Case No. 15-5264

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

PURSUING AMERICA’S GREATNESS,

Plaintiff-Appellant,

v.

FEDERAL ELECTION COMMISSION,

Defendant-Appellee.

On Appeal from the United States District Court for the

District of Columbia, Civil Action No. 15-cv-1217 (TSC)

Tanya S. Chutkan, United States District Judge

BRIEF AMICUS CURIAE OF

PACIFIC LEGAL FOUNDATION AND

JAMES MADISON CENTER FOR FREE SPEECH

IN SUPPORT OF PLAINTIFF-APPELLANT AND REVERSAL

CHRISTINA M. MARTIN

Fla. Bar No. 0100760

D.C. Circuit Bar No. 56427

Pacific Legal Foundation

8645 N. Military Trail, Ste. 511

Palm Beach Gardens, FL 33410

Telephone: (561) 691-5000

Facsimile: (561) 691-5006

E-mail: cmm@pacificlegal.org

Counsel for Amici Curiae

Pacific Legal Foundation and

James Madison Center for Free Speech

USCA Case #15-5264 Document #1590287 Filed: 12/23/2015 Page 1 of 34
STATEMENT REGARDING

CONSENT TO FILE

All parties have consented to the filing of Pacific Legal Foundation’s and James

Madison Center for Free Speech’s brief amicus curiae. To the best of the knowledge

of counsel for Amici Curiae, there are no other interested parties planning to file

amicus briefs in this case in support of Appellant Pursuing America’s Greatness.

Pursuant to Fed. R. App. P. 29(c), Amici state that 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. No person

other than Amici Curiae or its counsel made a monetary contribution to its preparation

or submission.

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CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1, and District of Columbia

Circuit Rule 26.1, Amicus Curiae Pacific Legal Foundation, a nonprofit corporation

organized under the laws of California, hereby states that it has no parent companies,

subsidiaries, or affiliates that have issued shares to the public.

Amicus Curiae James Madison Center for Free Speech is an internal fund of the

James Madison Center, Inc., a District of Columbia nonstock, nonprofit corporation.

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TABLE OF CONTENTS

Page

STATEMENT REGARDING CONSENT TO FILE ....................... i

CORPORATE DISCLOSURE STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

GLOSSARY OF ABBREVIATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix

IDENTITY AND INTEREST OF AMICI CURIAE .......................1

INTRODUCTION AND SUMMARY OF ARGUMENT ...................2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I. THE FEC’S NAMING PROHIBITION IS AN UNCONSTITUTIONAL

CONTENT-BASED RESTRICTION ON SPEECH ...................5

II. EVEN IF THE FEC OPINION IS CONTENT-NEUTRAL,

IT STILL VIOLATES PAG’S FREEDOM OF SPEECH . . . . . . . . . . . . . . . 9

A. The FEC’s Opinion Burdens Substantially More

Speech than Necessary To Achieve Its Interests ...................9

B. The Restriction Fails To Leave Open Adequate

Alternative Channels for Communication . . . . . . . . . . . . . . . . . . . . . . . 15

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

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TABLE OF AUTHORITIES

Page

Cases

Burson v. Freeman, 504 U.S. 191 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20-21

Christian Knights of the Ku Klux Klan Invisible Empire, Inc. v. D.C., 

972 F.2d 365 (D.C. Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Christian Knights of the Ku Klux Klan Invisible Empire, Inc. v. D.C.,

919 F.2d 148 (D.C. Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20-21

Citizens United v. FEC, 558 U.S. 310 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . 1, 8-9

City of Ladue v. Gilleo, 

512 U.S. 43 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 15, 18-19

FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007) ......................2

Fed. Commc’ns Comm’n v. League of Women Voters of Cal., 

463 U.S. 364 (1984) ..............................................6

FEC v. Beaumont, 539 U.S. 146 (2003) .................................1

Keller v. State Bar of Cal., 496 U.S. 1 (1990) .............................1

Liberty Coins, LLC v. Goodman, 748 F.3d 682 (6th Cir. 2014), cert. denied

sub nom. Liberty Coins, LLC v. Porter, 135 S. Ct. 950 (2015) .............1

Mattocks v. Black Entm’t Television LLC, 

43 F. Supp. 3d 1311 (S.D. Fla. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

McConnell v. FEC, 540 U.S. 93 (2003) .................................2

McCullen v. Coakley, 134 S. Ct. 2518 (2014) . . . . . . . . . . . . . . . . . . . . . . 6-7, 9-11

