IOWA RIGHT TO LIFE COMMITTEE, INC. v. WILLIAMS 963

Cite as 187 F.3d 963 (8th Cir. 1999)

Nebraska. The basis of this claim was the

Statement made by Ron Fowler, the Product Line Manager, at a meeting of supervisors and engineers which announced that

Malone had been fired ‘‘for a form of sexual harassment.’’ The purpose of this meeting was to reiterate Eaton’s policy against

supervisor-subordinate relationships, warn

the other supervisors about the consequences of violating the policy, and underscore the risk of potential liability from a

sexual-harassment claim. This communication was between parties sharing a common interest in the subject matter and is

entitled to a qualified privilege under Nebraska law. Turner v. Welliver, 226 Neb.

275, 287, 411 N.W.2d 298, 307 (1987).

Therefore, in order for Malone to recover

he must prove that the communication was

made with malice. Id. Malice is defined as

‘‘hate, spite, or ill will’’ toward the person

about whom a statement has been published. Young v. First United Bank of Bellevue, 246 Neb. 43, 48, 516 N.W.2d 256, 259

(1994). There is no evidence that Fowler

acted with malice in announcing Malone’s

termination in the terms alleged. The fact

that rumors of Malone’s discharge may

have made it around the plant and into the

community does not subject Eaton to liability. The communication alleged in the

complaint is protected by privilege and is

not actionable.

IV.

We have fully considered Malone’s other

arguments and find them to be without

merit. The judgment is affirmed.

,

IOWA RIGHT TO LIFE COMMITTEE,

INC.; Iowa Right to Life State Political Action Committee, Appellees,

v.

Kay WILLIAMS, in her official capacity

as Executive Director of the Iowa

Ethics and Campaign Disclosure

Board; Bernard McKinley; James Albert; Gwen Brooks; Marie Thayer;

Michael Forrest, in their official capacities as members of the Iowa Ethics and Campaign Disclosure Board;

Thomas Miller, in his official capacity

as Iowa Attorney General; John Sarcone, in his official capacity as County Attorney for Polk County, Iowa,

and as a representative of the class of

County Attorneys in the State of

Iowa, Appellants.

No. 98–4078.

United States Court of Appeals,

Eighth Circuit.

Submitted June 17, 1999.

Decided Aug. 13, 1999.

Organizations which had as one of

their purposes political speech sought preliminary injunction against enforcement of

provision of Iowa Campaign DisclosureIncome Tax Check-off Act which established reporting requirements for independent political expenditures, and related

Iowa administrative rule which defined express advocacy. The United States District

Court for the Southern District of Iowa,

Ronald E. Longstaff, Chief District Judge,

granted injunctive relief. State appealed,

and the Court of Appeals, Beam, Circuit

Judge, held that grant of preliminary injunction was not an abuse of discretion, as

organizations had likelihood of success on

merits of their First Amendment challenges to statute and rule.

Affirmed.
964 187 FEDERAL REPORTER, 3d SERIES

1. Federal Courts O815

Court of Appeals reviews a grant of a

preliminary injunction for abuse of discretion, and considers four factors: (1) probability of success on the merits, (2) threat of

irreparable harm, (3) the balance between

this harm and potential harm to others if

relief is granted, and (4) the public interest.

2. Civil Rights O268

Grant of preliminary injunction enjoining enforcement of provision of Iowa

Campaign Disclosure-Income Tax Checkoff Act establishing reporting requirements for independent campaign expenditures, under which person or committee

making such an expenditure was required

to notify candidate, and candidate would

be presumed to ‘‘approve’’ expenditure if

he or she did not disapprove it within 72

hours, was not an abuse of discretion; organizations challenging provision were

likely to succeed on merits of First

Amendment claim, since provision was

content-based restriction on speech and no

showing was made that ordinance was narrowly drawn, and remaining factors favored grant of injunction. U.S.C.A. Const.

