No. 08-205 

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

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 OF AMICI CURIAE THE WYOMING 

LIBERTY GROUP AND THE GOLDWATER 

INSTITUTE SCHARF-NORTON CENTER FOR 

CONSTITUTIONAL LITIGATION IN SUPPORT OF 

APPELLANT ON SUPPLEMENTAL QUESTION 

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

BENJAMIN BARR

 Counsel of Record 

GOVERNMENT WATCH, P.C. 

619 Pickford Place N.E. 

Washington, DC 20002 

(240) 863-8280 

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

OR CALL COLLECT (402) 342-2831 
i 

TABLE OF CONTENTS 

Page 

TABLE OF CONTENTS ......................................... i 

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

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

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

ARGUMENT ........................................................... 3 

 I. Historic Truths: The Powerful Few Forever 

Seek to Silence Dissent ................................ 5 

 II. This Court Cannot Design a Workable 

Standard to Weed Out “Impure” Speech ..... 11 

 III. A Return to First Principles: Favoring 

Unbridled Dissent ........................................ 15 

CONCLUSION ....................................................... 20 
ii 

TABLE OF AUTHORITIES 

Page 

CASES

Austin v. Michigan State Chamber of Commerce,

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

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

Dennis v. United States, 341 U.S. 494 (1951) ............ 13 

Ex parte Starr, 263 Fed. 145 (1920) ............................. 7 

FEC v. CLITRIM, 616 F.2d 45 (2d Cir. 1980) ........... 18 

FEC v. Massachusetts Citizens for Life, 479 

U.S. 238 (1986) .................................................... 5, 11 

FEC v. Wisconsin Right to Life, Inc., 127 S.Ct. 

2652 (2007) ............................................ 11, 16, 19, 20 

McConnell v. FEC, 540 U.S. 93 

(2003) ................................................. 3, 11, 12, 16, 18 

Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971) ........ 17 

Mutual Film Corporation v. Industrial Comm’n 

of Ohio, 236 U.S. 230 (1915) ................................... 13 

Nixon v. Shrink Missouri Government PAC,

528 U.S. 377 (2000) ................................................... 5 

Payne v. Tennessee, 501 U.S. 808 (1991) .................... 16 

Roth v. U.S., 354 U.S. 476 (1957) ......................... 13, 16 

Smith v. Allwright, 321 U.S. 649 (1944) .................... 16 

State v. Wyman, 56 Mont. 600 (1919) .......................... 7 

State v. Smith, 57 Mont. 563 (1920) ............................ 7 
iii 

TABLE OF AUTHORITIES – Continued 

Page 

Thomas v. Collins, 323 U.S. 516 (1945) .................... 19 

U.S. v. O’Brien, 391 U.S. 367 (1968) .......................... 13 

CONSTITUTION

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

STATUTES AND REGULATIONS

2 U.S.C. § 431 ......................................................... 3, 16 

2 U.S.C. § 431b(b) ......................................................... 3 

2 U.S.C. § 431(b)c ......................................................... 3 

FEDERAL ELECTION COMMISSION SOURCES

Committee to Elect Sekhon for Congress and 

Daljit Kaur Sekhon, Statement of Reasons, 

MUR 5957 (F.E.C. June 2 and 24, 2009) .................. 4 

Explanation and Justification for Electioneering Communications, 70 Fed. Reg. 

75713 (F.E.C. Dec. 21, 2005) ................................... 10 

Explanation and Justification for Electioneering Communications, Final Rule, 72 

Fed. Reg. 72899 (F.E.C. Dec. 26, 2007) .................. 10 

Explanation and Justification for Definitions 

of “Solicit” and “Direct,” 72 Fed. Reg. 13926 

(F.E.C. March 20, 2006) ............................................ 9 

In the Matter of Black Rock Group, Advisory 

Opinion Request 2009-13 (F.E.C. May 27, 

2009) .......................................................................... 9 
iv 

TABLE OF AUTHORITIES – Continued 

Page 

In the Matter of Senator John McCain,

Statement of Reasons (SOR) Hans A. von 

Spakovsky, MUR 5712 (F.E.C. March 2, 

2007) .......................................................................... 9 

Notice of Proposed Rulemaking, Electioneering 

Communications, 72 Fed. Reg. 50261 (F.E.C. 