New York Times v. Sullivan, 376 U.S. 254 (1964) .........................2

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Page

Nike, Inc. v. Kasky, 539 U.S. 654 (2003) ................................1

Police Dep’t of Chicago v. Mosley, 408 U.S. 92 (1972) .....................5

Pursuing Am.’s Greatness v. FEC, 15-CV-1217 (TSC),

2015 WL 5675428 (D.D.C. 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 8

R.A.V. v. City of St. Paul, Minn., 505 U.S. 377 (1992) ......................8

Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218 (2015) . . . . . . . . . . . . . 1, 3, 5-6, 8

Riley v. National Federation of the Blind of N.C., Inc., 487 U.S. 781 (1988) . . . 11

Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011) . . . . . . . . . . . . . . . . . . . . . 1, 6, 8

Ward v. Rock Against Racism, 491 U.S. 781 (1989) . . . . . . . . . . . . . . . . . . . 3, 9-10

Wine & Spirits Retailers, Inc. v. Rhode Island and Providence Plantations, 

552 U.S. 889 (2007) ..............................................1

Wisconsin Right to Life v. FEC, 546 U.S. 410 (2006) ......................2

United States Constitution

U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .....5

Federal Statutes

FEC Advisory Opinion 2015–04 .......................................2

Federal Election Campaign Act of 1971 .................................2

Rules of Court

District of Columbia Circuit Rule 26.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Fed. R. App. P. 26.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

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Page

Fed. R. App. P. 29(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...... I

Miscellaneous

Amprewave Media, Create a Social Media Strategy,

http://www.amprewave.com/guides/social-media-strategy/ . . . . . . . . . . . . . . . 13

Branch, Sara E., et al., Committed to Oprah, Homer, or House: Using the

Investment Model to Understand Parasocial Relationships, 

2 Psychology of Popular Media 96 (2013), 

http://docs.lib.purdue.edu/cgi/viewcontent.cgi?article=

1066&context=psychpubs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Carr, Gina, How to Name Your Facebook Page—5 Keys to Getting Found, 

http://ginacarr.com/2012/09/find-us-on-facebook-how-to-nameyour-facebook-page-so-you-can-be-found/ . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Cohen, Jonathan, Mediated Relationships and Social Life: Current Research,

Fandom, Parasocial Relationships, and Identification, Media and Social Life

(2014) (ed. Mary Beth Oliver and Arthur A. Raney),

https://books.google.com/books?id=9EssAwAAQBAJ&printsec=

frontcover#v=onepage&q&f=false . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Facebook Help Center, How do I report a fake account that’s pretending

to be me?, https://www.facebook.com/help/174210519303259 . . . . . . . . . . . . 13

Facebook Help Center, Verified Page or profile, 

https://www.facebook.com/help/196050490547892 . . . . . . . . . . . . . . . . . 12-13

Glonka, Bradley, 8 Facts About Choosing the Right Domain Name, 

Huffington Post, Apr. 2, 2015, http://www.huffingtonpost.com/

bradley-glonka/8-facts-about-choosing-th_b_6976450.html . . . . . . . . . . . 16-17

Google’s 200 Ranking Factors: The Complete List, BackLinko, 

Dec. 21, 2015, http://backlinko.com/google-ranking-factors . . . . . . . . . . . . . 17

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Page

Harry Potter official Facebook page, Comments (Dec. 11, 2015), 

https://www.facebook.com/harrypottermovie/photos/a.461447939312.

