No. 08-205

444444444444444444444444444444444444444444

IN THE

Supreme Court of the United States ____________________

CITIZENS UNITED,

Appellant,

v.

FEDERAL ELECTION COMMISSION,

Appellee.

____________________

On Appeal

from the United States District Court

for the District of Columbia

____________________

BRIEF AMICUS CURIAE OF THE FREE

SPEECH DEFENSE AND EDUCATION FUND,

INC., FREE SPEECH COALITION, INC., ET AL.

IN SUPPORT OF APPELLANT ON

SUPPLEMENTAL QUESTION

____________________

MARK WEINBERG WILLIAM J. OLSON*

WEINBERG & JACOBS HERBERT W. TITUS 

11300 Rockville Pike JOHN S. MILES

Suite 1200 JEREMIAH L. MORGAN

Rockville, MD 20852 WILLIAM J. OLSON, P.C.

(301) 468-5500 370 Maple Avenue West

Suite 4

Vienna, VA 22180-5615

*Counsel of Record (703) 356-5070

July 31, 2009 Attorneys for Amici Curiae

(All amici curiae listed on inside front cover)

444444444444444444444444444444444444444444
List of amici curiae:

The Abraham Lincoln Foundation for Public Policy

Research, Inc., 

American Values, 

Americans for the Preservation of Liberty, 

Base Connect, Inc., 

Michael Cloud,

Concerned Women for America,

Conservative Legal Defense and Education Fund, 

Constitution Party,

Downsize DC Foundation, 

DownsizeDC.org, Inc., 

Eberle Communications Group, Inc.,

English First, 

English First Foundation, 

Free Speech Coalition, Inc., 

The Free Speech Defense and Education Fund, Inc., 

Gun Owners Foundation,

Gun Owners of America, Inc., 

Carla Howell,

Institute on the Constitution, 

The Lincoln Institute for Research and Education,

The National Center for Public Policy Research, 

The National Right to Work Committee, 

National Taxpayers Union, 

The Richard Norman Company,

The Senior Citizens League,

U.S. Border Control,

U.S. Border Control Foundation, and

The United States Constitutional Rights Legal

Defense Fund, Inc.
TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . iii

INTEREST OF AMICI CURIAE ................... 1

SUMMARY OF ARGUMENT ..................... 3

ARGUMENT

I. CITIZENS UNITED’S FIRST AMENDMENT

CHALLENGE SHOULD BE SUSTAINED, AND

AUSTIN AND MCCONNELL, AS APPLIED TO

BCRA SECTION 203, SHOULD BE

OVERRULED

A. Austin and McConnell Denigrate the

Freedom of the Press . . . . . . . . . . . . . . . . . . 4

B. BCRA Section 203 Implicates the Freedom

of the Press . . . . . . . . . . . . . . . . . . . . . . . . . . 6

II. THE FREEDOM OF THE PRESS IS NOT A

SPECIAL PRIVILEGE OF THE INSTITUTIONAL

PRESS ............................... 8

III. BCRA Section 203 Violates Citizens

United’s Freedom of the Press

A. BCRA Section 203 Establishes an

Unconstitutional Licensing System . . . . . . 13

B. BCRA Section 203 Operates as an

Unconstitutional “Previous Restraint” . . . 14
ii

C. BCRA Section 203 Unconstitutionally

Intrudes into the Function of Editors . . . . 15

D. BCRA Section 203 Unconstitutionally

Imposes Economic Penalties and Burdens

on Issue Advertising . . . . . . . . . . . . . . . . . . 17

E. BCRA Section 203 Violates the Press

Principle of Anonymity . . . . . . . . . . . . . . . . 19

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
iii

TABLE OF AUTHORITIES

Page

U.S. Constitution

Amendment I . . . . . . . . . . . . . . . . . . . . . . . . 4, passim

STATUTES

2 U.S.C. § 431(9)(B)(i) ....................... 8

2 U.S.C. § 434(f)(1) . . . . . . . . . . . . . . . . . . . . . . . . 13

2 U.S.C. § 434(f)(3)(A)(i) ..................... 5

2 U.S.C. § 434(f)(3)(B)(i) . . . . . . . . . . . . . . . . . . . 8, 9

2 U.S.C. § 437g . . . . . . . . . . . . . . . . . . . . . . . . 14, 15

Bipartisan Campaign Reform Act,

section 203 . . . . . . . . . . . . . . . . . . . . . . . 4, passim

REGULATIONS

