United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 23, 2016 Decided August 2, 2016

No. 15-5264

PURSUING AMERICA’S GREATNESS,

APPELLANT

v.

FEDERAL ELECTION COMMISSION, OFFICE OF GENERAL 

COUNSEL,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:15-cv-01217)

Jason Torchinsky argued the cause and filed the briefs for 

appellant.

Christina M. Martin was on the brief for amicus curiae 

Pacific Legal Foundation and James Madison Center for Free 

Speech in support of plaintiff-appellant.

Charles Kitcher, Attorney, Federal Election 

Commission, argued the cause for appellee. With him on the 

brief were Daniel A. Petalas, Acting General Counsel, Kevin 

Deeley, Acting Associate General Counsel, and Erin Chlopak,

Acting Assistant General Counsel.

USCA Case #15-5264 Document #1628137 Filed: 08/02/2016 Page 1 of 18
2

Before: GRIFFITH and KAVANAUGH, Circuit Judges, and 

RANDOLPH, Senior Circuit Judge.

GRIFFITH, Circuit Judge: The Federal Election 

Commission prohibits unauthorized political committees, like 

Pursuing America’s Greatness, from using candidates’ names 

in the titles of their websites and social media pages. Pursuing 

America’s Greatness sought a preliminary injunction against 

this rule, which the district court denied. We reverse the 

district court because the restriction, as applied to Pursuing 

America’s Greatness, is a content-based ban on speech that 

likely violates the First Amendment.

I

Pursuing America’s Greatness (PAG) is a political 

committee that works for the election of federal officeholders. 

As a political committee, PAG must comply with the Federal 

Election Campaign Act (FECA), 52 U.S.C. §§ 30101-26,

30141-46, and the FEC’s implementing regulations. This case 

deals with one set of those rules: naming restrictions for 

political committees.

FECA creates two baskets of naming restrictions, one for 

committees that are “authorized” by a candidate to receive or 

spend money on his behalf, and another for committees that 

are not so authorized. Id. § 30101(6) (defining “authorized 

committee”). An authorized committee must use the 

candidate’s name in its name. Id. § 30102(e)(4). Unauthorized 

committees may not. Id. PAG is an unauthorized committee

and cannot include any candidate’s name in its own name. To 

illustrate the difference, consider two committees that 

supported the presidential bid of former Governor Mike 

Huckabee this election cycle. Huckabee’s authorized 

committee is called “Huckabee for President.” In contrast, 

USCA Case #15-5264 Document #1628137 Filed: 08/02/2016 Page 2 of 18
3

Huckabee’s name appears nowhere in PAG’s name, even 

though PAG also supported the former Governor’s bid.

Although FECA’s naming rules reach only committee 

names, the FEC also restricts the names of committee

projects. 11 C.F.R. § 102.14(a) (extending FECA’s naming 

requirements to “any name under which a committee conducts 

activities, such as solicitations or other communications,

including a special project name”). According to the FEC, a

committee’s projects include online projects, such as websites 

or social media pages. See FEC Advisory Op. 2015-04, 2015 

WL 4480266, at *2 (July 16, 2015); FEC Advisory Op. 1995-

09, 1995 WL 247474, at *5 (Apr. 21, 1995). The naming 

restrictions apply whether or not a committee’s project 

involves fundraising, because the FEC sees the “potential for 

confusion” as “equally great in all types of committee 

communications.” FEC Advisory Op. 2015-04, 2015 WL 

4480266, at *2 (quoting Special Fundraising Projects and 

Other Use of Candidate Names by Unauthorized Committees, 

57 Fed. Reg. 31,424, 31,425 (July 15, 1992)).

But the FEC does not apply these rules to all committee 

projects. There is an exception that allows unauthorized 

committees to use candidate names in titles that “clearly and 

unambiguously” show opposition to the named candidate, 11 

C.F.R. § 102.14(b)(3), because “the potential for fraud and 

abuse is significantly reduced.” Special Fundraising Projects 

and Other Use of Candidate Names by Unauthorized 

Committees, 59 Fed. Reg. 17,267, 17,269 (Apr. 12, 1994).