243308.156794164312/10153781162539313/?type=3&theater . . . . . . . . . . . 14

Harry Potter official Facebook page,

https://www.facebook.com/harrypottermovie/ . . . . . . . . . . . . . . . . . . . . . . . . . 14

Improving PPC Search Engine Campaign Results Using

Generic Domain Names, Memorable Domains, 

http://www.memorabledomains.co.uk/ppcanalysis.pdf . . . . . . . . . . . . . . . . . . 16

Lakkaraju, Himabindu, et al., What’s in a Name? Understanding the Interplay

Between Titles, Content, and Communities in Social Media, 

AAAI Conference on Weblogs and Social Media (2013), 

http://www.aaai.org/ocs/index.php/ICWSM/ICWSM13/

paper/viewFile/6085Himabindu/6370 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Mitchell, Amy, et al., Millennials and Political News, Social Media—the Local

TV for the Next Generation?, Pew Research Center, June 1, 2015,

http://www.journalism.org/2015/06/01/millennials-political-news/ . . . . . . . . . 19

Niccolai, James, Is Facebook the New Political Townhall?, PC World, 

Nov. 5, 2015, http://www.pcworld.com/article/3001842/

software-social/is-facebook-the-new-political-town-hall.html . . . . . . . . . . . . . 19

Search FYI: Find What the World is Saying With Facebook Search, Facebook

Newsroom, Oct. 22, 2015, https://newsroom.fb.com/news/

2015/10/search-fyi-find-what-the-world-is-saying-with-facebook-search/ . . . 17

Twitter Help Center, Impersonation Policy,

https://support.twitter.com/articles/18366 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Twitter Help Center, The Twitter glossary,

https://support.twitter.com/articles/166337 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

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Page

What’s in a Twitter Name? Everything that You Can Fit into It, 

I Teach Blogging, http://iteachblogging.com/

whats-twitter-name-everything-can-fit/ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

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GLOSSARY OF ABBREVIATIONS

“FEC” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Federal Election Commission

“PAC” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Political Action Committee

“PAG” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Pursuing America’s Greatness

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IDENTITY AND INTEREST OF AMICI CURIAE

Pacific Legal Foundation (PLF) was founded over 40 years ago and is widely

recognized as the most experienced nonprofit legal foundation of its kind. Among

other matters affecting the public interest, PLF has repeatedly litigated to support First

Amendment free speech rights and to advance the idea that speech protections of the

First Amendment should be consistently applied, regardless of the speaker’s identity.

See, e.g., Keller v. State Bar of Cal., 496 U.S. 1 (1990); Brosterhous v. State Bar of

Cal., 906 P.2d 1242 (Cal. 1995); Liberty Coins, LLC v. Goodman, 748 F.3d 682, 686

(6th Cir. 2014), cert. denied sub nom. Liberty Coins, LLC v. Porter, 135 S. Ct. 950

(2015). PLF has also participated as amicus curiae in important cases involving the

First Amendment’s protections of corporate speech. Reed v. Town of Gilbert, Ariz.,

135 S. Ct. 2218 (2015); Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011); Citizens

United v. FEC, 558 U.S. 310 (2010); Wine & Spirits Retailers, Inc. v. Rhode Island

and Providence Plantations, 552 U.S. 889 (2007); Nike, Inc. v. Kasky, 539 U.S. 654

(2003); and FEC v. Beaumont, 539 U.S. 146 (2003).

The James Madison Center for Free Speech (Madison Center) is recognized by

the Internal Revenue Service as a nonprofit organization under 26 U.S.C. § 501(c)(3).

The Madison Center and its counsel have been involved in numerous election-law

cases, including the challenges to the Bipartisan Campaign Act of 2002 in McConnell

v. FEC, 540 U.S. 93 (2003), Wisconsin Right to Life v. FEC, 546 U.S. 410 (2006), and

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FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007). The mission of the Madison

Center is to support litigation and public education activities to defend the First

Amendment rights of citizens and citizen groups to free political expression and

association. The Madison Center is named for James Madison, the author and

principal sponsor of the First Amendment, and is guided by Madison’s belief that “the

right of free discussion . . . [is] a fundamental principle of the American form of

government.” New York Times v. Sullivan, 376 U.S. 254, 275 (1964). The Madison

Center also provides nonpartisan analysis and testimony regarding proposed

legislation.

INTRODUCTION AND SUMMARY OF ARGUMENT

This summer, the FEC issued an advisory opinion interpreting Section

30102(e)(4) of the Federal Election Campaign Act of 1971. See FEC Advisory

Opinion 2015–04. The opinion states that unauthorized political committees cannot

use the name of the candidate they support in the domain name or title of a social

media page. The FEC claims that it has a compelling interest in protecting voters

from confusing a candidate’s official page (or the page of its authorized political

committee) with an unauthorized political committee page that has the candidate’s

name in the title or web address. Pursuing Am.’s Greatness v. FEC, 15-CV-1217

(TSC), 2015 WL 5675428, at *11 (D.D.C. 2015). But under the FEC’s new

interpretation, unauthorized political committees cannot use even accurate,

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nonconfusing Internet addresses or names like “Anarchists for Bernie” or “Feminists

who like Hillary” on Facebook, Twitter, or other social media outlets. See FEC

Advisory Opinion 2015–04.

