No. 08-205 

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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 CALIFORNIA BROADCASTERS 

ASSOCIATION, ILLINOIS BROADCASTERS ASSOCIATION, 

LOUISIANA ASSOCIATION OF BROADCASTERS, MAINE 

ASSOCIATION OF BROADCASTERS, MICHIGAN ASSOCIATION OF 

BROADCASTERS, MISSOURI BROADCASTERS ASSOCIATION, 

MINNESOTA BROADCASTERS ASSOCIATION, NEBRASKA 

BROADCASTERS ASSOCIATION, NEW YORK STATE 

BROADCASTERS ASSOCIATION, AND TENNESSEE ASSOCIATION 

OF BROADCASTERS IN SUPPORT OF APPELLANT

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

Lawrence H. Norton 

Counsel of Record 

James A. Kahl 

Gregg P. Skall 

WOMBLE CARLYLE 

 SANDRIDGE & RICE, PLLC 

1401 I Street, N.W., Seventh Floor 

Washington, D.C. 20005 

(202) 857-4429 

Counsel for Amici Curiae
i

TABLE OF CONTENTS 

Page 

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

INTERESTS OF AMICI CURIAE .............................1 

SUMMARY OF ARGUMENT ....................................1 

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

A. BCRA Violates The First 

Amendment By Restricting The 

Content Of Political Speech 

Communicated Through 

Broadcast Media....................................3 

B. WRTL’s As-Applied Standard 

Impermissibly Chills Political 

Speech..................................................13 

CONCLUSION .........................................................18 
ii

TABLE OF AUTHORITIES 

Page(s) 

