict scrutiny’. . . .”). 

Indeed, this Court has held that when government 

attempts to control the process of political campaigns, 

it improperly arrogates to itself a role that the Constitution reserves to the people. See Davis v. FEC, 554 

U.S. 724, 753-54 (2008) (“The Constitution . . . confers 

upon voters, not Congress, the power to choose the 

Members of the House of Representatives, Art. I, § 2, 

and it is a dangerous business for Congress to use the 

election laws to influence the voters’ choices.”). 

 There is nothing about foreigners, as a class, that 

justifies departing from these well-established First 

Amendment principles. Foreigners, like corporations, 
8 

do not have monolithic views. Cf. Citizens United, 130 

S. Ct. at 912 (“Corporations, like individuals, do not 

have monolithic views.”). The facts of this case bear 

that out: Appellant Bluman supports Democratic 

candidates while Appellant Steiman supports Republicans. App. 7a. The mere fact that a speaker was 

born in another country no more renders his speech 

inherently harmful than would the fact that he and 

others choose to speak through a corporation. In both 

cases, Americans should be permitted to hear the 

views expressed. See Citizens United, 130 S. Ct. at 

899 (stating that “voters must be free to obtain information from diverse sources in order to determine 

how to cast their votes”). 

 As a result, the FEC in this case had an affirmative obligation to identify some other harm caused by 

speech like Appellants’. The FEC did not do so, but 

even if it had, strict scrutiny requires more than the 

mere articulation of a possible harm; it requires the 

government to support its claim with actual evidence. 

See Bellotti, 435 U.S. at 789-90 (invalidating under 

strict scrutiny a prohibition on corporate political 

speech where “there [had] been no showing that the 

relative voice of corporations has been overwhelming 

or even significant in influencing referenda in Massachusetts, or that there [had] been any threat to the 

confidence of the citizenry in government”); see also 

Turner Broad. Sys. v. FCC, 512 U.S. 622, 664 (1994) 

(plurality opinion) (“When the Government defends a 

regulation on speech as a means to redress past 

harms or prevent anticipated harms, it must do more 
9 

than simply ‘posit the existence of the disease sought 

to be cured.’ It must demonstrate that the recited 

harms are real, not merely conjectural, and that the 

regulation will in fact alleviate these harms in a 

direct and material way.” (internal citation omitted)). 

“[M]ere conjecture” is never enough to carry a First 

Amendment burden. Nixon v. Shrink Mo. Gov’t PAC, 

528 U.S. 377, 392 (2000); see also Edenfield v. Fane, 

507 U.S. 761, 770-71 (1993) (holding that “mere 

speculation or conjecture” is insufficient to carry a 

First Amendment burden even in the commercialspeech context). Moreover, as this Court made clear 

in Citizens United, the government cannot satisfy its 

evidentiary burden merely by claiming that political 

contributions or expenditures might result in access 

to or influence over elected officials. See 130 S. Ct. at 

910 (“Reliance on a ‘generic favoritism or influence 

theory . . . is at odds with standard First Amendment 

analyses because it is unbounded and susceptible to 

no limiting principle.’ ” (ellipsis in original)). 

 The FEC did not satisfy this evidentiary standard. Indeed, the panel never required it to do so, as it 

resolved this case on a Rule 12(b)(6) motion to dismiss. App. 24a. Thus, the panel concluded as a matter 

of law that § 441e was constitutional with or without 

evidence. That decision cannot be squared with this 

Court’s decisions, which have never upheld a campaign-finance law on a Rule 12(b)(6) motion to dismiss. See Republican Nat’l Comm. v. FEC, 130 S. Ct. 

3543 (2010) (summarily affirming summary judgment 

in favor of FEC); McConnell v. FEC, 540 U.S. 93 
10 

(2003) (arising out of three-judge panel’s merits 

ruling under 2 U.S.C. § 437h); FEC v. Beaumont, 539 

U.S. 146 (2003) (arising out of trial-court ruling on 

cross-motions for summary judgment); FEC v. Colo. 

Republican Fed. Campaign Comm., 533 U.S. 431 

(2001) (same); Nixon v. Shrink Mo. Gov’t PAC, 528 

U.S. 377 (2000) (same); Austin v. Mich. Chamber of 

Commerce, 494 U.S. 652 (1990) (arising out of trialcourt ruling in non-jury trial); Cal. Med. Ass’n v. FEC, 

453 U.S. 182 (1981) (arising out of en banc court’s 

merits ruling under 2 U.S.C. § 437h); Buckley v. 