August 31, 2007) ............................................... 10, 11 

Revised Explanation and Justification for 

Candidate Solicitation at State, District, and 

Local Party Fundraising Events, 70 Fed. 

Reg. 37649 (F.E.C. June 30, 2005)............................ 9 

Supplemental Explanation and Justification 

for Political Committee Status, 72 Fed. Reg. 

5595 (F.E.C. Feb. 7, 2007) ........................................ 9 

OTHER AUTHORITIES

British Broadcasting Company, Ahmadinejad 

re-election sparks Iran clashes (June 13, 

2009) .......................................................................... 8 

Cass Sunstein, The Future of Free Speech, The 

Little Magazine (2001) .............................................. 4 

Chief Justice Charles Evans Hughes, Cornerstone Address, United States Supreme Court 

Building (1932) .......................................................... 5 

Espionage Act of 1917 ................................................ 13 

James Bopp Jr., Silencing Debate, National 

Review Online (April 2007) ...................................... 4 
v 

TABLE OF AUTHORITIES – Continued 

Page 

Geoffrey R. Stone, PERILOUS TIMES: FREE

SPEECH IN WARTIME FROM THE SEDITION ACT

OF 1798 TO THE WAR ON TERRORISM (2004) ............... 3 

Jeffrey D. Hockett, NEW DEAL JUSTICE: THE

CONSTITUTIONAL JURISPRUDENCE OF HUGO L. 

BLACK, FELIX FRANKFURTER, AND ROBERT H. 

JACKSON (1996) .................................................. 13, 14 

Luke Owen Pike, HISTORY OF CRIME IN

ENGLAND, VOL. II (1876) ............................................ 6 

Montana Sedition Act of 1918 .................................... 13 

Montana Sedition Project, University of 

Montana School of Journalism ............................. 7, 8 

Renate Wind, DIETRICH BONHOEFFER, A SPOKE

IN THE WHEEL (1992) ............................................... 12 

Robert Allen Rutland, THE BIRTH OF THE BILL

OF RIGHTS, 1776-1791 (1983)..................................... 6 

Roger Foster, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES (1896) ............................ 7 

Samuel Eagle Forman, THE LIFE AND WRITINGS

OF THOMAS JEFFERSON (1998) .................................. 14 

Sedition Act of 1798 ................................................ 3, 17 

Sedition Act of 1918 ................................................ 7, 13 

Smith Act of 1940 ....................................................... 13 

Stephen Breyer, ACTIVE LIBERTY, 46 (2005) ................ 4 
vi 

TABLE OF AUTHORITIES – Continued 

Page 

T.B. Howell, A COMPLETE COLLECTION OF STATE

TRIALS AND PROCEEDINGS FOR HIGH TREASON

AND OTHER CRIMES AND MISDEMEANORS, VOL. 

III (1816) .................................................................... 7 

Tillman Act, 34 Stat. 864 (1907) .............................. 5, 6 

Universal Military Training and Service Act of 

1948 ......................................................................... 13 
1 

INTEREST OF AMICI CURIAE1

The Wyoming Liberty Group believes that the 

great strength of Wyoming rests in the ambition and 

entrepreneurialism of ordinary citizens. While limited 

government is conducive to freedom, unchecked 

government promotes the suppression of individual 

liberty. In a state where the people are sovereign, the 

Group’s mission is to provide research and education 

supportive of the founding principles of free societies. 

Its mission is to facilitate the practical exercise of 

liberty in Wyoming through public policy options that 

are faithful to protecting property rights, individual 

liberty, privacy, federalism, free markets, and 

decentralized decision-making. The Wyoming Liberty 

Group promotes the enhancement of liberty to foster 

a thriving, vigorous, and prosperous civil society, true 

to Wyoming’s founding vision. The issues presented in 

this case are of interest to the Wyoming Liberty 

Group because they involve the fundamental, and 

threatened, right of citizens to freely participate and 

share their point of view in the electoral and political 

process. 

 The Scharf-Norton Center for Constitutional 

Litigation is part of the Goldwater Institute, which is 

a tax exempt educational foundation under section 

1

 This brief is filed with the written consent of all parties. 