11 C.F.R. § 104.20 . . . . . . . . . . . . . . . . . . . . . . 13, 14

11 C.F.R. §§ 111.4-111.17 . . . . . . . . . . . . . . . . . . . 15

11 C.F.R. § 114.15 . . . . . . . . . . . . . . . . . . . . 5, passim

CASES

Arkansas Writers’ Project, Inc. v. Ragland,

 481 U.S. 221 (1987) . . . . . . . . . . . . . . . . . . . . . . . 18

Austin v. Michigan State Chamber of

Commerce, 494 U.S. 652 (1990) . . . . . . . 6, passim

Branzburg v. Hayes, 408 U.S. 665 (1972) . . . . . . 11

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

FEC v. Wisconsin Right to Life, Inc., 551

U.S. 449 (2007) . . . . . . . . . . . . . . . . . . . . 5, 13, 16

First National Bank of Boston v. Bellotti,

435 U.S. 765 (1978) . . . . . . . . . . . . . . . . . . 10, 11
iv

Grosjean v. American Press Co., 297 U.S.

233 (1936) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 18

Lovell v. Griffin, 303 U.S. 444 (1938) . . . . 11, 13, 14

Martin v. Struthers, 319 U.S. 141 (1943) . . . . . . . 15

McConnell v. FEC, 540 U.S. 93 (2003) . . . . 5, passim

McIntyre v. Ohio Elections Commission, 

 514 U.S. 334 (1995) . . . . . . . . . . . . . . . . . . . . 19, 20

Miami Herald Publishing Co. v. Tornillo,

 418 U.S. 241 (1974) . . . . . . . . . . . . . . . . . 16, 17, 20

Mills v. Alabama, 384 U.S. 214 (1966) . . . . . . . 9, 10

Near v. Minnesota, 283 U.S. 697 (1931) . . . . . . . 14

New York Times Co. v. United States, 403

 U.S. 713 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Talley v. California, 362 U.S. 60 (1960) . . . . . . . . 19

United States v. Kahriger, 345 U.S.

22 (1953) ............................... 7

Watchtower Bible and Tract Society v. 

 Village of Stratton, 536 U.S. 150 (2002) . . . . 14, 15

Wisconsin Right to Life, Inc. v. FEC, 546

U.S. 410 (2006) .......................... 5

MISCELLANEOUS

Ben H. Bagdikian, The New Media Monopoly,

 Beacon Press (2004) . . . . . . . . . . . . . . . . . . . . . . 12

IV William Blackstone, Commentaries on the Laws

 of England (U. of Chicago, facsimile ed.

 1769) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 16

Richard Cortner, The Kingfish and the Constitution:

 Huey Long, the First Amendment, and the

 Emergence of Modern Press Freedom in

 America (1996) ........................... 7

FEC Advisory Opinion 2008-15 . . . . . . . . . . . . . . 16
v

FEC Notice 2007-26, 72 Fed. Reg. 72,899

(Dec. 26, 2007) . . . . . . . . . . . . . . . . . . . . 6, passim

Scott Gant, We’re All Journalists Now,

 Free Press (2007) . . . . . . . . . . . . . . . . . . . . . . . . . 12

James Madison, “The Virginia Report of 1799,”

 reprinted in Garrett Epps, ed., The First

 Amendment: Freedom of the Press (2008) . . . . . 11

Jeffrey L. Pasley, The Tyranny of Printers:

 Newspaper Politics in the Early American

 Republic, p. 24 (U. of Va. Press 2001) . . . . . . . . 10

Fredrick Siebert, Freedom of the Press in

 England, 1476-1776, U. of Ill. Press (1965) . . . . 11
1

 It is hereby certified that the parties have consented to the filing

of this brief; that counsel of record for all parties received notice

at least 10 days prior to the filing date of the intention to file this

brief; and that no counsel for a party authored this brief in whole

or in part, and no person other than amici curiae, their members,

or their counsel made a monetary contribution to its preparation

or submission.

INTEREST OF AMICI CURIAE1

These amici curiae form a coalition of interested

nonprofit, tax-exempt, and political organizations,

individuals, and for-profit corporations, committed to

the proper construction of the Constitution and laws of

the United States. Most of these amici have filed

amicus curiae and/or party litigant briefs in the past in

cases before federal courts, including this Court.