CASES 

Ashcroft v. ACLU, 

 535 U.S. 564 (2002)..........................................6 

Associated Press v. United States, 

 326 U.S. 1 (1945)..............................................6 

Austin v. Michigan Chamber of Commerce, 

 494 U.S. 652 (1990)......................................4, 5 

Baggett v. Bullitt, 

 377 U.S. 360 (1964)........................................17 

Buckley v. Valeo, 

 424 U.S. 1 (1976).............................. 4, 5, 10, 17 

CBS v. Democratic Nat’l Comm., 

 412 U.S. 94 (1973)..........................................10 

CBS v. FCC, 

 453 U.S. 367 (1981)..........................................9 

City of Ladue v. Gilleo, 

 512 U.S. 43 (1994)............................................5 

FCC v. Fox Television Stations, Inc., 

 129 S. Ct. 1800 (2009)....................................10 

FCC v. League of Women Voters, 

 468 U.S. 364 (1984)........................................10 
iii

FEC v. Wisconsin Right to Life, 

 551 U.S. 449 (2007)................................ passim

First National Bank of Boston v. Bellotti, 

 435 U.S. 765 (1978)................................ 3, 8, 11 

Florida Star v. B.J.F., 

 491 U.S. 524 (1989)........................................13 

McConnell v. FEC, 

 251 F. Supp. 2d 176, 

 aff’d in part and rev’d in part, 

 540 U.S. 93 (2003).................................. passim

Miami Herald Publ’g Co. v. Tornillo, 

 418 U.S. 241 (1974)......................................3, 4 

N.Y. Times Co. v. Sullivan, 

 376 U.S. 254 (1964)......................................3, 4 

North Carolina Right to Life, Inc. v. Leake, 

 525 F.3d 274 (4th Cir. 2008)............................8 

Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n of Cal., 

 475 U.S. 1 (1986)..............................................3 

Red Lion Broadcasting Co. v. FCC, 

 395 U.S. 367 (1969)....................................9, 10 

Reno v. ACLU, 

 521 U.S. 844 (1997)..........................................6 

Republican Party of Minnesota v. White, 

 536 U.S. 765 (2002)........................................12 
iv

Schneider v. State (Town of Irvington), 

 308 U.S. 147 (1939)..........................................7 

Smith v. Goguen, 

 415 U.S. 566 (1974)........................................17 

Telecommunications Research and 

Action Center v. FCC, 

 801 F.2d 501 (D.C. Cir. 1986)........................10 

Thomas v. Collins, 

 323 U.S. 516 (1945)........................................17 

Turner Broad. Sys., Inc. v. FCC, 

 512 U.S. 622 (1994)....................................5, 13 

Virginia v. Hicks, 

 539 U.S. 113 (2003)........................................17 

CONSTITUTIONAL PROVISION 

U.S. CONST. amend. I ....................................... passim

STATUTES 

2 U.S.C. § 434(f)(3)......................................................3 

REGULATIONS 

11 C.F.R. § 100.29(b)(2) ..............................................4 

11 C.F.R. § 114.15(b) ................................................15 

11 C.F.R. § 114.15(c).................................................16 
v

11 C.F.R. § 114.15(c)(2)(i).........................................16 

11 C.F.R. § 114.15(c)(2)(iii).......................................16 

OTHER AUTHORITIES 

44 Cong. Rec. S979 (Feb. 25, 1998)............................9 

147 Cong. Rec. S2457 (March 19, 2001) ....................7 

147 Cong. Rec. S2611 (March 21, 2001) ....................9 

148 Cong. Rec. S2135 (March 20, 2002) ....................7 

Aaron Smith, The Internet’s Role in 

Campaign 2008, Pew Internet and 

Am. Life Project, April 15, 2009, 

http://www.pewinternet.org/Reports/2009/6-- 

The-Internets-Role-in-Campaign-2008.aspx .......9, 12 

Adam Nagourney, The ’08 Campaign: 

Sea Change for Politics as We Know It, 

N.Y. Times, Nov. 4, 2008..........................................12 

Explanation and Justification to 

Electioneering Communications Rules, 

72 Fed. Reg. 72899, 72905 (December 26, 2007).....16 

Posting of Kate Linthicum to 

Los Angeles Times Top of the Ticket, 

http://latimesblogs.latimes.com/washington/ 

2008/08/mccain-obama-ho.html (Aug. 24, 2008) .....14
1

INTERESTS OF AMICI CURIAE1

Amici Curiae are the California Broadcasters 

Association, Illinois Broadcasters Association, 

Louisiana Association of Broadcasters, Maine 

Association of Broadcasters, Michigan Association of 

Broadcasters, Missouri Broadcasters Association, 

Minnesota Broadcasters Association, Nebraska 

Broadcasters Association, New York State 

Broadcasters Association, and Tennessee Association 

of Broadcasters (collectively the “Named 

Associations”). Each of the Named Associations is, in 

turn, a voluntary association of broadcasters who are 

licensees of radio and television stations serving 

communities within their respective states. 

Each of the Named Associations represents its 

members in matters relating to the broadcasting 

industry. Each has a keen interest in ensuring that 

the First Amendment protects access to all forms of 

media for the exercise of political speech. 

SUMMARY OF ARGUMENT 

The Court has long rejected attempts by the 

government to channel political speech to favored 

forms of media while foreclosing access to others. Yet 

Section 203 of the Bipartisan Campaign Reform Act 

(“BCRA”) does exactly this by prohibiting 

 

1 The parties have consented to the filing of this brief. Counsel 

of record for all parties received notice at least 10 days prior to 

the due date of the amici curiae’s intention to file this brief. No 

counsel for a party authored this brief in whole or in part, and 

no counsel or party made a monetary contribution intended to 

fund the preparation or submission of this brief. 
2

corporations and unions from using broadcast media 

for communications that merely refer to a federal 

candidate and that are disseminated in defined 

periods before an election. 

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

in sustaining Section 203 against a facial challenge. 

A speaker’s choice of media is intertwined with the 

message itself. Media choice determines the sensory 

impact of the message, the audience the message is 

likely to reach and the interest it generates. The 

reason that McConnell upheld Section 203 – that 

broadcast advertising by corporate or labor interests 

may excessively skew public opinion and diminish 

the impact of other voices – is no constitutional basis 

for curbing that speech. Simply put, it is not for the 

government to elevate the rights of some speakers 

over others, differentiate between acceptable and 

unacceptable media, and deprive the public of the 

right to hear competing political views and 

determine which views are worthy of adherence. 

