United States District Court

Eastern District of Virginia

Richmond Division

The Real Truth About Obama, Inc.

Plaintiff,

v.

Federal Election Commission and

United States Department of Justice,

Defendants.

Case No. 3:08-cv-00483-JRS

Second Preliminary Injunction Motion

The Real Truth About Obama, Inc. (“RTAO”) moves for a preliminary injunction against

Defendants to enjoin them from enforcing (a) 11 C.F.R. § 100.22(b) (“expressly advocating”),

(b) the FEC’s PAC status enforcement policy, including the major-purpose test; and (c) 11

C.F.R. § 114.15 (WRTL II’ appeal-to-vote test) facially and as applied to RTAO’s proposed radio

and internet advertisement “Survivors.”

Brief in Support

In addition to the activities described in its Verified Complaint, (Doc. 1), RTAO has developed this similar new advertisement “Survivors” for which it also seeks judicial relief to

broadcast and place on its website. “Survivors” is in response to a controversy arising just last

week over whether Senator Obama has lied about his voting record as an Illinois State Senator on

a state equivalent to the federal Born-Alive Infants Protection Act (which requires that any child

born alive, even after an attempted abortion, be protected as any born child), and in turn Senator

Obama has now said that National Right to Life Committee has lied about his voting record on

this issue. See http://www.nrlc.org/ObamaBAIPA/Obamacoveruponbornalive.htm. The script of

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“Survivors” is as follows:

NURSE: The abortion was supposed to kill him, but he was born alive. I couldn’t

bear to follow hospital policy and leave him on a cold counter to die, so I held and

rocked him for 45 minutes until he took his last breath. 

MALE VOICE: As an Illinois Democratic State Senator, Barack Obama voted

three times to deny lifesaving medical treatment to living, breathing babies who

survive abortions. For four years, Obama has tried to cover-up his horrendous

votes by saying the bills didn’t have clarifying language he favored. Obama has

been lying. Illinois documents from the very committee Obama chaired show he

voted against a bill that did contain the clarifying language he says he favors. 

Obama’s callousness in denying lifesaving treatment to tiny babies who survive

abortions reveals a lack of character and compassion that should give everyone

pause. 

Paid for by The Real Truth About Obama, Inc. 

RTAO fears that because “Survivors” attacks the character and policy positions of a politician, who happens to be a candidate for president, it will be deemed “express advocacy” under

the FEC’s vague and overbroad definition at 11 C.F.R § 100.22(b), or may be deemed an electioneering communication under the FEC’s vague and overbroad regulation at 11 C.F.R.

§ 114.15. RTAO’s fear is further reinforced by statements made by the FEC in its opposition to

RTAO’s first motion for preliminary injunction, (Doc. 31), where it looked to whether an ad

questions a candidate’s “leadership qualities or patriotism” to determine whether it contains express advocacy. FEC’s Memorandum in Opposition to Plaintiff’s Motion for Preliminary Injunction (Doc. 31) at 12 n.5. 

Just as with the “Change” ad, the challenged provisions are unconstitutional as applied to

“Survivors” for the reasons stated in RTAO’s complaint, (Doc. 1), and memorandum in support

of its first motion for preliminary injunction. (Doc. 4). Rather than reproduce RTAO’s memorandum in support of its first preliminary injunction, (Doc. 4), RTAO incorporates that document by

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Case 3:08-cv-00483-JRS Document 53 Filed 08/20/2008 Page 2 of 4
reference and the Court is respectfully directed to the legal arguments and analysis therein which

apply equally to RTAO’s ad “Survivors.” 

RTAO requests that the hearing for this motion be combined with the hearing on the first

motion for preliminary injunction scheduled for September 10, 2008, at 1:00 P.M. RTAO respectfully moves that a preliminary injunction should issue and no security should be required, or

it should be nominal, since Defendants have no monetary stake.

James Bopp, Jr.,* jboppjr@aol.com

Richard E. Coleson,*

 rcoleson@bopplaw.com

Barry A. Bostrom,*

 bbostrom@bopplaw.com

Clayton J. Callen,* ccallen@bopplaw.com

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434 telephone

812/234-3685 facsimile

 *pro hac vice

Lead Counsel for Plaintiff

Respectfully submitted,

/s/ 

Michael Boos (VA State Bar No. 37524)

Law Office of Michael Boos

4101 Chain Bridge Road, Suite 313

Fairfax, VA 22030

703/691-7717 telephone

703/691-7543 facsimile

michael.boos@gte.net

Local Counsel for Plaintiff

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Case 3:08-cv-00483-JRS Document 53 Filed 08/20/2008 Page 3 of 4
Certificate of Service

I hereby certify that on August 20, 2008, I served upon the below listed persons copies of

this document by electronically filing this document for electronic transmission.

John Richard Griffiths

U.S. Department of Justice

Civil Division, Federal Programs Branch

P.O. Box 883

Washington, DC 20044

john.griffiths@usdoj.gov

Debra Jean Prillaman

Office of U.S. Attorney

600 East Main Street, Suite 1800

Richmond, VA 23219

debra.prillaman@usdoj.gov

J. Gerald Hebert 

J. Gerald Hebert, P.C. 

5019 Waple Ln 

Alexandria, VA 22304 

ghebert@campaignlegalcenter.org

Audra Anne Hale-Maddox

ahale-maddox@fec.gov

Thomasenia P. Duncan

tduncan@fec.gov

David Kolkler. dkokler@fec.gov

Kevin Deeley, kdeeley@fec.gov

Holly Baker, hbaker@fec.gov

Vivien Clair, vclair@fec.gov

Seth Nesin, snesin@fec.gov

Adav Noti, anoti@fec.gov

Claire Rajan, crajan@fec.gov

Federal Election Commission

999 E Street NW

Washington, DC 20463

And I hereby certify that I will mail the document by U.S. mail to the following non-filing users:

Daniel R. Ortiz 

John Allan Love Professor of Law 

University of Virginia School of Law 

580 Massie Road 

Charlottesville, VA 22903-1738 

Richard Briffault 

Joseph P. Chamberlain Professor of 

 Legislation 

Columbia University School of Law 

435 West 116th Street 

New York, NY 10027 

/s/ 

Michael Boos (VA State Bar No. 37524)

Law Office of Michael Boos

4101 Chain Bridge Road, Suite 313

Fairfax, VA 22030

703/691-7717 telephone

703/691-7543 facsimile

michael.boos@gte.net

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