Valeo, 424 U.S. 1 (1976) (same). 

 This Court should note probable jurisdiction and 

make clear that the government carries an affirmative evidentiary burden to demonstrate harm in every 

First Amendment case, that this harm cannot flow 

merely from the persuasiveness of the regulated 

speech, and that the government’s evidentiary burden 

cannot be met at the motion-to-dismiss stage. 

II. SECTION 441e UNCONSTITUTIONALLY 

PREFERS SOME SPEAKERS OVER OTHERS. 

 As this Court made clear in Citizens United, the 

First Amendment prohibits “restrictions distinguishing among different speakers, allowing speech by 

some but not others.” 130 S. Ct. at 898. Section 441e 

violates this rule, most obviously, by treating nonpermanent residents like Appellants differently from 

citizens and permanent residents. But § 441e also 
11 

violates this rule through its extraordinary underinclusiveness – silencing Appellants’ modest political 

expenditures while leaving a vast array of other 

foreign political expenditures wholly unregulated. See 

City of Ladue v. Gilleo, 512 U.S. 43, 51 (1994) (“[T]he 

notion that a regulation of speech may be impermissibly underinclusive is firmly grounded in basic First 

Amendment principles.”). 

 Reviewing statutes for underinclusiveness is a 

critical part of the “narrow tailoring” component of 

strict scrutiny. This is not because expansive regulations of speech are preferable to narrower regulations; instead, it is because the underinclusiveness of 

a law is itself evidence that the law serves no genuinely compelling interests or does not actually advance that interest. See Brown v. Entm’t Merchs. 

Ass’n, 131 S. Ct. 2729, 2740 (2011) (“Underinclusiveness raises serious doubts about whether the government is in fact pursuing the interest it invokes, 

rather than disfavoring [ ] particular speaker[s] or 

viewpoint[s].”). As this Court has noted, where First 

Amendment rights are at stake, underinclusiveness 

is fatal: 

Where government restricts only conduct 

protected by the First Amendment and fails 

to enact feasible measures to restrict other 

conduct producing substantial harm or alleged harm of the same sort, the interest 

given in justification of the restriction is not 

compelling. It is established in our strict 

scrutiny jurisprudence that “a law cannot be 
12 

regarded as protecting an interest ‘of the 

highest order’ . . . when it leaves appreciable 

damage to that supposedly vital interest 

unprohibited.” 

Church of Lukumi Babalu Aye v. City of Hialeah, 508 

U.S. 520, 546-47 (1993) (ellipsis in original). Legislating in an ad hoc manner “is not how one addresses a 

serious social problem.” Entm’t Merchs. Ass’n, 131 

S. Ct. at 2740. 

 The panel performed only the most cursory 

examination of § 441e’s underinclusiveness before 

affirming the government’s alleged interest in preventing foreign influence over American politics. This 

was inconsistent with strict scrutiny. Although the 

panel considered two types of underinclusiveness – 

the law’s inapplicability to permanent residents or to 

ballot-issue contributions and expenditures, App. 18a21a – the panel failed to acknowledge numerous other 

ways in which the law is underinclusive. To name just 

a few examples: 

• Under the Foreign Agents Registration 

Act, 22 U.S.C. §§ 611-621, foreigners – 

and even foreign governments – are 

permitted to spend unlimited amounts of 

money directly lobbying elected officials;3

3 Cf. Bellotti, 435 U.S. at 791 n.31 (“The State’s paternalism 

evidenced by this statute [prohibiting corporate political speech 

regarding ballot issues] is illustrated by the fact that Massachusetts does not prohibit lobbying by corporations, which are free 

to exert as much influence on the people’s representatives as 

(Continued on following page) 
13 

• Foreigners, even those living abroad, are 

permitted to make unlimited “in-kind” 

contributions of volunteer services to political candidates, even if the value of 

those services is significantly greater 

than the legal limit for monetary contributions;4

 and 

• Foreign-owned magazines and newspapers – like the British-owned weekly 

magazine, The Economist – routinely 

advocate the defeat or election of American political candidates through editorial endorsements.5

 

 The panel’s ruling leads to particularly absurd 

results in light of these last two examples of underinclusiveness. For example, in 2009 the FEC concluded that musician Elton John did not violate 

their resources and inclinations permit. Presumably the legislature thought its members competent to resist the pressures and 

blandishments of lobbying, but had markedly less confidence in 

the electorate.”). 