Even if these objectives were not 

constitutionally fatal, Section 203 is not narrowly 

tailored, as is constitutionally required. It bars 

speech that poses no threat to the law’s ostensible 

objectives, while permitting the very same speech 

when it is communicated through favored forms of 

media or paid for by favored speakers. Finally, the 

as-applied test established by the Court in FEC v. 

Wisconsin Right to Life, 551 U.S. 449 (2007) (WRTL) 

chills speech by requiring speakers to make complex 

and subtle judgments that can expose them to 

criminal prosecution. 
3

For these reasons, the Court should overrule 

the portion of McConnell that upheld the facial 

validity of Section 203. 

ARGUMENT 

A. BCRA Violates The First 

Amendment By Restricting The 

Content Of Political Speech 

Communicated Through Broadcast 

Media. 

Section 203 of BCRA makes it a federal crime 

for corporations or unions to fund “electioneering 

communications,” defined as broadcast, cable or 

satellite communications aired 60 days before a 

general election or 30 days before a primary election 

that refer to a clearly identified federal officeholder 

or candidate. 2 U.S.C. § 434(f)(3) (2007). In so doing, 

BCRA disenfranchises certain speakers from 

expressing political opinion in a manner of their own 

choosing.2 

 

2 The Court has never singled out corporations for lesser First 

Amendment protection. First National Bank of Boston v. 

Bellotti, 435 U.S. 765, 776 n.14 (1978) (“In cases where 

corporate speech has been denied the shelter of the First 

Amendment, there is no suggestion that the reason was 

because a corporation rather than an individual or association 

was involved.”). In fact, the Court has applied strict scrutiny in 

various contexts involving the First Amendment rights of 

corporations. See, e.g., Pac. Gas & Elec. Co. v. Pub. Utils. 

Comm’n of Cal., 475 U.S. 1 (1986) (compelled speech); Miami 

Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 260 (1974); (“right 

of reply”); N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964) 

(defamation). 
4

“[T]he concept that government may restrict 

the speech of some elements of our society in order to 

enhance the relative voice of others is wholly foreign 

to the First Amendment. . . . ” Buckley v. Valeo, 424 

U.S. 1, 48-49 (1976). Moreover, Section 203 is a 

content-based restriction, barring access to the 

airwaves if an officeholder or candidate is “clearly 

identified” by including the person’s name, 

nickname, photograph, or other likeness, or where 

the identity of the candidate is otherwise apparent 

through an unambiguous reference. 11 C.F.R. § 

100.29(b)(2) (2005). 

“Content-based restrictions are the essence of 

censorial power.” Austin v. Michigan Chamber of 

Commerce, 494 U.S. 652, 699 (1990) (Kennedy, J., 

dissenting). The First Amendment countenances few 

exceptions to the right of speakers to decide which 

public policy views are worthy of expression. The 

mere fact that political communications mention 

candidates or take the form of paid programming 

cannot serve as the basis for censorship. N.Y. Times 

Co. v. Sullivan, 376 U.S. 254, 266 (1964).3 Indeed, 

“the most exacting scrutiny [applies] to regulations 

that suppress, disadvantage, or impose differential 

 

3 Section 203 also intrudes into the editorial function of 

broadcasters by determining when political opinion is 

acceptable and when it must be excluded. Just as the 

government has no authority to compel a newspaper to publish 

editorial views that the newspaper would not otherwise put 

into print, it cannot dictate to the media what political views 

must be left out. “Any other accommodation – any other system 

– would make the government the censor of what the people 

may read and know.” Tornillo, 418 U.S. at 260. 
5

burdens upon speech because of its content.” Turner 

Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642 (1994). 

McConnell held that the content-based 

restriction in Section 203 of BCRA is a 

constitutionally-permissible effort to “stanch [the] 

flow of [soft] money” from corporations and unions 

because of “the corrosive and distorting effects of 

immense aggregations of wealth that are 

accumulated with the help of the corporate form and 

that have little or no correlation to the public’s 

support for the corporation’s political ideas.” 