No counsel for any party authored this brief in whole or in part, 

nor did any person or entity, other than Amici or their counsel, 

make a monetary contribution to the preparation or submission 

of this brief. 
2 

501I(3) of the Internal Revenue Code. The Goldwater 

Institute advances public policies that further the 

principles of limited government, economic freedom 

and individual responsibility. The integrated mission 

of the Scharf-Norton Center for Constitutional Litigation is to preserve individual liberty by enforcing the 

features of our state and federal constitutions that 

directly and structurally protect individual rights, 

including the bill of rights, the doctrine of separation 

of powers and federalism. To ensure its independence, 

the Goldwater Institute neither seeks nor accepts 

government funds, and no single contributor has 

provided more than five percent of its annual revenue 

on an ongoing basis. 

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

SUMMARY OF ARGUMENT 

1. This Court cannot entrust administrative 

agencies to fairly supervise and regulate the 

political speech of our citizens. 

2. This Court’s historical dedication to balancing tests assures inconsistent, regulationfriendly results. 

3. Were this Court to return to the simple 

command of the First Amendment, it would 

assure that all speakers, regardless of ideological conviction, would receive the protection promised to them under the First 

Amendment. 

--------------------------------- ♦ ---------------------------------
3 

ARGUMENT 

 This brief concerns the silencing of political 

dissent in the United States through provisions of the 

Federal Election Campaign Act (“FECA”), 2 U.S.C. 

§ 431 et seq., and the Bipartisan Campaign Reform 

Act (“BCRA”), 2 U.S.C. § 431b(b)(2) and (c). While 

enjoying a new statutory label today (electioneering 

communications ban), the drive to cleanse our 

national political debate of “impure” speech remains 

constant, and cherished liberties threatened. The 

Wyoming Liberty Group and the Goldwater Institute 

fully recommend that this Court reverse its key 

holdings in Austin v. Michigan State Chamber of 

Commerce, 494 U.S. 652 (1990) and McConnell v. 

FEC, 540 U.S. 93 (2003), such that strict, objective 

protection for political expression will once again 

carry the day. 

 The First Amendment struggles to survive its 

harshest night. In a Republic where the people are 

sovereign, the prolonged dismantlement of free 

speech remains a curiously persistent inclination of 

America’s ruling elite. From the start of this nation, 

Federalists quelled government criticism with the 

Sedition Act of 1798 that openly claimed its purpose 

as smothering the “unbridled spirit of opposition to 

government.” Geoffrey R. Stone, PERILOUS TIMES: 

FREE SPEECH IN WARTIME FROM THE SEDITION ACT OF

1798 TO THE WAR ON TERRORISM (2004). Our national 

commitment to respecting the unbridled spirit of 

dissent remains extant, if somewhat battered. Viva 

our unbridled spirit of dissent. 
4 

 This Court’s unwieldy number of balancing tests 

decide whether speech, as the dated First Amendment states, will not be infringed, or whether the 

beckoning howl of egalitarianism, oft-fabricated fears 

about the appearance of corruption, or anxiety over 

the “distorting” effects of speech are sufficient to 

eliminate that guarantee. See Cass Sunstein, The 

Future of Free Speech, The Little Magazine (2001) 

(explaining that “a well-functioning system of free 

expression” requires that “people should be exposed 

to materials that they would not have chosen in 

advance”), James Bopp Jr., Silencing Debate, National Review Online, April 24, 2007, Stephen Breyer, 

ACTIVE LIBERTY, 46 (2005) (arguing that the First 

Amendment seeks to “facilitate a conversation among 

ordinary citizens that will encourage their informed 

participation on the electoral process”). These tests 

remain plum intellectual exercises – affording the 

speech-cleansing class their own bully pulpit to 

sermonize about the virtues of pleasant speech. As 

this Court elongates its free speech formulas, citizens 

of average means are stripped of their ability to 

speak, being financially unable to hire boutique 

election law attorneys just so they might participate 

in the electoral process and speak. See, e.g.,

Committee to Elect Sekhon for Congress and Daljit 

Kaur Sekhon, MUR 5957 (SOR’s F.E.C. June 2 and 

24, 2009) (demonstrating the FEC’s real debate about 

whether it would be appropriate to severely penalize 

a first time, inexperienced candidate for failure to file 

paperwork with the Commission correctly). 
5 

 Some justices of this Court may be aggravated 

with the FEC when they establish speech rules that 

leave citizens confused and unable to speak easily. 