Though the government certainly has an interest in preventing fraud, the

Naming Prohibition goes too far. It is a speaker-based and content-based restriction

on speech, requiring the FEC to look at the message expressed and the speaker

expressing it to determine whether a political committee is violating the law. See

Reed, 135 S. Ct. at 2226. To justify content-based censorship, the government bears

the burden of showing that its restriction is narrowly tailored to advance a compelling

interest. See id. The government fails that heavy burden. Indeed, even if the

restriction were content-neutral, it would fail the lesser hurdle of intermediate

scrutiny. 

Content-neutral restrictions are unconstitutional when they restrict substantially

more speech than necessary or fail to leave open adequate alternative channels of

expression. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). The FEC

regulation fails on both counts. Website addresses and social media page names serve

as important markers that allow individuals to know, without visiting the site, what

kind of content to expect. Like a sign hanging outside of a brick-and-mortar business,

the title or domain name of a website will determine who chooses to visit the site.

Especially in light of the increasing importance of the Internet and social media to

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educating the public about political ideas, there are no adequate alternatives for

political committees to market their political beliefs to voters.

Likewise, the speech restriction bans substantially more speech than necessary.

The restriction does not merely ban confusing or fraudulent names, it bans a much

larger category of non-confusing, accurate names. See FEC Advisory Opinion

2015–04. The government failed to offer any evidence that titles like “I like Mike

Huckabee” are confusing Facebook or website users. But even if it had, the FEC has

many substantially less restrictive alternatives that could achieve the same end. For

example, the FEC could instead ban political committees from choosing confusing

names that actually look like they belong to the candidate, like “Campaign for Carly,”

or it could require them to choose names that imply a third-party interest in the

candidate, like “Anarchists for Bernie” or “Feminists who like Hillary.” Or it could

require political committees to include a disclaimer on the home page of the website

or social media page that says that it is not the official campaign site for the candidate

involved.

Because the FEC will be unable to prove a need for its restriction, and because

the restriction fails to leave open adequate alternative channels, this Court should

grant the injunction against the FEC.

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ARGUMENT

I

THE FEC’S NAMING PROHIBITION IS AN

UNCONSTITUTIONAL CONTENT-BASED

RESTRICTION ON SPEECH

The First Amendment provides that “Congress shall make no law . . . abridging

the freedom of speech. . . .” U.S. Const. amend. I. Under that protection, the

“government has no power to restrict expression because of its message, its ideas, its

subject matter, or its content.” Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 95

(1972). “Content-based laws—those that target speech based on its communicative

content—are presumptively unconstitutional and may be justified only if the

government proves that they are narrowly tailored to serve compelling state interests.”

Reed, 135 S. Ct. at 2226. On its face, the Naming Prohibition bans speech based on

its content and thus is subject to strict scrutiny. While government certainly has a

compelling interest in preventing political committees from acquiring donations

through fraudulent or deceptive practices, the FEC’s prohibition is not narrowly

tailored to meet a compelling interest. To the contrary, the prohibition bans far more

speech than necessary, when common-sense alternatives are available.

Determining whether a law censors speech based on its content is

straightforward. A speech restriction is content-based if it applies to a particular

communication “because of the topic discussed or the idea or message expressed.”

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Reed, 135 S. Ct. at 2227. In other words, “if it require[s] ‘enforcement authorities’ to

‘examine the content of the message that is conveyed to determine whether’ a

violation has occurred,” then it is content-based. McCullen v. Coakley, 134 S. Ct.

2518, 2531 (2014) (quoting Fed. Commc’ns Comm’n v. League of Women Voters of

Cal., 463 U.S. 364, 383 (1984)).