Certain of these amici were among the appellants in

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

Twelve of these amici are tax-exempt under section

501(c)(3) of the Internal Revenue Code (“IRC”): 

The Free Speech Defense and Education Fund, Inc., 

American Values, 

Concerned Women for America,

Conservative Legal Defense and Education Fund, 

Downsize DC Foundation, 

English First Foundation, 

Gun Owners Foundation,

Institute on the Constitution, 

The Lincoln Institute for Research and Education, 

The National Center for Public Policy Research, 

U.S. Border Control Foundation, and 

The United States Constitutional Rights Legal Defense

Fund, Inc.
2

Ten are tax-exempt under IRC section 501(c)(4): 

Free Speech Coalition, Inc., 

The Abraham Lincoln Foundation for Public Policy

Research, Inc., 

Americans for the Preservation of Liberty, 

DownsizeDC.org, Inc., 

English First, 

Gun Owners of America, Inc., 

The National Right to Work Committee, 

National Taxpayers Union, 

The Senior Citizens League, and 

U.S. Border Control. 

Two are former Libertarian Party candidates for

federal office: 

Michael Cloud, and 

Carla Howell. 

One is a national political party organization:

Constitution Party. 

Three are for-profit companies which assist

nonprofit organizations in developing and

implementing outreach programs for the public:

Base Connect, Inc., 

Eberle Communications Group, Inc., and 

The Richard Norman Company.

The amici believe that their brief will be of

assistance to the Court, bringing to its attention

relevant matter on freedom of the press, not fully

addressed by the parties. 
3

SUMMARY OF ARGUMENT

Citizens United’s challenge to federal regulation of

electioneering communications should be sustained,

and this Court’s decisions in Austin v. Michigan State

Chamber of Commerce, 494 U.S. 652 (1990), and in

McConnell v. FEC, 540 U.S. 93 (2003), as applied to

BCRA section 203, should be overruled. Both decisions

endorse an erroneous view of the freedom of speech

that conflicts with Citizens United’s freedom of the

press. 

Contrary to the assumptions in Austin and

McConnell, the freedom of the press does not confer a

special privilege upon the institutional press, but is

enjoyed by all the people. Austin’s and McConnell’s

narrow reading of the press freedom is not only

contrary to history, but at odds with new realities of

journalism. 

BCRA section 203 violates Citizens United’s

freedom of press by: (1) establishing a licensing

system; (2) operating as an unconstitutional previous

restraint; (3) intruding into the editorial function;

(4) imposing discriminatory economic penalties and

burdens; and (5) forcing the public disclosure of the

names and addresses of authors and publishers. 

Because Austin and those portions of McConnell

upholding BCRA section 203 violate these free press

principles, they should be overturned.
4

2

 See McConnell v. FEC, 540 U.S. 93, 126-129, 189-90 (2003).

ARGUMENT

I. CITIZENS UNITED’S FIRST AMENDMENT

CHALLENGE SHOULD BE SUSTAINED,

AND AUSTIN AND MCCONNELL, AS

APPLIED TO BCRA SECTION 203, SHOULD

BE OVERRULED.

A. Austin and McConnell Denigrate the

Freedom of the Press.

With the enactment of the Federal Election

Campaign Act of 1971, and its subsequent amendment

in 1974 (“FECA”), Congress installed the Federal

Election Commission (“FEC”) as its gatekeeper to the

marketplace of ideas concerning political campaigns

for federal elective office. Under the constraints

imposed by Buckley v. Valeo, 424 U.S. 1 (1976), the

FEC’s licensing power initially applied only to

“expenditures for communications that in express

terms advocate the election or defeat of a clearly

identified candidate for federal office.” Id., at 44.

Dissatisfied with this “express advocacy” rule, and in

an effort to extend the FEC’s market entry control,2

Congress passed the Bipartisan Campaign Reform Act

of 2002 (“BCRA”), expanding FEC’s reach to

“electioneering communication[s]” — broadcasts

“targeted to the relevant electorate” that “refer[red] to

a clearly identified candidate for Federal office” during
5

a statutorily-specified time proximate to an election.

See 2 U.S.C. § 434(f)(3)(A)(i). 

Initially, it appeared to this Court that such

enlargement of FEC market control was sufficiently

constrained by the literal language of the statute to

meet First Amendment standards. See McConnell v.

FEC, 540 U.S. 93, 194 (2003). However, in 2006, by

unanimous vote, this Court ruled that a broadcast

communication that met the statute’s specified criteria

could be constitutionally protected. See Wisconsin

Right to Life, Inc. v. FEC, 546 U.S. 410, 411-12 (2006).