For instance, the FEC gave the example of a project titled 

“Citizens Fed Up with Doe.” Id. There would be little risk 

that the public would think candidate Doe authorized the 

project’s work.

USCA Case #15-5264 Document #1628137 Filed: 08/02/2016 Page 3 of 18
4

Which brings us to the instant dispute. To support 

Governor Huckabee’s most recent run for the White House, 

PAG used a website and a Facebook page named “I Like 

Mike Huckabee,” which PAG worried would run afoul of the 

FEC’s naming rules. PAG sought a preliminary injunction to 

prevent the FEC from enforcing those rules, invoking the First 

Amendment and the Administrative Procedure Act. The 

district court denied PAG’s motion. Pursuing America’s 

Greatness v. FEC, 132 F. Supp. 3d 23, 44 (D.D.C. 2015).

PAG timely appealed, and we have jurisdiction under 28 

U.S.C. § 1292(a)(1). We reverse the district court, concluding 

that PAG is entitled to a preliminary injunction because there 

is a substantial likelihood that, as applied to PAG, the FEC’s 

naming restrictions in section 102.14(a) violate the First 

Amendment.

II

At the outset, we must address two threshold issues. First, 

the FEC contends that PAG lacks a continuing interest in this 

case because Governor Huckabee has suspended his 

presidential campaign and PAG may now use his name in its 

online activities. Because our jurisdiction is limited to live 

cases or controversies, U.S. CONST. art. III, § 2, cl. 1, we

cannot “retain jurisdiction over cases in which one or both of 

the parties plainly lack a continuing interest.” Friends of the 

Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 

192 (2000); Calderon v. Moore, 518 U.S. 149, 150 (1996) 

(per curiam) (“[A]n appeal should . . . be dismissed as moot 

when, by virtue of an intervening event, a court of appeals 

cannot grant ‘any effectual relief whatever’ in favor of the 

appellant.” (citation omitted)).

USCA Case #15-5264 Document #1628137 Filed: 08/02/2016 Page 4 of 18
5

We disagree with the FEC. Governor Huckabee is not the 

only candidate that PAG hopes to support this cycle. Rather, 

PAG intends to use the names of candidates still running for 

federal office in the titles of several other websites and 

Facebook pages. For example, PAG will use the title “I Like 

Kelly Ayotte” in its online support for Senator Kelly Ayotte

and similar titles for Senator Richard Burr and Congressman 

David Young. Although the FEC argues that PAG has not 

financially supported Senator Ayotte, Senator Burr, or 

Congressman Young as it did Governor Huckabee, PAG’s 

expenditures are irrelevant to PAG’s interest in this case: its

ability to operate websites and social media pages with titles 

forbidden by the FEC. PAG’s intent to continue violating 

section 102.14(a) keeps this case alive. Cf. Unity08 v. FEC,

596 F.3d 861, 864 (D.C. Cir. 2010) (holding that controversy 

was not moot even though group stopped participating in 

2008 election because group had a “clear and definite intent to 

resume its activities . . . for the 2012 presidential election”).

We also conclude that PAG has standing to challenge

section 102.14. To have standing, PAG must show, among 

other things, that its injury will be redressed by a favorable 

decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 

560-61 (1992). PAG asks us to redress its injury by striking 

section 102.14’s naming restrictions, which prevent PAG 

from using candidate names as it would like. The FEC recasts 

PAG’s challenge, however, as contesting only a subset of 

section 102.14. The agency argues that enjoining the FEC 

from enforcing only that subset would not redress PAG’s

injury because the remaining portions of section 102.14 

would still prevent PAG from using candidate names in its 

project titles. But the FEC is incorrect that PAG’s challenge 

targets only a portion of section 102.14. Instead, PAG has 

clearly asked us to enjoin the FEC from enforcing the entirety 

of section 102.14 against it. Were we to grant PAG that relief, 

USCA Case #15-5264 Document #1628137 Filed: 08/02/2016 Page 5 of 18
6

its injury would undoubtedly be redressed. As a result, PAG 

has standing.