In Sorrell v. IMS Health Inc., the Supreme Court overturned a Vermont law that

banned pharmacies, health insurers, and similar entities from disclosing information

about doctors’ prescribing practices to pharmaceutical marketers. 131 S. Ct. at 2659-

60. Pharmacies could disclose the information to purchasers who would use the

information for educational or academic purposes. Id. at 2663. But the statute

prohibited pharmaceutical manufacturers from using the information for marketing. 

Id. Explaining that “marketing” is “speech with a particular content,” the Court found

that the statute disfavored speech based on its content. Id. The Court also held that

the statute “disfavor[ed] specific speakers, namely pharmaceutical manufacturers.” 

Id. Thus, “[b]oth on its face and in its practical operation” the law “impose[d] a

burden based on the content of speech and the identity of the speaker.” Id. at 2665.

In contrast, in McCullen, the Court held that a law establishing a buffer zone

around an abortion clinic—though unconstitutional—was not content-based. 134 S.

Ct. 2518. The Massachusetts statute at issue made it a crime to “knowingly stand on

a ‘public way or sidewalk’ within 35 feet of an entrance or driveway” of abortion

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clinics. Id. at 2525. Clinic employees and visitors were exempt. The statute did not

require enforcement authorities to examine the content of the message conveyed by

individuals in order to determine whether the individual violated the law. Id. at 2531.

An individual would violate the law not based on what they said within in the 35 feet,

but solely based on their standing within the 35 feet. Id. (“[P]etitioners can violate

the Act merely by standing in a buffer zone, without displaying a sign or uttering a

word.”). Accordingly, the law was content-neutral. Notably, the Court clarified that

the law would be content-based “if it were concerned with undesirable effects that

arise from ‘the direct impact of speech on its audience’ or ‘[l]isteners’ reactions to

speech.’ ” Id. Had the buffer statute banned standing near an abortion clinic only

when the speech “caused offense or made listeners uncomfortable” then the ban would

have been content-based. McCullen, 134 S. Ct. at 2531-32.

Here, the FEC’s Naming Prohibition specifically bans PACs from using

Internet addresses or social media page names that contain the name of a candidate

they support. See FEC Advisory Opinion 2015–04. On its face, the Naming

Prohibition bans speech based on its content. In order for the FEC to determine

whether a PAC violates the rule, it must actually read the names of the PAC’s

websites and social media pages and determine whether they contain the name of a

candidate they support. See McCullen, 134 S. Ct. at 2531. If so, the PAC violates the

FEC rule. Even if the law only banned Internet and social media names that caused

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confusion in the minds of readers, the FEC naming rule would still be a content-based

restriction, just as a buffer zone law that only banned speech that made listeners

uncomfortable would be content-based. See id. at 2531.

As a content-based ban, the Naming Prohibition is presumptively invalid.

R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 382 (1992). “In the ordinary case it

is all but dispositive to conclude that a law is content-based and, in practice,

viewpoint-discriminatory.” Sorrell, 131 S. Ct. at 2667; see also City of Ladue v.

Gilleo, 512 U.S. 43, 59 (1994) (O’Connor, J., concurring) (“With rare exceptions,

content discrimination in regulations of the speech of private citizens on private

property or in a traditional public forum is presumptively impermissible, and this

presumption is a very strong one.”). The restriction is unconstitutional unless it can

pass strict scrutiny, “which requires the Government to prove that the restriction

furthers a compelling interest and is narrowly tailored to achieve that interest,”

Citizens United, 558 U.S. at 340 (internal quotes omitted). Thus the FEC must

demonstrate that its Naming Prohibition “furthers a compelling governmental interest

and is narrowly tailored to that end.” Reed, 135 S. Ct. at 2231.

The FEC argues that its prohibition furthers its interest in preventing confusion

and mistaking the message of a PAC for a message from a candidate. Pursuing Am.’s

Greatness, 15-CV-1217 (TSC), 2015 WL 5675428, at *11. But the FEC has not

shown why prohibiting all uses of candidate names in internet addresses or social

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media page names is necessary or serves this end. See Opposition at 21-29, 38-39;

Citizens United, 558 U.S. at 362 (restriction overturned when government failed to

provide sufficient evidence to prove the restriction was narrowly tailored to meet a

compelling interest). As explained below, the FEC’s prohibition does not meet even

the lesser tailoring demands of intermediate scrutiny and should be overturned as

unconstitutional.