McConnell, 540 U.S. at 205-207 (quoting Austin, 494 

U.S. at 660). The Court characterized Section 203 as 

an incremental approach, justified by the record, 

noting that “reform may take one step at a time, 

addressing itself to the phase of the problem which 

seems most acute to the legislative mind.” 

McConnell, 540 U.S. at 207 (quoting Buckley, 424 

U.S. at 105). 

In upholding a scheme that forcibly diverts 

political speech to certain kinds of media, McConnell

departs from a long history of reserving such 

decisions to the speaker. Prior to McConnell, this 

Court time and again “voiced particular concern with 

laws that foreclose an entire medium of expression.” 

City of Ladue v. Gilleo, 512 U.S. 43, 55 (1994). 

“Although prohibitions foreclosing entire media may 

be completely free of content or viewpoint 

discrimination, the danger they pose to the freedom 

of speech is readily apparent – by eliminating a 

common means of speaking, such measures can 

suppress too much speech.” Id. The First 
6

“Amendment rests on the assumption that the 

widest possible dissemination of information from 

diverse and antagonistic sources is essential to the 

welfare of the public, that a free press is a condition 

of a free society.” Associated Press v. United States, 

326 U.S. 1, 20 (1945). 

It is “no answer to say that the speaker should 

‘take the simple step of utilizing a [different] 

medium.’” Ashcroft v. ACLU, 535 U.S. 564, 596 

(2002) (Kennedy, J., concurring). In Reno v. ACLU, 

521 U.S. 844, 879 (1997), the Court concluded that 

this was a constitutionally-unacceptable option: 

The Government first contends 

that, even though the [Communications 

Decency Act of 1996] effectively censors 

discourse on many of the Internet’s 

modalities – such as chat groups, 

newsgroups, and mail exploders – it is 

nonetheless constitutional because it 

provides a ‘reasonable opportunity’ for 

speakers to engage in the restricted 

speech on the World Wide Web. . . . The 

Government’s position is equivalent to 

arguing that a statute could ban 

leaflets on certain subjects as long as 

individuals are free to publish books. In 

invalidating a number of laws that 

banned leafleting on the streets 

regardless of their content – we 

explained that ‘one is not to have the 

exercise of his liberty of expression in 

appropriate places abridged on the plea 

that it may be exercised in some other 
7

place.’ Schneider v. State (Town of 

Irvington), 308 U.S. 147, 163 (1939). 

Moreover, the choice of media is an essential 

element of one’s speech. Television allows a speaker 

to deploy words, moving images and music to make a 

connection with a broad audience. As Chief Justice 

Roberts observed, “Even assuming for the sake of 

argument that the possibility of using a different 

medium of communication has relevance in 

determining the permissibility of a limitation on 

speech, newspaper ads and websites are not 

reasonable alternatives to broadcast speech in terms 

of impact and effectiveness.” WRTL, 551 U.S. at 477 

n.9. 

 In fact, it is the very effectiveness of broadcast 

speech – evidenced by the so-called “torrent of 

television election-related ads,” McConnell, 540 U.S. 

at 207 – that led Congress to restrict it. See, e.g., 148 

Cong. Rec. S2135 (March 20, 2002) (statement of 

Sen. Snowe) (“What we are talking about are 

broadcast advertisements that are influencing our 

Federal elections and, in virtually every instance, 

are designed to influence our Federal elections.”); 

147 Cong. Rec. S2457 (March 19, 2001) (statement of 

Sen. McCain) (“Guess what. The ads [that survey 

respondents] viewed to be the most influential of all 

the ads run were the ones that were run by interest 

groups that mentioned a candidate, that are 

supposedly issue ads, even more than the ads that 

were run by the candidates themselves.”). 
8

The government has no business making 

distinctions on this basis. “Nothing could be further 

removed from the spirit of the First Amendment 

than labeling speech corruptive merely because it is 

effective.” North Carolina Right to Life, Inc. v. Leake, 

525 F.3d 274, 295 (4th Cir. 2008). As the Court 

declared in Bellotti: 

To be sure, corporate advertising 

may influence the outcome of the vote; 

this would be its purpose. But the fact 

that advocacy may persuade the 

electorate is hardly a reason to 

suppress it. . . . Moreover, the people in 

our democracy are entrusted with the 

responsibility for judging and 

evaluating the relative merits of 

conflicting arguments. 