III

To receive the “extraordinary remedy” of a preliminary 

injunction, PAG must make a “clear showing” that four 

factors, taken together, warrant relief: likely success on the 

merits, likely irreparable harm in the absence of preliminary 

relief, a balance of the equities in its favor, and accord with 

the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 

U.S. 7, 20, 22 (2008); see also Davis v. Pension Benefit Guar. 

Corp., 571 F.3d 1288, 1291-92 (D.C. Cir. 2009). We review

the district court’s weighing of these factors for abuse of 

discretion, but its legal conclusions de novo. Davis, 571 F.3d 

at 1291.

A

PAG has shown a substantial likelihood of success on the 

merits of its First Amendment claim.1

1 We need not resolve here any tension in the case law regarding 

the showing required on the merits for a preliminary injunction. 

Compare Winter, 555 U.S. at 20 (requiring the plaintiff to show 

“likely” success on the merits), with Sottera, Inc. v. FDA, 627

F.3d 891, 893 (D.C. Cir. 2010) (requiring the plaintiff to show 

“substantial likelihood” of success on the merits). PAG meets either 

standard. And, because PAG has shown a substantial likelihood of 

success on the merits, we need not decide whether showing a

“likelihood of success” is “an independent, free-standing 

requirement, or whether, in cases where the other three factors 

strongly favor issuing an injunction, a plaintiff need only raise a 

serious legal question on the merits.” Aamer v. Obama, 742 F.3d

1023, 1043 (D.C. Cir. 2014) (internal quotation marks omitted).

USCA Case #15-5264 Document #1628137 Filed: 08/02/2016 Page 6 of 18
7

i

Before we reach PAG’s First Amendment arguments, we 

first consider whether PAG’s alternative APA claim has 

merit. See Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 

U.S. 439, 445 (1988) (“A fundamental and longstanding 

principle of judicial restraint requires that courts avoid 

reaching constitutional questions in advance of the necessity 

of deciding them.”). It does not.

PAG argues that the FEC violated the APA in extending

section 102.14(a)’s naming rules to websites and social media 

pages that do not involve fundraising. Specifically, PAG 

challenges the FEC’s 2015 advisory opinion, which 

announced that interpretation. See FEC Advisory Op. 2015-

04, 2015 WL 4480266, at *2-3 (July 16, 2015). PAG grounds 

its challenge in the APA’s prohibition on agency action that is 

arbitrary, capricious, an abuse of discretion, or contrary to 

law. 5 U.S.C. § 706(2)(A). PAG argues that in extending the 

reach of section 102.14 to websites and social media pages 

that lack any connection to fundraising, the FEC’s advisory 

opinion strays beyond the underlying regulation’s purpose. 

According to PAG, section 102.14 sought only to avoid fraud 

in fundraising, a risk not present here.

In issuing the advisory opinion, the FEC interpreted 

section 102.14, its own regulation. We give “substantial 

deference” to an agency’s interpretation of its own regulation, 

Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994),

and we will accept the agency’s view unless it is “plainly 

erroneous or inconsistent with the regulation.” Decker v. Nw. 

Envtl. Def. Ctr., 133 S. Ct. 1326, 1337 (2013) (quoting Chase 

Bank USA, N.A. v. McCoy, 562 U.S. 195, 208 (2011)).

We conclude that the FEC reasonably applied the naming 

requirements of section 102.14 to an unauthorized 

USCA Case #15-5264 Document #1628137 Filed: 08/02/2016 Page 7 of 18
8

committee’s websites and social media pages. The regulation

applies to “any name under which a committee conducts 

activities, such as solicitations or other communications.” 11

C.F.R. § 102.14(a) (emphasis added). This broad language 

can reasonably be read to encompass more than just 

fundraising activities. See FEC Advisory Op. 2015-04, 2015 

WL 4480266, at *2 (concluding that this language 

“necessarily means that communications need not be 

solicitations” of donations to come within section 102.14(a)).