In an ensuing “as applied” challenge, the Court ruled

that the First Amendment constricted the FEC’s power

to regulate a communication that referred to a

candidate only if the broadcast language was “the

functional equivalent of express advocacy.” FEC

v. Wisconsin Right to Life, Inc., 551 U.S. 449, ___, 168

L.Ed.2d 329, 346 (2007) (emphasis added) (hereinafter

“WRTL II”).

Following WRTL II, the FEC adopted new

regulations permitting corporations and labor unions

to draw on their general treasuries “to make an

electioneering communication ... unless the

communication is susceptible of no reasonable

interpretation other than as an appeal to vote for or

against a clearly identified Federal candidate.” See 11

C.F.R. § 114.15(a). As the FEC acknowledged, the new

rules empowered the FEC to scrutinize the content

of any “issue ad” to ascertain whether it qualified for

an exemption under either (i) its three-pronged “safe

harbor” provision (11 C.F.R. § 114.15(b)) or (ii) its

multi-factor interpretative provision (11 C.F.R.
6

§ 114.15(c)). See FEC Notice 2007-26, 72 Fed. Reg.

72,899-913 (Dec. 26, 2007). Thus, the FEC has

assumed wide discretionary power controlling the

terms under which a corporation or labor union would

be permitted access to the marketplace of ideas during

a federal election season. 

According to both McConnell and Austin v. Michigan

State Chamber of Commerce, 494 U.S. 652 (1990), the

lodging of such discretionary censorship powers in

the executive branch accords with the freedom of

speech, because of the “‘the corrosive and

distorting effects of immense aggregation of

wealth ... that have little or no correlation to the

public’s support for the corporation’s [or union’s]

political ideas.’” See McConnell, 540 U.S. at 206

(emphasis added). For the reasons set out below,

McConnell and Austin should be overturned because

they rest upon an erroneous view of freedom of

speech that conflicts with Citizens United’s freedom

of the press. 

B. BCRA Section 203 Implicates the Freedom

of the Press. 

BCRA section 203 appears to apply equally to all

candidates for election to federal office. In reality, it

was deliberately crafted to vest incumbent members of

Congress with a kind of super-trademark over their

names — to be enforced by the FEC against

independent entities, including incorporated nonprofit

groups known to engage in the pesky activity of

educating the public about the legislative actions of
7

3

 See McConnell, 540 U.S. at 260 (Scalia, J., dissenting).

4

 See generally Richard Cortner, The Kingfish and the

Constitution: Huey Long, the First Amendment, and the

Emergence of Modern Press Freedom in America (1996).

5

 The phraseology is that of Justice Frankfurter from his dissent

in United States v. Kahriger, 345 U.S. 22, 38 (1953).

those incumbents.3 In the past, this Court has not

hesitated to look behind high-sounding legislative

pronouncements to uncover ulterior goals. For

example, in Grosjean v. American Press Co., 297 U.S.

233 (1936), the Court, alerted by such censorious

antecedents in English history (297 U.S. at 245-247),

saw through a Louisiana statute — disguised by the

Huey Long political machine as a revenue-raising “tax”

measure4

 — when, in fact, its “plain purpose [was to]

penaliz[e] the publishers and curtail[] the circulation

of a selected group of newspapers” in violation of the

freedom of the press (id., at 250-51). Likewise, BCRA

section 203, while “wrapped ... in the verbal cellophane

of a [campaign finance reform] measure,”5 is designed

to penalize and curtail corporate and union

communications in violation of the press guarantee.

Although this case appears to have been litigated as

a generic First Amendment challenge with primary

emphasis on freedom of speech (see, e.g., Brief for

Appellant, pp. 10-12), free press issues bubbled to the

surface during oral argument following the

government’s disturbing responses to Justice Alito’s

probing questions as to whether a book could be

banned as an “electioneering communication.” (Oral

Argument Transcript, p. 27, l. 16 – p. 31, l. 1 (Mar. 24,
8

6

 The Deputy Solicitor General was reflecting not only his own

flawed view of press freedom, but that of Congress. Apparently

believing the institutional press to have greater rights than other

Americans, Congress largely exempted the institutional press

from its ban on electioneering communications. 2 U.S.C.

§ 434(f)(3)(B)(i). This exemption parallels the press exemption

applicable to campaign expenditures. 2 U.S.C. § 431(9)(B)(i).

7

 Now DownsizeDC.org, Inc.