435 U.S. 765, 790 (1998). See also McConnell, 540 

U.S. at 284 (Thomas, J., concurring in part and 

dissenting in part) (“One would think that The New 

York Times fervently hopes that its endorsement of 

Presidential candidates will actually influence 

people. What is to stop a future Congress from 

determining that the press is ‘too influential,’ and 

that the ‘appearance of corruption’ is significant 

when media organizations endorse candidates or run 

‘slanted’ or ‘biased’ news stories in favor of 

candidates or parties?”). 

 Indeed, the effect of singling out broadcast 

media is to restrict the medium that Americans still 

rely on most to inform their decision-making on 

political issues. An April 2009 study by the Pew 
9

Internet and American Life Project found that 

television remains the dominant medium for 

political news: nearly 80% of those surveyed report 

getting most of their campaign news from television. 

Aaron Smith, The Internet’s Role in Campaign 2008, 

Pew Internet and Am. Life Project, April 15, 2009, 

http://www.pewinternet.org/Reports/2009/6--The-Internets-Role-in-Campaign-2008.aspx.

No doubt aware that Section 203 raised grave 

constitutional concerns, some Members of Congress 

argued that stricter regulation of broadcast media 

could be justified based on the limited availability of 

television and radio frequencies.4 This rationale was 

first applied by the Court in Red Lion Broadcasting 

Co. v. FCC, 395 U.S. 367, 389 (1969), to promote a 

diversity of voices, “which would otherwise, by 

necessity, be barred from the airwaves.” See also 

CBS v. FCC, 453 U.S. 367, 396 (1981) (law requiring 

broadcasters to give “reasonable access” to federal 

candidates justified as means for increasing 

 

4 See, e.g., 147 Cong. Rec. S2611 (March 21, 2001) (statement of 

Sen. Torricelli) (“Why indeed should broadcasters not bear 

some of the responsibilities? Do they not have public licenses? 

Do they not have responsibility to air the news fairly, cover 

campaigns, to inform the public? . . . The spectrum has limited 

the number of television stations; hence, the FEC’s 

requirements and Federal law.”); 44 Cong. Rec. S979 (Feb. 25, 

1998) (statement of Sen. Levin) (“Now, why radio and 

television? The answer is that the Supreme Court itself has 

held that, due to the fact that these media, radio and television, 

are regulated, are licensed, and that the spectrum is limited, 

you can regulate these media in ways in which you cannot 

regulate newspapers or the printed word. . . . ”). 
10

“freedom of expression by enhancing the ability of . . 

. the public to receive” information).5 

Red Lion is not authority for suppressing

speech. “It is certainly true that broadcast 

frequencies are scarce but it is unclear why that fact 

justifies content regulation of broadcasting in a way 

that would be intolerable if applied to the editorial 

process of the print media.” Telecommunications 

Research and Action Center v. FCC, 801 F.2d 501, 

508 (D.C. Cir. 1986).6 

Even assuming for the sake of argument the 

legitimacy of Congress’s objectives in enacting 

Section 203, regulation must be narrowly tailored to 

satisfy a compelling government interest. Buckley, 

424 U.S. at 25, 64. McConnell concluded in error 

that Section 203 should be sustained as an 

“incremental” reform. Such a conclusion is belied by 

the gap between the impact of the law and its 

ostensible objectives; it is grossly over- and underinclusive. 