Members of this august bench have flung about 

weighty Rorschach tests for some time, asking 

whether speech could be banned because of self-styled 

“compelling” justifications, FEC v. Massachusetts 

Citizens for Life, 479 U.S. 238 (1986), 252 (1986), or 

upholding “significant interferences” of speech due to 

“sufficiently important interests,” Nixon v. Shrink 

Missouri Government PAC, 528 U.S. 377 (2000), and 

examining when “empirical information” might 

compel rationing speech for citizens’ best interests, id. 

(Breyer, J., concurring). 

 The hour grows late for this Court to end 

its compulsion to promulgate obscure and libertydepriving constitutional standards. Should this Court 

fail to offer citizens a proper remedy, the Constitution 

proves futile. “The Republic endures and this [Court] 

is the symbol of its faith.” Chief Justice Charles 

Evans Hughes, Cornerstone Address, United States 

Supreme Court Building (1932). This Court may 

continue to balance and weigh, fiddling collectively 

while the Republic burns, or boldly reclaim its place 

as a guarantor of our rights. 

I. Historic Truths: The Powerful Few Forever 

Seek to Silence Dissent 

Since the enactment of the Tillman Act in 1907, 

Americans have witnessed the progressive decay of 
6 

their security to speak their minds freely about 

contested political controversies. 34 Stat. 864 (1907). 

Americans have not always been cognizant of their 

eroding liberties. Popular patriotism abounds and the 

ever-sensible Federal Election Commission finds itself charitable enough to deem some forms of political 

opposition “permissible.” Viva the spirit of moderated 

dissent. 

 It was the British Crown who first developed an 

effective prototype of the FEC’s electioneering communications ban. English licensing laws outlawed the 

publication of seditious writings – communications 

that expressed a harmful opinion about public 

officials. Robert Allen Rutland, THE BIRTH OF THE BILL

OF RIGHTS, 1776-1791 (1983). Within this scheme, the 

Archbishop of Canterbury held the power to decide 

whether writings would be licensed. Speech favorable 

was, in today’s vernacular, deemed a “permissible 

electioneering communication.” 

 John Lilburne, the famed Puritanical dissenter, 

spent considerable time incarcerated for a simple 

crime – political activism. Luke Owen Pike, HISTORY

OF CRIME IN ENGLAND, VOL. II (1876). Lilburne directed the Levellers, which produced controversial 

political pamphlets and provided for their distribution. Today, Lilburne and his experiences before the 

Star Chamber are widely credited with the development of many taken-for-granted constitutional protections. 
7 

 After deciding to distribute impermissible electioneering communications, the Crown arrested 

Lilburne for his import of “scandalous” books. Roger 

Foster, COMMENTARIES ON THE CONSTITUTION OF THE

UNITED STATES (1896). The Star Chamber fined him 

some 500 pounds along with an order of pillory. With 

shoulders that “swelled almost as big as a penny 

loafe,” Lilburne was lashed, gagged until bled, and 

sent to Fleet Prison. T.B. Howell, A COMPLETE

COLLECTION OF STATE TRIALS AND PROCEEDINGS FOR

HIGH TREASON AND OTHER CRIMES AND MISDEMEANORS, 

VOL. III (1816). Lilburne would find the remainder of 

his life plagued by insistent interference with his 

opinions, all because he dared criticize public 

officeholders. 

 The unfortunate lessons of history have not 

proved themselves an effective vaccine against mankind’s dark temptations to stifle speech. After early 

experiences with the federal Sedition Act of 1798, 

countless other government bodies worked tirelessly 

to purify the political process. During World War I, 

the Montana legislature passed its own Sedition Act 

in 1918, punishing speech critical of the government 

that was disloyal, scurrilous, or abusive. See, e.g., Ex 

parte Starr, 263 Fed. 145 (1920); State v. Wyman, 56 

Mont. 600 (1919); State v. Smith, 57 Mont. 563 

(1920). Most of the punished speech criticized war 

efforts and military operations. For example, a traveling salesman received a sentence of 7.5 to 20 years for 

describing wartime food restrictions as a “joke.” See 

Montana Sedition Project, University of Montana 
8 

School of Journalism. Other convictions were premised on citizens stating that the United States had 

“no business being there.” Id. 