2009)). At one point, the government even argued that

“media corporations, the institutional press, would

have a greater First Amendment right” than nonmedia entities such as Citizens United.6

 Tr. 28, ll. 7-

11, p. 34, ll. 1-25. Such a dangerous assertion cannot

go unchallenged. Nor can this appeal be resolved

properly unless the Court grapples with what has now

been revealed to be the central issue — the

applicability and scope of the freedom of the press.

II. THE FREEDOM OF THE PRESS IS NOT A

SPECIAL PRIVILEGE OF THE

INSTITUTIONAL PRESS.

In Austin, the Michigan State Chamber of

Commerce never raised the First Amendment free

press issue. In McConnell, however, one group of

litigants (Congressman Ron Paul, Gun Owners of

America, Inc., Gun Owners of America Political Victory

Fund, RealCampaignReform.org7, Citizens United,

Citizens United Political Victory Fund, Michael Cloud,

and Carla Howell) did, assailing BCRA section 203 “as

violative of Freedom of the Press” (see, e.g., Brief for

Appellants Congressman Ron Paul, et al., pp. 16-50).

This argument was summarily dismissed (see 540 U.S.
9

at 209 n.89), apparently on the ground that BCRA’s

media exemption preserved whatever press rights

might be at stake. See 540 U.S. at 208-09. Both

Austin and McConnell having failed to address the

press issue, the two were wrongly decided.

McConnell found BCRA’s “narrow exception [2

U.S.C. section 434(f)(3)(B)(i)] [to be] wholly consistent

with First Amendment principles,” because of Austin.

Id., 540 U.S. at 208. Quoting from Mills v. Alabama,

384 U.S. 214, 219 (1966), Austin adopted the view that:

“‘[T]he press serves and was designed to serve as a

powerful antidote to any abuses of power by

governmental officials and as a constitutionally

chosen means for keeping officials elected by the

people responsible to all the people whom they were

selected to serve.’” Austin, 494 U.S. at 667-68

(emphasis added).

But Mills did not elevate the institutional press to

such a preferred position. To the contrary, Mills stated

that “[t]he Constitution specifically selected the press,

which includes not only newspapers, books and

magazines, but humble leaflets and circulars ... to

play an important role in the discussion of public

affairs.” Mills, 384 U.S. at 219 (emphasis added).

Furthermore, Mills emphasized that the people’s press

freedom plays a key role in the electoral process. Id.,

384 U.S. at 218-19. Thus, Mills ruled unconstitutional

a statute that forbade “‘any electioneering ... for or

against the election or nomination of any candidate ...

that is being voted on on the day on which the

election affecting such candidates ... is being held.’”
10

Id., at 216 n.2, 220 (emphasis added). And it so ruled

on the grounds of the freedom of the press:

The Alabama Corrupt Practices Act ... silences the

press at a time when it can be most effective.

It is difficult to conceive of a more obvious and

flagrant abridgment of the constitutionally

guaranteed freedom of the press. [Id., 384 U.S.

at 219 (emphasis added).] 

While Mills concerned a newspaper editorial, it was

most certainly not based on Austin’s and McConnell’s

“narrow reading of the Press Clause,” which would

cause “fundamental difficulties” of interpretation and

application. See First National Bank of Boston v.

Bellotti, 435 U.S. 765, 798-801 (1978) (Burger, C.J.,

concurring). As Justice Scalia pointedly asked at oral

argument: “But does ‘the press’ mean the media in

that constitutional provision? You think in 1791 there

were ... people running around with fedoras that had

... little press tickets in it.... Doesn’t it cover ... the

right of any individual to ... write, to publish?” Tr. 34,

ll. 5-13. 

Although “indispensable to the political ... life of

their communities,” colonial printers were not a

dominant institution. Jeffrey L. Pasley, The Tyranny

of Printers: Newspaper Politics in the Early American

Republic, p. 24 (U. of Va. Press 2001). Indeed,

newspapers were transient concerns, as “more than

two-thirds of the American newspapers established

before 1821 published for three years or less.” Id., at

52.
11

Prior to the recognition of the freedom of the press in

England, it was assumed “the press should be

regulated so as to ensure the success of the royal

policies.” Fredrick Siebert, Freedom of the Press in

England, 1476-1776, U. of Ill. Press, p. 6 (1965). By

“the end of the eighteenth century,” however, the

“freedom of the press became one of the natural rights

of man as derived from the law of God and incapable of

infringement by any man-made power.” Id., at 7.