In any event, the FEC justified extending the naming 

restrictions in section 102.14 to committee projects and other 

communications by more than just concern over fraud in 

fundraising, including the worry that voters might be 

confused whether a message is from a candidate or someone 

else. See 57 Fed. Reg. at 31,424-25. The FEC emphasized that 

“the potential for confusion is equally great in all types of 

committee communications,” not only communications 

related to fundraising. Id. at 31,425 (emphasis added). 

Accordingly, we hold that PAG is unlikely to succeed on its 

APA challenge.2

ii

PAG’s First Amendment argument fares much better. 

There is a substantial likelihood that section 102.14 violates 

the First Amendment as applied to PAG.

2 PAG also argues that if we agree with the district court’s

conclusion that section 102.14 is a disclosure provision, we must 

find that it “cannot be applied to PAG’s Facebook . . . 

communications” under relevant disclosure regulations. Appellant’s

Br. 55-56. We need not reach this argument because we conclude 

below that section 102.14 is not a disclosure requirement. See infra 

section III.A.ii.

USCA Case #15-5264 Document #1628137 Filed: 08/02/2016 Page 8 of 18
9

The FEC and PAG principally disagree over how strictly 

we should review section 102.14. To PAG, the regulation is a 

classic restriction on political speech, and we should apply

our highest presumption of illegality. See Citizens United v. 

FEC, 558 U.S. 310, 340 (2010) (applying strict scrutiny); see 

also 57 Fed. Reg. at 31,425 (describing section 102.14(a) as a 

“ban” on speech). To the FEC, however, section 102.14 is not 

a restriction on speech at all. Instead, the FEC characterizes 

its rule as part of FECA’s disclosure framework. The FEC 

urges that the rule gives effect to the Act’s requirement that 

an unauthorized committee disclose that its communications 

are “not authorized by any candidate or candidate’s 

committee.” 52 U.S.C. § 30120(a)(3). We view disclosure 

rules far less skeptically than we do bans on speech. See 

Citizens United, 558 U.S. at 366-67.

To decide whether a law is a disclosure requirement or a

ban on speech, we ask a simple question: does the law require 

the speaker to provide more information to the audience than 

he otherwise would? For example, disclosure rules have 

required speakers to identify those who fund their 

advertisements, id. at 366, the country of origin of the meat 

they sell, Am. Meat Inst. v. USDA, 760 F.3d 18, 20 (D.C. Cir. 

2014) (en banc), or the total price of their airline tickets, Spirit 

Airlines, Inc. v. U.S. Dep’t of Transp., 687 F.3d 403, 413-14

(D.C. Cir. 2012). See also Nat’l Ass’n of Mfrs. v. SEC, 800

F.3d 518, 524 (D.C. Cir. 2015). The Supreme Court’s 

decision in Zauderer v. Office of Disciplinary Counsel of the 

Supreme Court of Ohio, 471 U.S. 626 (1985), which dealt 

with the regulation of commercial speech, is instructive.

There, a state disciplinary rule required attorneys who 

advertise contingency-fee services to include a notice that a 

client might have to pay some costs if the claim failed. Id. at 

633. The challenger argued that the requirement was a ban on 

commercial speech, and not a disclosure. Id. at 650. The 

USCA Case #15-5264 Document #1628137 Filed: 08/02/2016 Page 9 of 18
10

Supreme Court thought otherwise. The challenger’s argument 

“overlook[ed] material differences between disclosure 

requirements and outright prohibitions on speech.” Id. The 

law was a disclosure, not a speech ban, in part because it did 

not “prevent attorneys from conveying information to the 

public.” Id. Instead, it “only required [attorneys] to provide 

somewhat more information than they might otherwise be 

inclined to present.” Id.3

Following Zauderer’s logic, we do not think that section 

102.14(a) compels disclosure. It does not require PAG “to 

provide somewhat more information” than it otherwise would. 