 More recently, after reform candidates lost in 

Iran, officeholders grew tired of their subjects’ chorus 

of dissent. From the perspective of Iran’s governing 

class, dissent found its home in the breeding grounds 

of scandalous ideas, and played no favorable role in 

electoral debate. The governing elite of Iran did an 

apt job defending their shutdown of debate, reasoning 

that it amounted to “psychological warfare.” British 

Broadcasting Company, Ahmadinejad re-election 

sparks Iran clashes (June 13, 2009). Regardless of 

time or place, the governing elite will find inventive 

causes to demonstrate that dissenting opinions are 

not the stuff citizens should be trusted with. Fortunately, Americans have a clear remedy against such 

poppycock. 

 Incumbent officeholders, whether in Lilburne’s 

England or here in the U.S., are not largely known for 

their well-tolerated acceptance of public criticism. 

Understandably, those who seek to stomp out speech 

never label their efforts as such. Labels matter. From 

the governing posts of the powerful few, cautionary 

edicts flow, explaining government’s noble duty to 

protect citizens from ideas deemed injurious. Dangerous ideas can amount to just about anything – 

from anti-papist pamphlets, to Iranian political 

protests, to films critical of presidential candidates. 

Wherever in the world the frenzied drive to cleanse 

public debate of improper ideas thrives, there is also 
9 

the toxic seed of paternalism, and paternalism gives 

way to the death of civil liberties. 

 Citizens in the U.S. are privileged to live in a 

nation where government-sponsored clubbings, shootings, and midnight raids are not the norm. But they 

remain unfortunate to face the steady decline of 

protection for the First Amendment. For more than 

thirty years, the FEC has micromanaged how citizens 

may associate, what they may say, when they may 

say it, and how they must communicate their message, if such a message is fortunate enough to be 

deemed “permissible.” Were it bad enough that 

citizens in a free republic found their speech micromanaged by a federal agency, the fact that this 

Commission applies its regulations haphazardly 

makes the need for clear instruction and remedy from 

this Court even more apparent. See, e.g., Supplemental Explanation and Justification for Political 

Committee Status, 72 Fed. Reg. 5595 (F.E.C. Feb. 7, 

2007) (detailing comprehensive rules for triggering 

political committee status), cf. Advisory Opinion Request 2009-13 and accompanying documents, Black 

Rock Group (F.E.C. May 27, 2009) (illustrating the 

Commission’s inability to agree upon what triggered 

political committee status – even with years of detailed rulemaking efforts); Explanation and Justification for Definitions of “Solicit” and “Direct,” 72 Fed. 

Reg. 13926 (F.E.C. March 20, 2006); Revised Explanation and Justification for Candidate Solicitation at 

State, District, and Local Party Fundraising Events, 

70 Fed. Reg. 37649 (F.E.C. June 30, 2005), cf. In the 
10 

Matter of Senator John McCain, Statement of 

Reasons (SOR) Hans A. von Spakovsky, MUR 5712 

(F.E.C. March 2, 2007) (detailing the Commission’s 

head-over-heels, inconsistent approach to interpreting solicitation restrictions); Explanation and Justification for Electioneering Communications, 70 Fed. 

Reg. 75713 (F.E.C. Dec. 21, 2005); Notice of Proposed 

Rulemaking, Electioneering Communications, 72 

Fed. Reg. 50261 (F.E.C. Aug. 31, 2007) (including 

absurd examples of true speech bans including a 

candidate dressing up like “Rocky” the prizefighter); 

Explanation and Justification for Electioneering 

Communications, Final Rule, 72 Fed. Reg. 72899 

(F.E.C. Dec. 26, 2007). 

 Sanctioning the FEC’s continued promulgation of 

prolix and vague speech regulations with related flyby-night enforcement must end. This practice trades 

respect for the common citizen’s capacity to make 

independent judgments for the artificial safety of 

having government assume this role and protect 

them. When citizens dare find the courage to speak 

up and criticize public officeholders, the mind numbing complexity and shifting standards of the Commission are certain enough to silence most. In 

acquiescing to the trampling of political debate, this 

Court has permitted sedition of the worst variety – 

the certain elimination of our greatest bulwark of 

liberty, the freedom of speech. 
11 

II. This Court Cannot Design a Workable 

Standard to Weed Out “Impure” Speech 

Hoping to achieve utopian speech designs, this 

Court pushes forward to fashion the unattainable. 