As James Madison put it, in the United States: 

[t]he people, not the government possess the

absolute sovereignty. The legislature, no less than

the executive is under limitations of power.... This

security of the freedom of the press requires,

that it should be exempt, not only from previous

restraint by the executive, as in Great Britain, but

from legislative restraint also. [James Madison,

“The Virginia Report of 1799,” reprinted in

Garrett Epps, ed., The First Amendment: Freedom

of the Press, p. 78 (2008) (emphasis added).]

Thus, the American experience validated

Blackstone’s description that the “liberty of the press

is indeed essential to the nature of a free state.” IV

William Blackstone, Commentaries on the Laws of

England, p. 151 (U. of Chicago, facsimile ed. 1769). In

his concurring opinion in Bellotti, Chief Justice Burger

rejected the notion that the freedom of the press

bestows First Amendment monopoly rights upon the

institutional press. Id., 435 U.S. at 802. See also

Lovell v. Griffin, 303 U.S. 444, 452 (1938); Branzburg

v. Hayes, 408 U.S. 665, 704 (1972) (“the traditional
12

doctrine [of the] liberty of the press is the right of the

lonely pamphleteer who uses carbon paper or a

mimeograph just as much as of the large metropolitan

publisher....”).

The government’s narrow reading of the press

freedom is not only contrary to history, but is at odds

with the realities of the twenty-first century. To

believe that the institutional press was granted special

constitutional privileges would be to grant special

rights largely to “[f]ive global-dimension firms [which]

own most of the newspapers, magazines, book

publishers, motion picture studios, and radio and

television stations in the United States” — i.e., Time

Warner, The Walt Disney Company, News

Corporation, Viacom, and Bertelsmann. Ben H.

Bagdikian, The New Media Monopoly, Beacon Press,

p. 3 (2004). And the government’s view would deny the

reality of the Internet:

It was not long ago that the boundaries between

journalists and the rest of us seemed relatively

clear.... Those days are gone. The lines

distinguishing professional journalists from other

people who disseminate information, ideas and

opinions to a wide audience have been blurred,

perhaps beyond recognition.... [Scott Gant, We’re

All Journalists Now, Free Press, p. 3 (2007).]

Contrary to Austin and McConnell, freedom of the

press belongs not just to corporations like General

Electric, but rather to “the people.” 
13

8

 See also FEC Notice 2007-26, 72 Fed. Reg. 72,899-901 (Dec. 26,

2007). 

III. BCRA SECTION 203 VIOLATES CITIZENS

UNITED’S FREEDOM OF THE PRESS.

A. BCRA Section 203 Establishes an

Unconstitutional Licensing System.

Empowered by BCRA section 203’s grant of editorial

discretion, and subject to no objective standard, the

FEC decides which issue ads may be broadcast without

compliance with all of the rules imposed on political

committees (e.g., financial stricture, reporting, and

public disclosure). Notwithstanding WRTL II, the FEC

commissioners also assert jurisdiction over issue ads

that are not the functional equivalent of express

advocacy, requiring the sponsors of constitutionallyprotected ads to comply with BCRA section 203’s

reporting and disclosure requirements. See 11 C.F.R.

§ 114.15(f).8

For over 70 years, it has been well-established that

any effort by the government to require a permit before

dissemination of ideas “strikes at the very foundation

of the freedom of the press by subjecting it to license

and censorship.” See Lovell v. Griffin, 303 U.S. 444,

451 (1938). Yet, 2 U.S.C. section 434(f)(1) and its

implementing regulation (11 C.F.R. § 104.20(a) and (b))

require that Citizens United “file a statement” with the

FEC within 24 hours after disbursement of an initial

$10,000 of direct costs for airing any communication

referring to a candidate for federal office — whether or

not it is the functional equivalent of express advocacy
14

— during the specified statutory periods. Such

statement must include the name and addresses of all

persons directly involved in the communication. 11

C.F.R. § 104.20(c). Such forced disclosure is

tantamount to “‘censorship through license’” which,

contrary to “‘the doctrine of the freedom of the press ...

makes impossible the free and unhampered

distribution’” of ideas. See Watchtower Bible and Tract

Society v. Village of Stratton, 536 U.S. 150, 162 (2002),

quoting from Schneider v. State, 308 U.S. 147, 164

(1939). 

B. BCRA Section 203 Operates as an

Unconstitutional “Previous Restraint.”

BCRA section 203 also violates the press principle

against “previous restraint[s].” See Lovell, 303 U.S. at

451-52. In Near v. Minnesota, 283 U.S. 697 (1931),

this Court ruled that a statute authorizing injunctive

relief against an allegedly libelous publication

constituted “an unconstitutional restraint upon

publication.” Id., 283 U.S. at 723. Since Near, this

Court has found governmental efforts to enjoin the

publication of protected speech to be presumptively

unconstitutional, a presumption that can be overcome

only by an “overwhelming national interest.” See New

York Times Co. v. United States, 403 U.S. 713, 726 n.*,

726-27 (1971) (Brennan, J., concurring). 