Id. It does not obligate PAG to say anything. Quite the 

opposite. The regulation “prevent[s]” PAG “from conveying 

information to the public.” Id.; see also Citizens United, 558 

U.S. at 366 (“[D]isclosure requirements . . . ‘do not prevent 

anyone from speaking.’” (quoting McConnell v. FEC, 540 

U.S. 93, 201 (2003))).

To be sure, disclosure rules often do incidentally prohibit 

speech, because the requirement to say one thing necessarily 

means the speaker cannot say the opposite. FECA provides a 

ready illustration. FECA requires an unauthorized committee 

to explain to the public that its “communication is not 

authorized by any candidate or candidate’s committee.” 52

U.S.C. § 30120(a)(3); see also id. § 30120(d)(2) (requiring 

radio or television communications to state who “is

responsible for the content of th[e] advertising”). That is a

3 Zauderer also noted that “in some instances compulsion to 

speak may be as violative of the First Amendment as prohibitions 

on speech.” 471 U.S. at 650. We do not opine here on when the 

compulsion to speak becomes more like a speech restriction than a 

disclosure. Instead we make the more limited point that the 

provision of information is necessary, but not sufficient, for a law 

to be a disclosure.

USCA Case #15-5264 Document #1628137 Filed: 08/02/2016 Page 10 of 18
11

garden-variety disclosure requirement: unauthorized 

committees must provide more information than they 

otherwise would. Yet the required disclosure also necessarily 

prohibits an unauthorized committee from saying that its

communication is authorized by the candidate. For example, 

when PAG announces that it is not authorized to act on a

candidate’s behalf, it cannot turn around and say that it is

authorized as well. If it did, PAG would not be disclosing the 

information mandated by the statute.

But PAG has provided all the information that the FEC 

and FECA require. PAG’s websites and social media pages 

tell the audience that PAG is not authorized to act on any 

candidate’s behalf, and the FEC does not argue that PAG says

the opposite or otherwise violates FECA’s disclosure 

requirements. All PAG hopes to do is use candidate names in 

the titles of its communications. Even if using a candidate’s 

name in that way might make FECA’s disclosure provisions

less effective, that possibility alone neither violates FECA nor

transforms a speech restriction into a disclosure. By 

prohibiting the use of a candidate’s name in the titles of 

PAG’s websites and social media pages, the FEC banned 

more speech than that covered by FECA’s provisions 

requiring disclosure. See Catholic Leadership Coal. of Tex. v. 

Reisman, 764 F.3d 409, 426-27 (5th Cir. 2014) (“[P]rovisions 

that put a ceiling on speech even if a party is willing to 

provide all of the information that the government requests 

constitute[] something more than a simple disclosure 

requirement.”). As a result, we conclude that section 

102.14(a) is a restriction on PAG’s political speech, not a 

disclosure requirement.4

4 Nothing in Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 

1988), or Galliano v. U.S. Postal Service, 836 F.2d 1362 (D.C. Cir. 

1988), both cited by the FEC, undermines our conclusion. Although 

USCA Case #15-5264 Document #1628137 Filed: 08/02/2016 Page 11 of 18
12

The First Amendment “has its fullest and most urgent 

application to speech uttered during a campaign for political 

office.” Ariz. Free Enter. Club’s Freedom Club PAC v. 

Bennett, 131 S. Ct. 2806, 2817 (2011) (quoting Eu v. S.F. Cty. 

Democratic Cent. Comm., 489 U.S. 214, 223 (1989)). Among

restrictions on political speech, particularly troublesome are 

those that are based on the content of the speech. A law 

prohibiting speech that “draws distinctions based on the 

message a speaker conveys” must serve a compelling interest 

and be narrowly tailored to advance that interest. Reed v. 

Town of Gilbert, 135 S. Ct. 2218, 2227 (2015) (applying strict 

scrutiny); McCullen v. Coakley, 134 S. Ct. 2518, 2531 (2014) 

(explaining that a law is content based if it “require[s] 

enforcement authorities to examine the content of the message 

that is conveyed to determine whether a violation has 

occurred” (internal quotation marks omitted)).