 

 

5 We take no position here on the continued viability of the 

scarcity doctrine in other contexts. We note simply that it has 

been called into question. FCC v. Fox Television Stations, Inc., 

129 S. Ct. 1800 (2009) (Thomas, J. concurring); FCC v. League 

of Women Voters, 468 U.S. 364, 376 n.11 (1984) (“The 

prevailing rationale for broadcast regulation based on spectrum 

scarcity has come under increasing criticism in recent years.”); 

CBS v. Democratic Nat’l Comm., 412 U.S. 94, 158 n.8 (1973) 

(“Scarcity may soon be a constraint of the past, thus obviating 

the concerns expressed in Red Lion.”). 

6 This rationale is equally unavailing because BCRA’s 

prohibitory ambit also applies to cable and satellite – media 

that this Court has never subjected to the scarcity rationale. 
11

On the one hand, Section 203 is crafted so 

broadly that it applies to all for-profit companies, 

regardless of whether they are large or small, public 

or private.7 Section 203 also applies to non-profit 

corporations, such as incorporated charities and 

social welfare organizations – organizations that 

manifestly do not possess “corrosive and immense 

wealth,” even were they legitimate categories upon 

which to base prior restraints on First Amendment 

speech. Moreover, McConnell recognized that some 

percentage of ads swept up in the electioneering 

communications ban have no electoral purpose at all. 

540 U.S. at 206. While some messages from 

corporations and unions will surely not be 

“corrosive” in any sense of the word, the law provides 

no way to distinguish such ads from all others, nor 

does it provide them with any exemption. 

At the same time, by targeting only some 

forms of media, BCRA ensures that the prescription 

cannot cure the perceived ill. BCRA allows 

corporations and unions to purchase full-page ads in 

major newspapers, but forbids the same speakers 

from spending a tiny fraction of that cost for a 

television or radio advertisement in a small 

suburban market. Likewise, the same message that 

is forbidden on radio and television may be 

disseminated through electronic media, such as 

iPods and other MP3 players, the Internet and 

 

7 As the Court observed in Bellotti, “Corporations, like 

individuals or groups, are not homogeneous. They range from 

great multinational enterprises whose stock is publicly held 

and traded to medium-size public companies and to those that 

are closely held and controlled by an individual or family.” 435 

U.S. at 784 n.22. 
12

cellphones.8 This sort of arbitrary line-drawing is 

both discriminatory and ineffective. “[N]ot only will 

the same ads be seen and heard [via non-broadcast 

media], they will still be aired on the television and 

the radio; the only difference is that they will be 

sponsored by a smaller (and less diverse) class of 

privileged speakers. . . . [including] wealthy 

individuals, PACs or unincorporated associations.” 

McConnell, 251 F. Supp. 2d 176, 371 (D.D.C. 2003) 

(Henderson, J., concurring in part and dissenting in 

part). 

Narrow tailoring this is not. It is no more than 

a swipe at political speech with a poorly-designed 

tool. Predictably, the results are not only uneven, 

they are also constitutionally unsupportable. Such 

arbitrary line-drawing puts in doubt the rationale 

for the broadcast ban in the first place. See

Republican Party of Minnesota v. White, 536 U.S. 

765, 783-800 (2002) (prohibiting judicial candidate 

from announcing views on political issues – but “only 

at certain times and in certain forms” – failed strict 

 

8 The 2008 Presidential campaign was a “seminal, 

transformative race” where the Internet and social media were 

harnessed to reach voters who have become accustomed to 

using new forms of media. “The platforms included YouTube, 

which did not exist in 2004, and the cell phone text messages 

that the campaign was sending out to supporters on [the day 

before the election] to remind them to vote.” Adam Nagourney, 

The ’08 Campaign: Sea Change for Politics as We Know It, N.Y. 

Times, Nov. 4, 2008 at A1. Likewise, the Pew study of the 2008 

election found that “fully 30% of those who post political 

content online are under the age of 25, and more than half are 

younger than 35. Smith, supra. Political content creation is also 

tightly linked with the use of social media platforms such as 

online social networks, video sharing sites, blogs and status 

update services such as Twitter.” Smith, supra. 
13

scrutiny because it was “so woefully underinclusive 

as to render belief in [its stated] purpose a challenge 

to the credulous”); Florida Star v. B.J.F., 491 U.S. 