Yet, Congress has equipped the FEC with the power

to seek injunctive relief in a federal district court

without having to meet this extraordinarily high

burden. See 2 U.S.C. § 437g(a)(6). Additionally,

Congress has established an enforcement process that
15

9

 Martin v. Struthers, 319 U.S. 141, 144 (1943).

can be triggered by a complaint filed with the FEC,

signed by a person who only believes that a violation of

the FECA laws “is about to occur.” See 2 U.S.C.

§ 437g and 11 C.F.R. §§ 111.4-111.17 (emphasis

added). Further, under 2 U.S.C. section 437g(a)(2), the

FEC may initiate its own investigation and

enforcement processes to determine if there is probable

cause that a violation is about to occur. See 11 C.F.R.

§§ 111.9-111.17. Such intrusive administrative powers

do nothing to alleviate the “previous restraint.”

Rather, they exacerbate it. 

By these administrative means, the FEC would

“substitute[] [its] judgment ... for the judgment of ...

individual householder[s],”9

 at times most critical to

them — just before a federal election. As the Court

observed in Watchtower, “‘the evils to be prevented [by

the Free Press Clause] were not the censorship of the

press merely, but any action of the government by

means of which it might prevent such free and

general discussion of public matters as seems

absolutely essential to prepare the people for an

intelligent exercise of their rights as citizens.’”

Id., 536 U.S. at 168 (emphasis added).

C. BCRA Section 203 Unconstitutionally

Intrudes into the Function of Editors.

Purportedly, BCRA section 203 is warranted by a

Congressional policy designed to protect the federal

electoral process from “‘the corrosive and distorting
16

effects of immense aggregations of wealth.’” Id., 540

U.S. at 205. In Miami Herald Publishing Co. v.

Tornillo, 418 U.S. 241 (1974), this Court rejected an

almost identical justification for a 1913 Florida statute

requiring a newspaper to print a state office

candidate’s reply “to criticism and attacks on his record

by a newspaper.” Id. at 243. Although the statute was

defended as necessary to counter the “noncompetitive

and enormously powerful” established press (id., at

249), the Court ruled that it “fail[ed] to clear the

barriers of the First Amendment because of its

intrusion into the function of editors.” Id., at 258.

According to Blackstone’s pristine statement of the

liberty of the press, “Every freeman has an undoubted

right to lay what sentiments he pleases before the

public: to forbid this, is to destroy the freedom of the

press....” IV Blackstone’s Commentaries 151-52. Thus,

the Court in Miami Herald ruled that “the choice of

material to go into a newspaper ... and treatment of

public issues and public officials — whether fair or

unfair — constitute the exercise of editorial control and

judgment” outside of “governmental regulation.” Id.,

418 U.S. at 258. 

In an effort to implement WRTL II, the FEC has

embarked on an editorial quest to sort out those issue

ads that “function” as express advocacy from those that

do not. See FEC Notice 2007-26, 72 Fed. Reg. 72,899-

915. To that end, FEC has promulgated regulations to

guide its “content” and “interpretive” judgments. See,

e.g., 11 C.F.R. § 114.15(c)(2). Indeed, as evidenced by

FEC Advisory Opinion 2008-15, the FEC

commissioners may have no better reason for ruling
17

that a proposed issue ad may be an electioneering

communication than that it did not receive a majority

Commission vote to authorize it. In such case, the

rejected ad did not fall to the “newsroom floor” because

of the editorial judgment of its author; rather, it fell to

the “FEC floor,” because BCRA section 203 “allow[s]

government to insinuate itself into the editorial rooms

of this Nation’s press.” See Miami Herald, 418 U.S. at

259 (White, J., concurring). 

D. BCRA Section 203 Unconstitutionally

Imposes Economic Penalties and Burdens

on Issue Advertising.

As McConnell pointed out, BCRA section 203 does

not ban corporate- or union-sponsored issue ads

referring to a candidate for federal office broadcast

during the covered periods before election. Rather,

“under BCRA, corporations and unions may not use

their general treasury funds to finance electioneering

communications, but they remain free to organize and

administer segregated funds, or PACs, for that

purpose.” Id., 540 U.S. at 204. A similar argument

was made in Miami Herald — that the right-to-reply

statute “does not amount to a restriction of [the

newspaper’s] right to speak because ‘the statute in

question here has not prevented the Miami Herald

from saying anything it wished.’” Id., 418 U.S. at 256.