On its face, section 102.14 “draws distinctions” based 

solely on what PAG says. Reed, 135 S. Ct. at 2227. As an 

unauthorized committee, PAG can use a candidate’s name in 

a title of a communication only if the title demonstrates 

opposition to the candidate.5 In other words, to know whether 

those cases characterized FECA’s naming restrictions (then 

codified at 2 U.S.C. § 432(e)(4)) as part of a disclosure regime, they 

did not assess the constitutionality of section 102.14. See Galliano,

836 F.2d at 1363-64, 1368; Common Cause, 842 F.2d at 439, 442.

5 Before the district court, PAG characterized its argument as an 

as-applied challenge. That does not prevent us from looking at the 

face of section 102.14 in determining whether it is content based. 

“[T]he distinction between facial and as-applied challenges is not 

so well defined . . . that it must always control the . . . disposition in 

every case.” Citizens United, 558 U.S. at 331. Indeed, “[t]he 

substantive rule of law is the same” for both as-applied and facial 

First Amendment challenges. Edwards v. District of Columbia, 755 

F.3d 996, 1001 (D.C. Cir. 2014); see Legal Aid Servs. of Or. v. 

USCA Case #15-5264 Document #1628137 Filed: 08/02/2016 Page 12 of 18
13

to apply section 102.14, the FEC must “examine the content” 

of the title of PAG’s website or Facebook page and ask 

whether the title supports or opposes the candidate. McCullen,

134 S. Ct. at 2531. That is content-based discrimination pure 

and simple.

Citing our decision in Republican National Committee v. 

Federal Election Commission, 76 F.3d 400 (D.C. Cir. 1996), 

the FEC argues that section 102.14 is not content based

because it has a benign purpose: avoiding voter confusion. In 

Republican National Committee, political committees 

challenged an FEC regulation that required them to send 

letters to their donors providing no more than certain limited 

pieces of information. Id. at 403, 409. The political 

committees argued that the rule violated the First Amendment 

because they were not allowed to include additional speech in 

the letter beyond that prescribed by the FEC. Relying upon 

the Supreme Court’s decision in Ward v. Rock Against 

Racism, 491 U.S. 781, 791 (1989), we upheld the rule on the 

ground that it served “purposes unrelated to the content of 

expression.” Republican Nat’l Comm., 76 F.3d at 409 

(quoting Ward, 491 U.S. at 791). Because the FEC rule could 

be justified without reference to the content of speech, we 

concluded that the rule was not content based, and that it

passed muster under intermediate scrutiny. Id. at 409-10.

But since our decision in Republican National 

Committee, the Supreme Court has articulated a more limited 

view of the role purpose should play in our analysis. In Reed,

the Court instructed that we should look to purpose only if the 

text of the law is not content based. 135 S. Ct. at 2228-29. If a

Legal Servs. Corp., 608 F.3d 1084, 1096 (9th Cir. 2010) (“The 

underlying constitutional standard, however, is no different [in an 

as-applied challenge] th[a]n in a facial challenge.”). Here, the 

substantive law requires us to look at what the regulation says.

USCA Case #15-5264 Document #1628137 Filed: 08/02/2016 Page 13 of 18
14

law, by its terms, discriminates based on content, we apply

strict scrutiny “regardless of the government’s benign motive, 

content-neutral justification, or lack of ‘animus toward the 

ideas contained’ in the regulated speech.” Id. at 2228 (citation 

omitted). According to Reed, Ward “had nothing to say about 

facially content-based restrictions.” Id. To the extent our 

decision in Republican National Committee looked to the 

purpose of a law that regulated content on its face, Reed 

forbids us from following Republican National Committee’s 

course here. Because the plain terms of section 102.14

prohibit speech based on the message conveyed, the 

regulation is content based regardless of its purpose.