II

EVEN IF THE FEC OPINION IS CONTENT-NEUTRAL,

IT STILL VIOLATES PAG’S FREEDOM OF SPEECH

Even if the FEC Prohibition is content-neutral restriction on the time, place, or

manner of protected speech, it is unconstitutional. Content-neutral restrictions on the

time, place, or manner of speech “must be narrowly tailored to serve a significant

governmental interest” and must “leave open ample alternative channels” for speech.

McCullen, 134 S. Ct. at 2529 (quoting Ward, 491 U.S. at 791). Here, the FEC

prohibition fails both tests by regulating too much speech and failing to leave open

adequate alternative channels.

A. The FEC’s Opinion Burdens Substantially More

Speech than Necessary To Achieve Its Interests

A content-neutral speech restriction must be overturned as unconstitutional if

it is not “narrowly tailored to serve a significant governmental interest.” McCullen,

134 S. Ct. at 2534 (quoting Ward, 291 U.S. at 796). A speech restriction cannot censor

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or burden “substantially more speech” than necessary to further the government’s

interest. Id. That means that government may not “regulate expression in such a

manner that a substantial portion of the burden on speech does not serve to advance

its goals.” McCullen, 134 S. Ct. at 2535 (citing Ward, 491 U.S. at 799). Though less

demanding than the protection for a content-based restriction, this narrow tailoring

requirement still requires the government to “demonstrate that alternative measures

that burden substantially less speech would fail to achieve the government’s interests.” 

McCullen, 134 S. Ct. at 2540.

In McCullen, the Supreme Court held that a law creating a 35-foot buffer

around abortion clinics violated the First Amendment, because it burdened

substantially more speech than necessary to achieve the government’s interests in

“preserving access” to the clinics and “maintaining public safety” on the streets and

sidewalks around them. 134 S. Ct. at 2541. The statute made it difficult for Ms.

McCullen and others to “initiate the close, personal conversations that they view[ed]

as essential to ‘sidewalk counseling.’” Id. at 2535. The buffer restriction also made

it “more difficult” to share literature with clinic patients. Id. at 2536. Under the

narrowly tailoring requirement, the government bore the burden of showing that less

restrictive laws—like banning intimidation or blocking entrances to clinics—would

fail to achieve the same end. Id. at 2539. The government failed to meet its burden

of showing that it “seriously undertook to address the problem with less intrusive

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USCA Case #15-5264 Document #1590287 Filed: 12/23/2015 Page 20 of 34
tools.” Id. The Court outright rejected the government’s justification that the buffer

law made it easier to achieve its end. “[B]y demanding a close fit between ends and

means, the tailoring requirement prevents the government from too readily

‘sacrific[ing] speech for efficiency.’ ” Id. at 2534 (quoting Riley v. National

Federation of the Blind of N.C., Inc., 487 U.S. 781, 795 (1988) (brackets in original).

Likewise, the FEC’s Naming Prohibition censors substantially more speech

than necessary. For example, while a Facebook Page name like “Huckabee for

President” or “Mike Huckabee 2016” could theoretically confuse some inexperienced

Facebook users, the Naming Prohibition bans an infinite variety of nonconfusing,

accurate names that PACs may wish to someday employ like “Mike Huckabee Fans,”

“Socialists for Bernie Sanders,” “Youth for Rand Paul,” or “An Unauthorized

Committee to Elect Hillary.”1

 Each name implies a third party’s interest in the

candidate. As in McCullen, there are many substantially less restrictive ways to

accomplish the same end of avoiding fraud or confusing Facebook users. Most

obviously, a ban on genuinely misleading names like “Huckabee’s Campaign” and

arguably confusing names like “Mike Huckabee 2016” could accomplish the same

end. If existing requirements proved inadequate (and there is no evidence of such

1

 The first three of these examples are real Facebook Fan Pages. The fourth illustrates

that the Naming Prohibition would ban even a title that includes a disclaimer.

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USCA Case #15-5264 Document #1590287 Filed: 12/23/2015 Page 21 of 34
inadequacy), the FEC could, for example, require social media profile or cover photos

to contain disclaimers in readable font that the page is not approved by the candidate.