524, 540 (1989) (striking down law that prohibited 

publication of names of rape victims by “instruments 

of mass communication” because law did not prohibit 

dissemination by other means). 

At the heart of the First Amendment is the 

principle that each speaker has the right to choose 

the ideas deserving of expression and each listener 

the right to choose those ideas deserving of 

adherence. Our political system and cultural life rest 

on this foundation. Turner, 512 U.S. at 641. Section 

203 of BCRA contravenes this essential right by 

criminalizing political speech based on the content of 

the message, the identity of the speaker and the 

choice of media to communicate the message. 

Additionally, the law sweeps in considerable speech 

that poses no threat to the law’s ostensible 

objectives, while permitting the very same speech 

when it is communicated through favored forms of 

media or paid for by favored speakers. Accordingly, 

the Court should overrule that portion of McConnell

upholding Section 203 of BCRA against a facial 

challenge. 

B. WRTL’s As-Applied Standard 

Impermissibly Chills Political 

Speech. 

In WRTL, the Court announced an as-applied 

test, which allows corporations and unions to 

communicate over the airwaves about issues, as 

distinguished from elections. 551 U.S. at 452. Under 
14

this test, the electioneering communications ban 

applies if speech is “susceptible of no reasonable 

interpretation other than as an appeal to vote for or 

against a specific candidate.” Id. at 451. Justice Alito 

cautioned that if the implementation of this test 

impermissibly chills political speech, the Court’s 

ruling in McConnell on the facial challenge to 

Section 203 may need to be reconsidered. Id. at 482. 

Any doubts about the potential chilling effect 

of the Court’s as-applied test were confirmed by the 

sixteen pages of implementing rules and explanation 

published in the Federal Register by the Federal 

Election Commission. The regulations are complex 

and subjective, requiring subtle judgments that may 

have to be made in the course of a 24-hour-a-day 

news cycle when “rapid response” is increasingly the 

norm. See, e.g., Posting of Kate Linthicum to Los 

Angeles Times Top of the Ticket, http://latimesblogs. 

latimes.com/washington/2008/08/mccain-obama-ho.h 

tml (Aug. 24, 2008). More significantly, making the 

wrong decision can trigger a civil or criminal 

investigation and expose the speaker to fines and 

jail. Reason dictates that under these circumstances, 

speakers who wish to engage in political discourse 

will shy away from anything close to the line or 

simply choose a type of media that is not subject to 

the Section 203 ban. Furthermore, broadcasters are 

left unable to offer effective guidance to prospective 

speakers in order to prevent their media from being 

used in a manner that the law treats as a federal 

crime. 

The FEC rules begin by creating a “safe 

harbor” for communications that (1) do not mention 
15

any election, candidacy, political party, or voting by 

the public; (2) do not take a position on any 

candidate’s character or qualifications; and (3) focus 

on an issue and urge the candidate to take a position 

on it or urge the public to contact the candidate 

about that issue. 11 C.F.R. § 114.15(b) (2007). The 

creation of a safe harbor is a sensible approach to 

protect core First Amendment speech, but this 

harbor is not safe at all; it is rife with interpretive 

issues, and far different from the ample shelter 

envisioned by the Court. 

For example, how does a speaker determine 

when an ad does not “take a position on the 

candidate’s qualifications for office?” The challenge 

this presents to the speaker was foreshadowed by 

the Court in WRTL, where the justices themselves 

disagreed about whether an ad that McConnell

regarded as the paradigmatic electioneering 

communication would be protected under the asapplied test. Notably, the dissent in WRTL 

concluded that the as-applied test would permit 

corporate or labor funding of an ad that “condemned 

Jane Doe’s record on a particular issue before 

exhorting viewers to ‘call Jane Doe and tell her what 

you think.’” 551 U.S. at 498 n.7. The principal 

opinion, however, pointedly distinguished this kind 

of ad from a genuine issue ad, implying that the 

“Jane Doe” ad might still be subject to Section 203’s 

prohibition. Id. at 2667 n.6. With such differing 

views on the Court about an ad of this sort, it is 

entirely predictable that a covered speaker will have 

difficulty finding the line. 
16

Anticipating that many ads will not satisfy 

every element of its safe harbor, the FEC articulated 

the factors that it will “consider,” such as whether 

the communication has “any indicia of express 

advocacy” . . . ‘to determine whether, on balance, a 

communication’ meets the Court’s as-applied test.” 