With implausible hope, this Court has reasoned that 

fair and balanced speech standards might help 

prevent corruption, or its appearance, while letting 

necessary speech thrive. See, e.g., Buckley v. Valeo, 

424 U.S. 1, 80-81 (1976) (express advocacy standard); 

FEC v. Massachusetts Citizens for Life, 479 U.S. 238 

(1986) (three part test to allow some non-profits to 

fund express advocacy); Austin v. Michigan State 

Chamber of Commerce, 494 U.S. 652 (1990) (upholding speech restrictions based on nebulous qualifications like whether the speaker’s message proved too 

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

(indistinctly describing a new class of banned speech, 

the so-called “functional equivalent” of express advocacy, while eschewing the development of objective 

standards); FEC v. Wisconsin Right to Life, Inc., 127 

S. Ct. 2652 (2007) (expounding the functional equivalent formula, with no resulting consensus among 

election law experts about that standard). This Court 

stretched the implausible to the absurd by reasoning 

that agencies would reasonably apply its speech 

standards. These views are mistaken. See Notice of 

Proposed Rulemaking, Electioneering Communications, 72 Fed. Reg. 50261 (FEC’s proposal for 

interpreting Wisconsin Right to Life by including forty 

banned speech examples including Rocky the 

prizefighter); Explanation and Justification for 
12 

Electioneering Communications, 72 Fed. Reg. 72899 

(describing an elaborate two-prong, eleven-factor electioneering communications standard while honestly 

claiming to adhere to Chief Justice Roberts’ notice 

that the Commission could not rely on an “openended rough-and-tumble” of factors). 

From the sun-scorched deserts of Arizona to the 

majestic peaks of Wyoming, citizens respecting 

dissent ask this Court to realize that which is already 

known: Enough is enough. Enough believing that 

impure, unconventional, and successful speech must 

be rationed. Austin, 494 U.S. 652. Enough inventing 

speech standards that do anything less than provide 

absolute protection to speakers. McConnell, 540 U.S. 

93. For too long, this Court has stayed aboard the 

wrong jurisprudential train in belief that the pursuit 

of cleansed political speech might be realized. One 

of history’s most eloquent dissenters, Dietrich 

Bonhoeffer, offers this Court a sound remedy to its 

confusion, “If you board the wrong train, it is no use 

running along the corridor in the other direction.” 

Renate Wind, DIETRICH BONHOEFFER, A SPOKE IN THE

WHEEL (1992). 

 Reformers and creative bureaucrats do not have 

difficulty establishing veritable parades of horribles 

to overrun civil liberties. This Court has struggled 

with these justifications and often granted them 

priority over individual liberties. “The great danger of 

the judiciary balancing process is that in times of 

emergency and stress it gives Government the power 

to do what it thinks necessary to protect itself, 
13 

regardless of the rights of individuals.” Jeffrey D. 

Hockett, NEW DEAL JUSTICE: THE CONSTITUTIONAL

JURISPRUDENCE OF HUGO L. BLACK, FELIX FRANKFURTER, AND ROBERT H. JACKSON (1996). This nation’s 

history illustrates that laws established in times of 

dire emergency are all too common and all too 

oppressive. The Congress and this Court’s response to 

most of these situations has been a litany in getting 

them dead wrong. See, e.g., Mutual Film Corporation 

v. Industrial Comm’n of Ohio, 236 U.S. 230 (1915) 

(upholding Ohio’s Board of Censors that approved 

films to be shown in the state); the Espionage Act of 

1917 (imprisoning the poet E.E. Cummings for 

stating that he lacked a hatred for Germans); the 

Montana Sedition Act of 1918 (punishing more than 

forty citizens up to twenty years in prison for 

criticizing war efforts); the Sedition Act of 1918 

(incarcerating one businessman because he intimated 

President Wilson was “yellow”); the Palmer Raids 

(arresting thousands of members of the Industrial 

Workers Union due to their unconventional views); 

the Smith Act of 1940 (imprisoning members of the 

Communist Party for conspiring to teach the 

principles of Marxism-Leninism, which this Court 

upheld in Dennis v. United States, 341 U.S. 494 

(1951)); the Universal Military Training and Service 

Act of 1948 (prohibiting the destruction of draft cards, 

upheld by this Court in U.S. v. O’Brien, 391 U.S. 367 

(1968)); Roth v. U.S., 354 U.S. 476 (1957) (where this 

Court sustained bans on obscene speech where the 

communication appealed to a person’s prurient 

interest); Buckley, 424 U.S. 1 (upholding limits on 
14 

speech due to fears of corruption, or its “appearance”); 

Austin, 494 U.S. 652 (expanding the notion of corruption to place limits on the “corrosive and distorting 

effects” of too effective speech). Viva the spirit of 

unbridled dissent. 