But, as the Miami Herald Court pointed out,

“Government restraint on publishing need not fall into

familiar and traditional patterns to be subject to

constitutional limitations on government powers.” Id.

Rather, the question is whether BCRA section 203

“exacts a penalty on the basis of the content” of the
18

communication (id.), and therefore, “under the

operation of the statute, political and electoral coverage

would be blunted or reduced” (id., at 257). If so, it

would be a violation of the freedom of the press. See

Grosjean, 297 U.S. at 250.

The very purpose of BCRA section 203 is to “blunt or

reduce” corporate and labor union influence in the

electoral marketplace, by forcing corporations and

labor unions to form a PAC and conform to the strict

rules by which money is to be raised. By increasing the

costs of corporate and labor union participation in the

public debate swirling about in the electoral politics

marketplace, BCRA section 203 plays the same role as

the infamous English “taxes on knowledge,” the “main

purpose of [which] was to suppress the publications of

comments and criticisms objectionable to the Crown.”

See Grosjean, 297 U.S. at 246. 

Moreover, the financial burden imposed by BCRA

section 203 is discriminatory in that a like burden is

not placed upon a news story or commentary or

editorial by a “broadcast facility.” See 2 U.S.C.

§ 434(f)(3)(B)(i). As this Court observed in Arkansas

Writers’ Project, Inc. v. Ragland, 481 U.S. 221 (1987),

“a discriminatory tax on the press burdens rights

protected by the First Amendment ... because selective

taxation of the press ... poses a particular danger of

abuse by the State.” Id., 481 U.S. at 227-28. 
19

E. BCRA Section 203 Violates the Press

Principle of Anonymity.

Even if an issue ad is found not to be the functional

equivalent of “express advocacy,” the FEC requires

corporations and labor unions to comply with BCRA

section 203’s disclaimer and disclosure provisions,

including identification of the person(s) responsible for

the issue ad and the person(s) whose finances made the

ad possible. See FEC Notice 2007-26, 72 Fed. Reg.

72,900. In short, the FEC requires that the author and

publisher of the ad be disclosed to the public.

As Justice Black observed in Talley v. California, 362

U.S. 60 (1960):

The obnoxious press licensing law of England,

which also was enforced on the Colonies was due

in part to the knowledge that exposure of the

names of printers, writers and distributors

would lessen the circulation of literature critical of

the government. [Id., 362 U.S. at 64 (emphasis

added).]

In his concurring opinion in McIntyre v. Ohio

Elections Commission, 514 U.S. 334 (1995), Justice

Thomas documented “the extent to which anonymity

and the freedom of the press were intertwined in the

early American mind.” Id., at 361. And rightfully so.

The principle of anonymity is akin to the principle of

editorial control. As the McIntyre majority

acknowledged, “the identity of the speaker is no

different from other components of the document’s

content that the author is free to include or exclude.”
20

Id., 514 U.S. at 348. And as McIntyre pointed out, the

people need no help from the government to sort out

the true from the false:

“Don’t underestimate the common man. People ...

can evaluate [the] anonymity along with [the]

message as long as they are permitted ... to read

that message. [O]nce they have done so, it is for

them to decide what is ‘responsible,’ what is

valuable, and what is truth.” [Id., 514 U.S. at 348

n.11.]

The FEC rules requiring disclosure bespeak the

opposite view, that people are not capable of ferreting

out the truth without the government’s paternalistic

oversight. Such a policy is anathema to the freedom of

the press. See Miami Herald, 418 U.S. at 259 (White,

J., concurring). 

CONCLUSION

Austin, and those portions of McConnell which relate

to BCRA section 203, should be overturned, and BCRA

section 203 should be declared unconstitutional as

violative of the freedom of the press. 
21

Respectfully submitted,

MARK WEINBERG WILLIAM J. OLSON*

WEINBERG & JACOBS HERBERT W. TITUS 

11300 Rockville Pike JOHN S. MILES

Suite 1200 JEREMIAH L. MORGAN

Rockville, MD 20852 WILLIAM J. OLSON, P.C.

(301) 468-5500 370 Maple Avenue West

Suite 4

Vienna, VA 22180-5615

(703) 356-5070

Attorneys for Amici Curiae

*Counsel of Record

July 31, 2009