Amend. 1; I.C.A. § 56.13, subd. 1.

3. Constitutional Law O90.1(1.2)

Federal Constitution protects independent expression of views through independent political expenditures as core

First Amendment activity. U.S.C.A.

Const.Amend. 1.

4. Constitutional Law O82(8)

Restrictions on independent political

spending require more compelling justification under First Amendment than restrictions on ordinary contributions.

U.S.C.A. Const.Amend. 1.

5. Constitutional Law O90(3)

Governmental regulations that suppress, disadvantage, or impose differential

burdens upon speech because of its content are subjected to the most exacting

scrutiny under First Amendment, and

thereby must be narrowly tailored to a

compelling state interest. U.S.C.A. Const.

Amend. 1.

6. Constitutional Law O90.1(1.2)

Provision of Iowa Campaign Disclosure-Income Tax Check-off Act establishing reporting requirements for independent campaign expenditures, under which

person or committee making such an expenditure was required to notify candidate,

and candidate would be presumed to ‘‘approve’’ expenditure if he or she did not

disapprove it within 72 hours, was a content-based restriction, which could withstand First Amendment scrutiny only if

narrowly drawn to serve a compelling

state interest. U.S.C.A. Const.Amend. 1.

7. Civil Rights O268

Grant of preliminary injunction enjoining enforcement of Iowa administrative

rule defining ‘‘express advocacy’’ subject to

regulation to include communication that,

when taken as a whole, could only be

interpreted as containing advocacy of election or defeat of one or more clearly identified candidates, was not an abuse of discretion; parties challenging rule were likely to

succeed on merits of First Amendment

claim, since definition did not require express words of advocacy, but focused on

what reasonable people of reasonable

minds would understand. U.S.C.A. Const.

Amend. 1; Iowa Admin. Code r.351–

4.100(1)(b).

8. Constitutional Law O90.1(1)

Discussion of public issues and debate

on the qualifications of candidates are integral to Federal Constitution, and First

Amendment affords the broadest protection to such political expression in order to

assure the unfettered interchange of ideas.

U.S.C.A. Const.Amend. 1.

9. Constitutional Law O90.1(1)

While broad protection afforded to political expression by First Amendment

does not mean that government cannot

regulate at all or subject such speech to

some amount of scrutiny, it does mean that
IOWA RIGHT TO LIFE COMMITTEE, INC. v. WILLIAMS 965

Cite as 187 F.3d 963 (8th Cir. 1999)

in area of political speech precision of regulation must be the touchstone. U.S.C.A.

Const.Amend. 1.

10. Constitutional Law O90.1(1)

Ambiguity and uncertainty in a governmental regulation of political speech

may compel a speaker to hedge and trim,

and thus can invalidate the regulation under First Amendment. U.S.C.A. Const.

Amend. 1.

11. Constitutional Law O90.1(1.2)

 Elections O317.2

Iowa administrative rule which defined express advocacy regulated political

speech, and therefore was subject to precision of regulation on pain of invalidation

under First Amendment. U.S.C.A. Const.

Amend. 1; Iowa Admin. Code r.351–

4.100(1)(b).

12. Constitutional Law O90.1(1.2)

To constitute ‘‘express advocacy’’ for

First Amendment purposes, communication must contain express language of advocacy with an exhortation to elect or defeat a candidate. U.S.C.A. Const.Amend.

1.

William C. Smithson, Des Moines, IA,

argued, for Appellants Thomas Miller, Michael Forrest, Marie Thayer, Gwen

Brooks, James Albert, Bernard McKinley

and Kay Williams.

Julie F. Pottorff, Des Moines, IA, argued, for Appellants Thomas Miller and

Kay Williams.

James Bopp, Terre Haute, IN, argued

(James R. Mason, III and John R. Hearn,

on the brief), for Appellee.

Before BEAM and MORRIS

SHEPPARD ARNOLD, Circuit Judges,

and KYLE,1

 District Judge.