The government in this case has not proven a need for any social media or

Internet address naming restrictions at all. Social media pages like Facebook and

Twitter already protect users from confusing official pages of public figures with the

pages of imitators or similarly named individuals or organizations. On Facebook,

political committees use what is known as a “Fan” Page to promote candidates. 

Unlike Facebook users’ personal profiles, “Fan Pages can be viewed by anyone who

visits them” and “are created with a specific focus—such as a corporate brand, place,

organization, or public figure—allowing fans of that subject to express support for or

interest in the topic.” Mattocks v. Black Entm’t Television LLC, 43 F. Supp. 3d 1311,

1314-15 (S.D. Fla. 2014). Supporters of public figures or products often start Fan

Pages to spread information or share appreciation with other fans. See, e.g., id. (Fan

started Page to share her love for a television show with other fans).

Importantly, “Facebook treats officially sponsored Fan Pages differently than

unofficial Fan Pages,” which are operated by fans of products or public figures. Id.

at 1315. For example, official pages of public figures are denoted with a conspicuous

blue checkmark next to their name. See Verified Page or profile, Facebook Help

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USCA Case #15-5264 Document #1590287 Filed: 12/23/2015 Page 22 of 34
Center.2

 Likewise, Twitter uses a verification process “whereby a Twitter account

receives a blue check icon to indicate” that Twitter has confirmed the identity of the

public figure. See The Twitter glossary, Twitter Help Center.3

 Moreover, if a public

figure discovers an existing account on either Twitter or Facebook that appears to

masquerade as the figure, both social media outlets have means by which the public

figure can request to shut down those pages and transfer the followers to his or her

official Facebook Fan Page or Twitter page. See How do I report a fake account

that’s pretending to be me?, Facebook Help Center;4 Impersonation policy, Twitter

Help Center.5

 That said, public figures often welcome unofficial fan pages because

they offer free publicity and outreach. See, e.g., Amprewave Media, Create a Social

Media Strategy.

6

In spite of Facebook’s verification feature, the trial court found persuasive the

government’s exhibit of Facebook comments on the I like Mike Huckabee page that

“appear to be directed to Governor Huckabee himself.” The government relied on that

exhibit for evidence that Facebook users are having difficulty discerning PAC pages

2

 https://www.facebook.com/help/196050490547892

3

 https://support.twitter.com/articles/166337

4

 https://www.facebook.com/help/174210519303259

5

 https://support.twitter.com/articles/18366

6

 http://www.amprewave.com/guides/social-media-strategy/

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USCA Case #15-5264 Document #1590287 Filed: 12/23/2015 Page 23 of 34
from those of candidates and their campaigns. But even a passing understanding of

how individuals actually interact on Facebook undermines that argument. For

example, Harry Potter’s official Facebook page, which has over 73 million fans, is

dedicated to promoting fictional books and movies.7

 Yet, fans regularly direct

comments to the fictional characters in the series. (E.g., numerous fans commented

on a photo of a young Harry Potter posted on December 11, saying things like “Merry

Christmas, Mr. Potter” and “I miss you, Harry.” Another fan wrote “I love your

movies. Seriously, I wish that I [could] meet you someday, but that is not possible.”)8

That doesn’t mean they think Harry Potter or Hermione or other characters are real

people and they are viewing those characters’ personal Facebook pages. Rather, these

kinds of interactions are known in psychology as “parasocial interactions.” Parasocial

interactions are one-side interactions with celebrities, fictional characters, or public

figures like political candidates. Sara E. Branch, et al., Committed to Oprah, Homer,

or House: Using the Investment Model to Understand Parasocial Relationships, 2

Psychology of Popular Media 96, 100 (2013).9

 Anyone who yells advice to a

quarterback in a televised football game or mutters a warning to a fictional character

7

 https://www.facebook.com/harrypottermovie/

8

 https://www.facebook.com/harrypottermovie/photos/a.461447939312.243308.156794164312/

10153781162539313/?type=3&theater

9

 http://docs.lib.purdue.edu/cgi/viewcontent.cgi?article=1066&context=psychpubs

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USCA Case #15-5264 Document #1590287 Filed: 12/23/2015 Page 24 of 34
in a book is engaging in a parasocial interaction. See id. Just as people speak to real

and fictional people on television sets, knowing they cannot be heard, users of social

media often address comments to public figures and fictional characters on social

media and fan pages, never expecting a response. See id. at 20; Jonathan Cohen,

Mediated Relationships and Social Life: Current Research, Fandom, Parasocial

Relationships, and Identification, Media and Social Life 144 (2014) (ed. Mary Beth

Oliver and Arthur A. Raney).10 Accordingly, the FEC’s “evidence” of Facebook

comments on the I like Mike Huckabee page shows only that the Petitioner’s Facebook

page successfully fosters support for Huckabee by eliciting emotional reactions about

Mike Huckabee by sharing information about him. The FEC has no evidence of

confusion to support its Naming Prohibition.