 Given the historical record of the powerful few 

seeking to silence unconventional messages, and the 

repeat failure of any government agency to administer speech standards in an equitable manner, this 

Court cannot justify its continued reliance on slippery 

speech standards left to the whimsical discretion of 

bureaucrats. “Subject opinion to coercion: whom will 

you make your inquisitors? Fallible men, governed by 

bad passions, by private as well as public reasons.” 

Samuel Eagle Forman, THE LIFE AND WRITINGS OF

THOMAS JEFFERSON (1998). 

 The Framers of the Constitution boldly risked 

the embrace of wide-open public debate, understanding the risk “that free speech might be the friend of 

change and revolution. But they also knew that it is 

always the deadliest enemy of tyranny.” Justice 

Black, NEW DEAL JUSTICE. Today, this Court has the 

opportunity to regain its sacred trust in reclaiming 

the protection of the First Amendment while offering 

citizens the surest protection against the stifling of 

dissent and the rise of despotism. 
15 

III. A Return to First Principles: Favoring 

Unbridled Dissent 

Since this Court has refused to recognize that the 

First Amendment completely withdraws from government all power to ban, regulate, or curb the free flow 

of ideas, its development of shifting, undetermined, 

and peculiar speech tests prove impracticable. As this 

Court tinkers with the evolution of its speech tests, 

citizens hoping to exercise their free speech right find 

uncertainty and guesswork as the norm in deciding 

whether they may speak without state reprise. 

 In today’s political climate, citizens hoping to 

band together and speak with feverish passion about 

government injustices must discern the point at 

which their speech crosses the line where it becomes 

impermissible. This sort of permissibility inquiry 

derives its legitimacy from this Court’s longstanding 

speech balancing tests, asking such page-turners as 

whether a communication could effect an election or 

unfairly chastise the character, qualifications, or 

fitness of a candidate for office. These standards 

cloud hopeful speakers with uncertainty, guaranteeing confusion and hedging and trimming by speakers. 

 This Court’s experimentation with balancing tests 

for free speech rights remains deeply flawed. Clear 

guidance must be given both to citizens and government agencies that protracted and intricate speech 

standards will not survive constitutional scrutiny. 

With the FEC’s implementation of a two-prong, 

 
16 

eleven-factor speech standard for determining “permissible” electioneering communications in response 

to Wisconsin Right to Life, this Court must give 

serious pause to the feasibility of its political speech 

jurisprudence. 

 When “governing decisions are unworkable or are 

badly reasoned, this Court has never felt constrained 

to follow precedent.” Payne v. Tennessee, 501 U.S. 808, 

827 (1991) (quoting Smith v. Allwright, 321 U.S. 649 

(1944)). This Court has long since abandoned absolute protection of political speech in favor of shifting 

standards, hoping that the friendly regulators at the 

FEC might honorably apply them. Rather than hope 

upon hope that the next best standard might 

somehow protect speech, the time has arrived for this 

Court to overrule Austin and McConnell; thereby 

returning clarity to First Amendment jurisprudence 

and establishing a preference in favor of liberty. 

 The First Amendment offers the broadest protection “to assure (the) unfettered interchange of 

ideas for the bringing about of political and social 

changes desired by the people.” Roth v. United States, 

354 U.S. 476, 484 (1957). Changes by the people, and 

how the people elect to communicate those changes, 

are to be respected by this Court by stringent 

application of the First Amendment, not decades of 

nuanced skullduggery and “best speech practices” by 

speech bureaucrats. 

 With the advent of Buckley’s review of the FECA, 

this Court jumped headfirst into the business of 
17 

crafting exceptions to protection of political speech. 