BEAM, Circuit Judge.

The State of Iowa (Iowa, or the State)

appeals from the grant of a preliminary

injunction enjoining the enforcement of

one provision of Iowa’s Campaign Disclosure–Income Tax Check-off Act, Iowa

Code § 56.13(1), which establishes reporting requirements for independent expenditures, and a related provision of the Iowa

Administrative Code, Iowa Admin. Code

r. 351–4.100(1)(b), that defines express advocacy. Iowa Right to Life State Political

Action Committee (IRLSPAC) and Iowa

Right to Life Committee, Inc. (IRLC),

maintain that the provisions are unconstitutional and therefore the grant of preliminary injunctive relief was appropriate.

We affirm.

I. BACKGROUND

IRLSPAC and IRLC are affiliated organizations that have as one of their purposes, political speech. They attempt to

highlight, support, and inform the public

about issues relevant to their interests,

and the positions and records of candidates on those issues. IRLSPAC makes

direct contributions to candidates and independently devotes money and resources

to advocate the election or defeat of particular candidates. In the 1996 Iowa elections, IRLSPAC produced several mailings that encouraged people to vote for

certain candidates because they supported

issues of concern to IRLSPAC. The mailings contained the admonition to ‘‘vote for’’

a specific candidate. The mailings were

reported to the Iowa Ethics and Campaign

Disclosure Board (the Board), and otherwise complied with campaign and election

laws.

IRLC, on the other hand, serves a more

purely informative role. One of IRLC’s

primary expenditures of money is for the

publication of ‘‘voter guides’’ that articulate the voting records and public policy

positions of various candidates. IRLC

1. The Honorable Richard H. Kyle, United

States District Judge for the District of Minnesota, sitting by designation.
966 187 FEDERAL REPORTER, 3d SERIES

proposes to continue publishing voter

guides that will contain no language such

as ‘‘vote for,’’ ‘‘elect,’’ or any other express

words of advocacy for the election or defeat of a clearly identifiable candidate.

In July 1998, IRLSPAC and IRLC together challenged four Iowa campaign and

election statutes and several related Iowa

administrative regulations, under 42

U.S.C. § 1983, as violative of their rights

protected by the First and Fourteenth

Amendments. They sought a preliminary

injunction, which the district court 2

 granted. The State appeals the district court’s

decision only as to Iowa Code § 56.13(1),

and Iowa Administrative Code r. 351–

4.100(1)(b).

The district court found that IRLSPAC’s constitutional challenge to section

56.13(1), regulating independent expenditures that expressly advocate the election

or defeat of a candidate, is likely to be

successful on the merits because it is not

narrowly drawn to serve a compelling

state interest. As to rule 351–4.100(1)(b),

which defines express advocacy, the district court concluded that IRLC would

likely succeed on the merits in its action to

have the regulation declared unconstitutionally overbroad because it chills legitimate First Amendment rights to public

discussion of issues.

II. DISCUSSION

[1] We review a grant of a preliminary

injunction for abuse of discretion, see National Credit Union Admin. Bd. v. Johnson, 133 F.3d 1097, 1101 (8th Cir.1998),

and consider four factors: (1) probability

of success on the merits; (2) threat of

irreparable harm; (3) the balance between

this harm and potential harm to others if

relief is granted; and (4) the public interest. See Kirkeby v. Furness, 52 F.3d 772,

774 (8th Cir.1995); Dataphase Sys., Inc. v.

C L Sys., Inc., 640 F.2d 109, 113 (8th

Cir.1981) (en banc). We consider first

whether the district court abused its discretion by granting a preliminary injunction for the statutory provision, section

56.13(1), regulating independent expenditures.