11 C.F.R. § 114.15(c) (2007). One factor is whether 

the communication “[i]ncludes a call to action or 

other appeal that interpreted in conjunction with the 

rest of the communication urges an action other than 

voting for or against or contributing to a clearly 

identified Federal candidate or political party.” § 

114.15(c)(2)(iii). Another factor requires determining 

whether the communication “focuses on a public 

policy issue.” These are precarious judgments for 

anyone to make, let alone an organization acting on 

pain of criminal penalties, fines, and investigations. 

§ 114.15(c)(2)(i). 

As the Court observed in WRTL, such an 

“open-ended rough-and-tumble of factors” is sure to 

invite complex argument. WRTL, 551 U.S. at 451. 

Moreover, the FEC has acknowledged that an ad 

might have no indicia of express advocacy and still 

be subject to the electioneering communications ban, 

intimidating speakers who would otherwise exercise 

their First Amendment rights. See Explanation and 

Justification to Electioneering Communications 

Rules, 72 Fed. Reg. 72899, 72905 (December 26, 

2007). 

The First Amendment “demands a greater 

degree of specificity than in other contexts,” lest 

speech be deterred by the speaker’s uncertainty 

about what is permitted and reluctance to come too 
17

close to the line. Smith v. Goguen, 415 U.S. 566, 573 

(1974). If a test lacks sufficient specificity, speakers 

will “steer far wider of the unlawful zone . . . than if 

the boundaries of the forbidden areas were clearly 

marked.” Baggett v. Bullitt, 377 U.S. 360, 372 (1964) 

(internal citations and quotations omitted). This is 

especially true if the statute imposes criminal 

sanctions. Virginia v. Hicks, 539 U.S. 113, 119 

(2003). Free speech may not be so inhibited. 

In the end, it is hardly surprising that the asapplied test articulated by this Court, and as 

implemented by the Federal Election Commission, 

chills constitutionally protected speech. As the Court 

noted in McConnell, “the distinction between ‘issue’ 

and express advocacy seemed neat in theory, [but] 

the two categories of advertisements have proved 

functionally identical in important respects.” 540 

U.S. at 126. In the words of one witness in the 

McConnell litigation, “What separates issue 

advocacy and political advocacy is a line in the sand 

drawn on a windy day.” Id. at n.16 (internal 

quotation marks omitted). 

Such an uncertain line between the 

constitutionally protected and the felonious “offers 

no security for free discussion,” and thus “compels 

the speaker to hedge and trim.” Buckley, 424 U.S. at 

43 (quoting Thomas v. Collins, 323 U.S. 516, 535 

(1945)). Under Section 203, a speaker must choose a 

mode of communication based on a maze of 

acceptable and prohibited paths, rather than a 

straightforward assessment of the best means of 

reaching and persuading the desired audience. The 
18

as-applied test is thus insufficient and Section 203 

should be held invalid on its face. 

CONCLUSION 

For the reasons stated above, the Court 

should overrule the portion of McConnell which 

upheld the facial validity of Section 203 of BCRA. 

Respectfully submitted, 

Lawrence H. Norton 

Counsel of Record 

James A. Kahl 

Gregg P. Skall 

WOMBLE CARLYLE 

 SANDRIDGE & RICE, PLLC 

1401 I Street, N.W. 

Seventh Floor 

Washington, D.C. 20005-2225 

(202) 857-4429 

Counsel for Amici Curiae 

July 31, 2009