Nor does section 102.14’s limited scope change our 

conclusion. The FEC argues that section 102.14 is not content

based because PAG can still discuss candidate names 

anywhere else within a project, except its title. But whether a 

burden on speech leaves open alternative means of expression 

does not factor into whether a speech ban is content based. 

United States v. Playboy Entm’t Grp., 529 U.S. 803, 812 

(2000) (concluding that, when evaluating whether a law is a 

content-based speech restriction, it is “of no moment that the 

statute does not impose a complete prohibition”). Rather, the 

availability of alternative avenues of expression is often

relevant to a wholly separate question: once we determine that 

a law is not content based, we look to its scope to decide 

whether the law nevertheless overly burdens speech. See 

United States v. Grace, 461 U.S. 171, 177 (1983) (explaining 

that the government may regulate the time, place, or manner 

of protected speech where the law is “content-neutral,”

“narrowly tailored,” “and leave[s] open ample alternative 

channels of communication”). At any rate, the FEC

understates the importance of a title. The title is a critical way 

for committees to attract support and spread their message

because it tells users that the website or Facebook page is

USCA Case #15-5264 Document #1628137 Filed: 08/02/2016 Page 14 of 18
15

about the candidate. Without a candidate’s name, the title

does not provide the same signaling to the audience. Allowing 

a committee to talk about a candidate in the body of a website 

is of no use if no one reaches the website. Cf. McCullen, 134 

S. Ct. at 2536-37.

Because section 102.14(a) restricts political speech based 

on its content, the FEC may enforce the regulation only if it 

passes strict scrutiny. Accordingly, the government must 

show the restriction is narrowly tailored to a compelling 

governmental interest. Reed, 135 S. Ct. at 2231; see Gonzales 

v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 

418, 429 (2006) (“[T]he burdens at the preliminary injunction 

stage track the burdens at trial.”). If a less restrictive 

alternative for achieving that interest exists, the government 

“must use that alternative.” Playboy Entm’t, 529 U.S. at 813.

The government fails to meet its burden.

We assume that the government has a compelling interest 

in avoiding the type of voter confusion identified by the FEC.

See Burson v. Freeman, 504 U.S. 191, 199 (1992) (plurality 

opinion). Here, the FEC reasonably fears that voters might 

mistakenly believe an unauthorized committee’s activities are 

actually approved by a candidate if the committee uses the 

candidate’s name in its title. But there is a substantial 

likelihood that section 102.14 is not the least restrictive means 

to achieve the government’s interest.

For example, as amicus pointed out, the FEC could 

require a large disclaimer at the top of the websites and social 

media pages of unauthorized committees that declares, “This 

Website Is Not Candidate Doe’s Official Website.” The 

Supreme Court regularly views such disclosure requirements 

as less restrictive alternatives to “flat bans” on speech. 

McCutcheon v. FEC, 134 S. Ct. 1434, 1460 (2014) (plurality 

USCA Case #15-5264 Document #1628137 Filed: 08/02/2016 Page 15 of 18
16

opinion); see also Citizens United, 558 U.S. at 369. But the 

FEC rejected proposals to have “stronger, or larger, 

disclaimers, in place of the overall ban.” 59 Fed. Reg. at

17,268. Its only reason for doing so was that it “believe[d] 

that such an approach could be more burdensome than the 

current ban, while still not solving the potential for fraud and 

abuse in this area.” Id. The FEC offered no evidence that 

larger or differently worded disclosures would be less 

effective at curing fraud or abuse than a ban on speech. Nor 

did the FEC make an effort to explain why such disclosures 

would be more burdensome. Without more reasoning, it is 

“difficult to assess” the merits of the FEC’s conclusions.

United States v. Alvarez, 132 S. Ct. 2537, 2551 (2012) 

(plurality opinion). What is clear, however, is that the FEC

“must present more than anecdote and supposition” to support 

a regulation subject to strict scrutiny. Playboy Entm’t, 529

U.S. at 822; Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 

392 (2000) (“We have never accepted mere conjecture as 

adequate to carry a First Amendment burden[.]”). Where the 

“record is silent as to the comparative effectiveness of . . . two 

alternatives”—one of which burdens more speech than the 

other—the more burdensome restriction cannot survive strict 

scrutiny. Playboy Entm’t, 529 U.S. at 826.