[2] As indicated, IRLSPAC makes independent expenditures, such as direct

mailings, that expressly advocate the election or defeat of candidates. Section

56.13(1) of the Iowa Code regulates those

independent expenditures. It provides

that when an organization makes an independent expenditure expressly advocating

the election or defeat of a candidate, the

organization must notify the Board and the

candidate within twenty-four hours. This

notification gives the candidate knowledge

of the independent expenditure. The section then requires the candidate to essentially make one of two choices: (1) file a

statement of disavowal including an indication of the ‘‘corrective action’’ taken within

seventy-two hours, or (2) do nothing and

have the independent expenditure presumed to be ‘‘approved’’ by the candidate

and deemed an expenditure by the candidate.3

2. The Honorable Ronald E. Longstaff, United

States District Judge for the Southern District

of Iowa, presiding.

3. Section 56.13 provides:

Independent Expenditures

1. Action involving a contribution or expenditure which must be reported under

this chapter and which is taken by any

person, candidate’s committee or political

committee on behalf of a candidate, if

known and approved by the candidate,

shall be deemed action by the candidate

and reported by the candidate’s committee.

It shall be presumed that a candidate approves the action if the candidate had

knowledge of it and failed to file a statement of disavowal with the commissioner

or board and take corrective action within

seventy-two hours of the action. A person,

candidate’s committee or political committee taking such action independently of that

candidate’s committee shall notify that candidate’s committee in writing within twenty-four hours of taking the action. The

notification shall provide that candidate’s

committee with the cost of the promotion at

fair market value. A copy of the notification shall be sent to the board.
IOWA RIGHT TO LIFE COMMITTEE, INC. v. WILLIAMS 967

Cite as 187 F.3d 963 (8th Cir. 1999)

[3–5] The Constitution protects independent expression of views through independent expenditures, as ‘‘core’’ First

Amendment activity. See Colorado Republican Fed. Campaign Comm. v. Federal Election Comm’n, 518 U.S. 604, 616, 116

S.Ct. 2309, 135 L.Ed.2d 795 (1996). Thus,

restrictions on independent spending requires more compelling justification than

restrictions on ordinary contributions. See

Federal Election Comm’n v. Massachusetts Citizens for Life, Inc., 479 U.S. 238,

259–60, 107 S.Ct. 616, 93 L.Ed.2d 539

(1986). Indeed, governmental regulations

that ‘‘ ‘suppress, disadvantage, or impose

differential burdens upon speech because

of its content’ ’’ are subjected to the

‘‘ ‘most exacting scrutiny’ ’’ and thereby

must be narrowly tailored to a compelling

state interest. Day v. Holahan, 34 F.3d

1356, 1361 (8th Cir.1994) (quoting Turner

Broad. Sys., Inc. v. Federal Communications Comm’n, 512 U.S. 622, 642, 114 S.Ct.

2445, 129 L.Ed.2d 497 (1994)).

In Day, we found that a content-based

restriction exists when a regulation ‘‘singles out particular political speech—that

which advocates the defeat of a candidate

and/or supports the election of her opponents—for negative treatment.’’ Id. at

1360. Section 56.13(1) also singles out this

particular kind of speech—that which expressly advocates the election or defeat of

a candidate—for negative treatment. The

State not only disputes that the speech is

subjected to negative treatment, but also

justifies the regulation as narrowly tailored to a compelling state interest.

IRLSPAC argues that the negative treatment arises from what section 56.13(1) requires of a candidate. According to the

IRLSPAC, the candidate must either disparage the independent expenditure

through a statement of disavowal and corrective action, or have the independent

expenditure presumed to be their own—

i.e. coordinated.

The State contends that a statement of

disavowal and of the corrective action taken is not a disparagement or a statement

of disagreement with the independent expenditure, but merely an expression that

there was no prior knowledge of the independent expenditure. We cannot agree

with the State’s spin on this requirement,

particularly in the framework of our ‘‘cherished right to political speech.’’ Federal

Election Comm’n v. Christian Action Network, Inc., 110 F.3d 1049, 1051 (4th Cir.