4

See Fed. Election Comm’n, MUR 5987 (Feb. 30, 2009), 

available at http://eqs.nictusa.com/eqsdocsMUR/29044230277.pdf. 

5

See The Economist, From the Archive: U.S. Presidential 

Endorsements (Oct. 28, 2008), http://www.economist.com/node/ 

12499760 (last visited Sep. 30, 2011); see also Oliver Burkeman, 

My Fellow Non-Americans . . . , The Guardian (Oct. 12, 2004), 

available at http://www.guardian.co.uk/world/2004/oct/13/uselections 

2004.usa11 (urging British citizens to make financial contributions to “officially non-partisan groups whose activities, none the 

less, have the practical effect of helping one candidate over the 

other,” in order to promote Senator John Kerry’s presidential 

campaign). 
14 

§ 441e when he volunteered his services as a performer at a fundraiser for then-Senator Hillary 

Clinton’s presidential campaign. The performance 

raised more than $2.5 million for Clinton’s campaign. 

See Fed. Election Comm’n, MUR 5987, supra n.4, at 

1. Thus, under the panel’s ruling, celebrities like 

Elton John may contribute services that are worth 

millions to candidates, while the Appellants may not 

contribute even a few hundred dollars or simply pass 

out leaflets in the park. 

 Equally inexplicable under the panel’s theory of 

the case is the law’s exclusion of foreign media publications. See 2 U.S.C. §§ 431(9)(B)(i), 434(f)(3)(B)(i). 

This Court has “consistently rejected the proposition 

that the institutional press has any constitutional 

privilege beyond that of other speakers.” Citizens 

United, 130 S. Ct. at 905 (internal citations omitted). 

Yet while Appellant Bluman is prohibited from distributing handbills in Central Park advocating the 

reelection of President Obama, The Economist – 

which has a U.S. circulation of over 760,0006

 – has 

endorsed American presidential candidates since 

1980. Surely if the danger posited by the FEC of 

“foreign influence” over American politics were genuine, the threat from widely circulated publications 

like The Economist would dwarf that of lone pamphleteers like Appellant Bluman. That the law treats 

6

See The Economist Group, Circulation/Traffic, http://www. 

economistgroupmedia.com/planning-tools/circulation/?circ_id=2& 

productid=1 (last visited Sept. 30, 2011). 
15 

these two speakers differently is – as this Court has 

recognized in a similar context – “all but an admission of the invalidity” of the FEC’s anti-foreigninfluence rationale. See Citizens United, 130 S. Ct. at 

906, (“The law’s exception for media corporations 

is, on its own terms, all but an admission of the invalidity of the antidistortion rationale.”). 

 None of this, of course, is to suggest that the 

government should silence Elton John or the owners 

of The Economist. But the fact that their activities 

are permitted fatally undermines the government’s 

allegedly compelling interest in preventing “foreign 

influence” over American politics. Under strict scrutiny, the government can offer evidence of harm posed 

by foreigners speaking during American elections. 

But short of that, the government may not be given 

the benefit of the doubt, especially where, as here, 

foreigners have been speaking in this country, and 

thus exerting “influence” over our elections – sometimes even with the express approval of the FEC – for 

years. Cf. Citizens United, 130 S. Ct. at 896 (observing that the FEC, whose “business is to censor,” 

exercises power “analogous to licensing laws implemented in 16th- and 17th-century England, laws and 

governmental practices of the sort that the First 

Amendment was drawn to prohibit”). Accordingly, 

this Court should note probable jurisdiction so that it 

can make clear that such underinclusive speakerbased restrictions are inconsistent with the First 

Amendment. 

--------------------------------- ♦ ---------------------------------
16 

CONCLUSION 

 For the foregoing reasons and for the reasons 

expressed in Appellants’ jurisdictional statement, 

amicus curiae the Institute for Justice respectfully 

requests that this Court note probable jurisdiction 

and set this case for oral argument. 

Respectfully submitted, 

INSTITUTE FOR JUSTICE

WILLIAM H. MELLOR

STEVEN M. SIMPSON* 

PAUL M. SHERMAN

901 North Glebe Road 

Suite 900 

Arlington, VA 22203 

(703) 682-9320 

ssimpson@ij.org 

Counsel for Amicus Curiae

*Counsel of Record