But it did so with limited departure and with hopes 

that its express advocacy formulation would be easily 

applied, protective of speech. That amounted to the 

express advocacy speech standard, permitting limited 

regulation of communications that in express terms 

advocated the election or defeat of a clearly identified 

candidate. The Buckley formulation rested on a 

simple rule: “distinction between discussion of issues 

and candidates and advocacy of election or defeat of 

candidates may often dissolve in practical application.” Id. at 42. While Buckley involved a strained 

reading of the First Amendment, citizens could 

understand the boundaries and be able to produce a 

great deal of speech without running afoul of the law. 

 The Buckley Court respected the fact that speech 

critical of candidates and communications caustic 

during the time of an election remained protected 

because the First Amendment has its “fullest and 

most urgent application” during these shortened, 

crucial time periods. Monitor Patriot Co. v. Roy, 401 

U.S. 265, 272 (1971). Where the First Amendment 

was once thought to vigorously guard the sanctity of 

political speech, erosion of that protection has 

steadily occurred since this Court’s pronouncement of 

exceptions post-Buckley, 424 U.S. 1. 

 It is important to note that while the Buckley

Court hoped its objective and narrow express 

advocacy standard would prove easy to apply and 

protective of speech, the FEC pushed the test to its 

most absurd lengths. In doing so, the Commission 
18 

found itself on the losing end of many free speech 

challenges. See FEC v. CLITRIM, 616 F.2d 45 (2d Cir. 

1980) (Kaufman, Chief Judge, concurring) (“This 

danger is especially acute when an official agency of 

government has been created to scrutinize the 

content of political expression, for such bureaucracies 

feed upon speech and almost ineluctably come to view 

unrestrained expression as a potential ‘evil’ to be 

tamed, muzzled, or sterilized. . . . The possible inevitability of this institutional tendency, however, 

renders this abuse of power no less disturbing to 

those who cherish the First Amendment and the 

unfettered political process it guarantees. Buckley 

imposed upon the FEC the weighty, if not impossible, 

obligation to exercise its powers in a manner 

harmonious with a system of free expression. Our 

decision today should stand as an admonition to the 

Commission that, at least in this case, it has failed 

abysmally to meet this awesome responsibility”). As 

time progressed, regulators learned to be creative in 

extending the express advocacy standard to capture 

protected speech outside of its boundaries and to 

muzzle citizens’ speech. Beyond Buckley, as detailed 

earlier, came Austin, McConnell, and other harms to 

the otherwise robust protection deserved by the First 

Amendment. 494 U.S. 652; 540 U.S. 230. 

 This Court asked whether Austin and McConnell

should be overturned and whether that would be 

necessary for the proper disposition of this matter. 

The answer to the Court’s inquiry is in the 

affirmative. It is apparent that eliminating the 
19 

speech-protective standards of Buckley gave speechcensors free rein to search for reasons to ban 

disfavored speech. These included examinations of 

the intent and effect of speech, Buckley, 424 U.S. at 

43 (speech intent standards blanket with “uncertainty whatever may be said,” and “offer[ ] no 

security for free discussion”), its proximity to an 

election, Wisconsin Right to Life (timing is irrelevant 

for purposes of regulation), or its “real” hidden 

message, id. (rejecting reliance on election expert’s 

interpretation of speech). These standards put great 

confidence in the ability of the regulating class to 

effectively cleanse the political process of odious 

speech. But the First Amendment demands humble 

restraint, not the prideful exercise of wanton 

authority. This truth is recognized in Buckley – 

citizens, not roving clean-election-speech squads, are 

best equipped to decide the merits of public arguments presented. Only the humble restraint required 

by the open sphere of free expression will preserve 

liberty. And to surrender this right would be to 

surrender the foundation of our sovereignty. We must 

exercise with diligence our right of free expression 

lest we otherwise offer government “a guardianship of 

[our] public mind.” Thomas v. Collins, 323 U.S. 516, 

530 (1945) (Jackson, J., concurring). 

--------------------------------- ♦ ---------------------------------
20 

CONCLUSION 

For the foregoing reasons, the decision of the 

United States District Court for the District of 

Columbia should be reversed and clarification given 

to the speech-protective appeal to vote test described 

in Wisconsin Right to Life. 

Respectfully submitted, 

BENJAMIN BARR

 Counsel of Record 

GOVERNMENT WATCH, P.C. 

619 Pickford Place N.E. 

Washington, DC 20002 

(240) 863-8280