1997). Disavowal is ‘‘a disowning; repudiation; denial.’’ Random House Webster’s

Unabridged Dictionary 561 (2d ed.1997).

To the ordinary reader, the implications of

requiring a candidate to file a statement of

disavowal along with a statement of corrective action taken against an independent expenditure, has a strong negative

connotation. Cf. Day, 34 F.3d at 1362

(‘‘[T]he statute’s negative impact on political speech must be a violation of the First

Amendment rights of those who wish to

make the independent expenditures at issue.’’).

Conversely, if a candidate fails to file a

statement of disavowal and corrective action, then the independent expenditure is

presumed approved and deemed an expenditure by the candidate. The negative impact IRLSPAC imports to this is that an

entirely independent expenditure is automatically presumed to be a coordinated

expenditure, eliminating the independent

nature of the speech and thus diminishing

its value. We agree. The Supreme Court

in Colorado Republican, considered

‘‘whether the Government may conclusively deem independent party expenditures to

be coordinated,’’ Colorado Republican, 518

Any person who makes expenditures or

incurs indebtedness, other than incidental

expenses incurred in performing volunteer

work, in support or opposition of a candidate for public office shall notify the appropriate committee and provide necessary information for disclosure reports.

Iowa Code § 56.13(1).

The State argues various narrow interpretations of the provision. However, we have

found no narrowing interpretation by any

Iowa court, see Kirkeby, 52 F.3d at 775, and

therefore give a plain meaning to the provision.
968 187 FEDERAL REPORTER, 3d SERIES

U.S. at 625, 116 S.Ct. 2309, and concluded

that simply calling an independent expenditure a ‘‘coordinated expenditure,’’ or presuming such, cannot make it so. See id. at

621–22, 116 S.Ct. 2309.

[6] There is a fundamental constitutional difference between independent and

coordinated expenditures. The difference

is that independent expenditures, by their

nature, do not involve prearrangement or

coordination. And without the prearranged or coordinated nature of expenditures, the danger that the expenditure is

given as a quid pro quo for improper commitments is alleviated. See id. at 614–15,

116 S.Ct. 2309. Based upon what section

56.13(1) requires candidates to do, we

agree with the district court that it is a

content-based restriction that must be

‘‘narrowly drawn to serve a compelling

state interest.’’ Day, 34 F.3d at 1361.

The State seeks to justify section

56.13(1) as serving three alleged compelling state interests. The State’s first attempt is to show that the provision is

narrowly tailored to deter actual corruption and avoid the appearance of corruption. In view of the provision’s treatment

of independent expenditures, we do not

think it is narrowly tailored to this asserted interest, at least absent convincing evidence or findings that the statute is necessary to combat a substantial danger of

corruption of the electoral system. See

Colorado Republican, 518 U.S. at 617–18,

116 S.Ct. 2309; cf. Russell v. Burris, 146

F.3d 563, 569 (8th Cir.1998) (requiring

credible evidence of actual undue influence

or corruption). The State neither asserts

such evidence nor points us to such a

finding.

The State advances two additional state

interests: providing information to the

electorate about candidate funding and

therefore a likely direction of future performance, and the gathering of data necessary to detect violations of campaign and

election laws. We are not persuaded,

since a portion of the statute, not challenged by the IRLSPAC, already requires

that those making independent expenditures send notice to the Board, thus serving the data gathering and electoral information interests. Therefore, we agree

with the district court that IRLSPAC’s

challenge to section 56.13(1) is likely to

succeed on the merits. The State has not

carried its burden of showing that the

regulation is narrowly tailored to a compelling state interest.

[7] The State also appeals the preliminary injunction against enforcement of administrative code rule 351–4.100(1)(b), containing a definition of express advocacy.