Because the FEC has not shown that its speech ban is the 

least restrictive means of achieving the government’s interest, 

there is a substantial likelihood that section 102.14 fails strict 

scrutiny and violates the First Amendment as applied to PAG.

B

In First Amendment cases, the likelihood of success “will 

often be the determinative factor” in the preliminary 

injunction analysis. Joelner v. Vill. of Wash. Park, Ill., 378 

F.3d 613, 620 (7th Cir. 2004). And so it was in the district 

USCA Case #15-5264 Document #1628137 Filed: 08/02/2016 Page 16 of 18
17

court here. Having concluded that PAG’s merits challenges 

were unlikely to succeed, the district court found nothing to 

support a preliminary injunction among the remaining factors. 

Because we see likely success in PAG’s constitutional 

challenge, we view more favorably PAG’s arguments 

regarding irreparable injury, the balance of the equities, and 

the public interest.

PAG has demonstrated that it will likely suffer

irreparable injury if we do not provide preliminary relief.

Without such relief, PAG cannot include candidate names in 

its website or social media page titles during this election 

cycle. The loss of First Amendment “freedoms, ‘for even 

minimal periods of time, unquestionably constitutes 

irreparable injury.’” Mills v. District of Columbia, 571 F.3d 

1304, 1312 (D.C. Cir. 2009) (quoting Elrod v. Burns, 427 

U.S. 347, 373 (1976) (plurality opinion)).

The remaining two factors also favor PAG. The balance 

of the equities weighs the harm to PAG if there is no

injunction against the harm to the FEC if there is. See Winter,

555 U.S. at 25-26. And in this case, the FEC’s harm and the 

public interest are one and the same, because the 

government’s interest is the public interest. See Nken v. 

Holder, 556 U.S. 418, 435 (2009) (holding that, in the context 

of a stay, assessing the harm to the opposing party and 

weighing the public interest “merge when the Government is 

the opposing party”). The FEC contends that a preliminary 

injunction will undermine the interest that both the

government and the public have in limiting fraud, abuse, and 

confusion. But there is always a strong public interest in the 

exercise of free speech rights otherwise abridged by an 

unconstitutional regulation and, without a preliminary 

injunction, PAG is unable to exercise those rights during this

election cycle. See Gordon v. Holder, 721 F.3d 638, 653 

USCA Case #15-5264 Document #1628137 Filed: 08/02/2016 Page 17 of 18
18

(D.C. Cir. 2013) (“[E]nforcement of an unconstitutional law 

is always contrary to the public interest.”). In addition, FECA 

and its accompanying regulations do much to limit voter 

confusion over the source of a message. Communications 

from committees must disclose whether they are authorized or 

unauthorized and who paid for the communication, even in 

their websites. See 11 C.F.R. § 110.11. Those disclosures 

must also be “clear and conspicuous” to give readers 

“adequate notice.” Id. § 110.11(c)(1). The FEC’s website also 

contains a publicly searchable list of all political committees 

and their status as authorized or not.6 Given these tools to 

avoid voter confusion, the public’s interest in protecting First 

Amendment rights and PAG’s ability to exercise those rights 

outweigh any interest in the continued enforcement of section

102.14.

IV

We reverse the district court’s denial of PAG’s motion 

for a preliminary injunction and remand for the district court 

to enter a preliminary injunction enjoining the application of 

11 C.F.R. § 102.14(a) against PAG’s websites and social 

media pages.

6 Federal Election Commission, New Committee Registrations,

http://www.fec.gov/data/Form1Filer.do?format=html (last visited 

July 15, 2016).

USCA Case #15-5264 Document #1628137 Filed: 08/02/2016 Page 18 of 18