The definition is relevant to IRLC’s interests because express advocacy is subject

to tighter regulation than pure issue advocacy. Failure to comply with the regulations established for express advocacy can

subject the speaker to more onerous consequences. As indicated, IRLC plans to

expend money and resources to produce

voter guides that contain no express words

of advocacy for the election or defeat of a

clearly identifiable candidate. IRLC argues that rule 351–4.100(1)(b) acts to chill

its legitimate First Amendment rights to

public discussion of issues because the

State’s definition of express advocacy is

unconstitutionally overbroad and sweeps

in a substantial amount of protected

speech, creating uncertainty.

[8–10] ‘‘Discussion of public issues and

debate on the qualifications of candidates

are integral to TTT our Constitution. The

First Amendment affords the broadest

protection to such political expression in

order ‘to assure (the) unfettered interchange of ideas TTTT’ ’’ Buckley v. Valeo,

424 U.S. 1, 14, 96 S.Ct. 612, 46 L.Ed.2d 659

(1976) (quoting Roth v. United States, 354

U.S. 476, 484, 77 S.Ct. 1304, 1 L.Ed.2d

1498 (1957)). This does not mean that

government cannot regulate at all or subject such speech to some amount of scrutiny. It does mean, however, that in this

area ‘‘ ‘so closely touching our most precious freedoms,’ ’’ precision of regulation

must be the touchstone. Id. at 41, 96 S.Ct.
IOWA RIGHT TO LIFE COMMITTEE, INC. v. WILLIAMS 969

Cite as 187 F.3d 963 (8th Cir. 1999)

612 (quoting NAACP v. Button, 371 U.S.

415, 438, 83 S.Ct. 328, 9 L.Ed.2d 405

(1963)). Ambiguity and uncertainty in a

regulation compel a speaker ‘‘ ‘to hedge

and trim,’ ’’ and can invalidate the regulation. Id. at 43, 96 S.Ct. 612 (quoting

Thomas v. Collins, 323 U.S. 516, 535, 65

S.Ct. 315, 89 L.Ed. 430 (1945)).

[11] Administrative code rule 351–

4.100(1) regulates political speech and

therefore is subject to precision of regulation on pain of invalidation under the First

Amendment. Subsection (a) provides a

definition of express advocacy which tracks

the language approved by Buckley, 424

U.S. at 44 & n. 52, 96 S.Ct. 612; see Iowa

Admin. Code r. 351–4.100(1)(a) (finding

express advocacy includes statements such

as ‘‘vote for the Governor,’’ ‘‘re-elect your

State Senator,’’ etc.). IRLC does not challenge this definition, but instead challenges

subsection (b), which provides that express

advocacy means communication that:

b. When taken as a whole and with

limited reference to external events such

as the proximity to the election, could

only be interpreted by a reasonable person as containing advocacy of the election or defeat of one or more clearly

identified candidate(s) TTT because:

(1) The electoral portion of the communication is unmistakable, unambiguous,

and suggestive of only one meaning;

and

(2) Reasonable minds could not differ as

to whether it encourages action to elect

or defeat one or more clearly identified

candidate(s) TTT or encourages some

other kind of action.

Iowa Admin. Code r. 351–4.100(1)(b).

To avoid uncertainty, and therefore invalidation of a regulation of political

speech, the Supreme Court in Buckley,

established a bright-line test. See Buckley, 424 U.S. at 43–44, 96 S.Ct. 612; see

also Christian Action Network, 110 F.3d

at 1051. 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.

See Buckley, 424 U.S. at 43–44, 96 S.Ct.

612.

In contrast, the focus of the challenged

definition is on what reasonable people or

reasonable minds would understand by the

communication. The definition does not

require express words of advocacy. IRLC

argues that under the challenged definition, an organization like IRLC could avoid

all express words of advocacy, such as in

informational voter guides, and still be uncertain as to whether the communication

could be viewed as express advocacy under

the regulation. There is no way for IRLC

to know ahead of time whether its speech

does or does not meet the definition and

therefore subjects them to government reporting and disclosure requirements. The

possible intent and effect attributed to the

speech creates uncertainty.

Questions of intent and effect, however,

are to be excluded from the analysis, since

a speaker, in such circumstances, could not

safely assume how anything he might say

would be understood by others. See id. at

43, 96 S.Ct. 612. A speaker should not be

put ‘‘ ‘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.’ ’’ Id.

(quoting Thomas, 323 U.S. at 535, 65 S.Ct.

315). When a definition depends on the

meaning others attribute to the speech,

there is no security for free discussion

because the definition ‘‘ ‘blankets with uncertainty whatever may be said,’ ’’ requiring ‘‘ ‘the speaker to hedge and trim.’ ’’

Id.

[12] The Supreme Court has made

clear that a ‘‘finding of ‘express advocacy’

depend[s] upon the use of language such

as ‘vote for,’ ‘elect,’ ‘support,’ etc.’’ Massachusetts Citizens for Life, 479 U.S. at

249, 107 S.Ct. 616 (quoting Buckley, 424

U.S. at 44, n. 52, 96 S.Ct. 612). While

Buckley did not provide an exclusive list,

there is no doubt that the communication

must contain express language of advocacy

with an exhortation to elect or defeat a
970 187 FEDERAL REPORTER, 3d SERIES

candidate. See id.; see also Federal Election Comm’n v. Furgatch, 807 F.2d 857,

864 (9th Cir.1987) (‘‘[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.’’). Because we find that the State’s

definition of express advocacy creates uncertainty and potentially chills discussion

of public issues, there is a likelihood of

success on the merits.

The State is concerned 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. We understand the

State’s concern. However, absent the

bright-line limitation in Buckley, ‘‘the distinction between issue discussion (in the

context of electoral politics) and candidate

advocacy would be sufficiently indistinct

that the right of citizens to engage in the

vigorous discussion of issues of public interest without fear of official reprisal

would be intolerably chilled.’’ Christian

Action Network, 110 F.3d at 1051.

As to the remaining preliminary injunction factors, we view the balance clearly in

favor of issuing the injunction. ‘‘The loss

of First Amendment freedoms, for even

minimal periods of time, unquestionably

constitutes irreparable injury.’’ Elrod v.

Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49

L.Ed.2d 547 (1976). Furthermore, the potential harm to independent expression

and certainty in public discussion of issues

is great and the public interest favors protecting core First Amendment freedoms.

Therefore, the district court did not abuse

its discretion by granting a preliminary

injunction.

III. CONCLUSION

For the foregoing reasons we affirm the

district court’s grant of preliminary injunctive relief.

,

Steven L. JENISIO; Candace

Jenisio, Appellants,

v.

OZARK AIRLINES, INC. RETIREMENT PLAN FOR AGENT AND

CLERICAL EMPLOYEES; Retirement Plan for Machinists of Trans

World Airlines; Trans World Airlines,

Inc., a Delaware corporation, Appellees.

No. 98–3229.

United States Court of Appeals,

Eighth Circuit.

Submitted June 14, 1999.

Decided Aug. 13, 1999.

Former airline employee brought suit

under Employee Retirement Income Security Act of 1974 (ERISA), seeking benefits

under two pension plans. The United

States District Court for the District of

Minnesota, Richard H. Kyle, J., 1998 WL

465054, dismissed for lack of subject matter jurisdiction. Employee appealed. The

Court of Appeals, Magill, Circuit Judge,

held that: (1) first pension plan was incorporated by reference in collective bargaining agreement (CBA), and, thus, plan was

maintained pursuant to CBA, thereby subjecting disputes arising under pension plan

to Railway Labor Act’s (RLA) arbitration

provisions, and (2) dispute arising under

second plan was also subject to RLA’s

arbitration requirement, even though CBA

purported to exempt disputes related to

the plan from that requirement.

Affirmed.

1. Federal Civil Procedure O1832

District court may consider documents on motion to dismiss where plain-