B. The Restriction Fails To Leave Open Adequate

Alternative Channels for Communication

For a time, place, and manner restriction to be upheld, the government must

show that remaining channels provide a “practical substitute” and permit speakers to

reach their audience “nearly as well” as the foreclosed one. City of Ladue, 512 U.S.

at 57. The Naming Prohibition fails to leave open adequate alternative channels,

because domain names (i.e., website addresses) and social media page names are

uniquely important and have no substitute. See id.

10 https://books.google.com/books?id=9EssAwAAQBAJ&printsec=frontcover#v=onepage&q&

f=false

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USCA Case #15-5264 Document #1590287 Filed: 12/23/2015 Page 25 of 34
A social media page name or website domain name is similar to a doorway or

a business sign posted at the door. See, e.g., What’s in a Twitter Name? Everything

that You Can Fit into It, I Teach Blogging (descriptive Twitter handles inform users

what kind of information to expect at that account).11 Many people will not bother to

enter the doorway in the first place if a business’s sign does not suggest it will have

the kind of content they are seeking. If a tattoo parlor were not allowed to display its

purpose outside of the walls of its business, or use words like “tattoo parlor” to

advertise its services, then potential customers would never glance past the doorway.

Likewise, social media names and website addresses affect whether individuals will

visit webpages and access the content therein. See, e.g., Bradley Glonka, 8 Facts

About Choosing the Right Domain Name, Huffington Post, Apr. 2, 2015 (choosing

keywords that communicate your brand can improve ranking on search engines and

can be worth significant monetary investments);12 Improving PPC Search Engine

Campaign Results Using Generic Domain Names, Memorable Domains (study

comparing whether users click on website advertisements concluded that users were

more likely to click on the domain name closest to the product they searched for);13

11 http://iteachblogging.com/whats-twitter-name-everything-can-fit/

12 http://www.huffingtonpost.com/bradley-glonka/8-facts-about-choosing-th_b_6976450.

html

13 http://www.memorabledomains.co.uk/ppcanalysis.pdf

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USCA Case #15-5264 Document #1590287 Filed: 12/23/2015 Page 26 of 34
Gina Carr, How to Name Your Facebook Page—5 Keys to Getting Found.

14 Using

keywords that interested individuals type into search engines (like Google or Bing)

also significantly improves the website’s position in a list of search results. Supra

Glonka; Google’s 200 Ranking Factors: The Complete List, BackLinko, Dec. 21,

2015.15

The searchability of page names also affects the success of social media pages.

On Facebook, for example, users can search for political candidates and fan pages in

support of particular candidates by using the candidate’s name in Facebook’s own

search bar. See Search FYI: Find What the World is Saying With Facebook Search,

Facebook Newsroom, October 22, 2015 (Facebook promotional video shows how

people use the search function to find out more about topics of interest).16 Someone

interested in Mike Huckabee could type his name in the search bar and quickly find

two pertinent pages—his verified page (indicated with the blue checkmark) and the

now unused page, I Like Mike Huckabee, belonging to Pursuing America’s Greatness. 

Likewise, a Facebook user could find a variety of fan pages by searching “Mike

Huckabee for President,” “Mike Huckabee 2016” or using other relevant keywords. 

14 http://ginacarr.com/2012/09/find-us-on-facebook-how-to-name-your-facebook-page-so-you

-can-be-found/

15 http://backlinko.com/google-ranking-factors

16 https://newsroom.fb.com/news/2015/10/search-fyi-find-what-the-world-is-sayingwith-facebook-search/

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USCA Case #15-5264 Document #1590287 Filed: 12/23/2015 Page 27 of 34
In fact a good page title can be just as important as good content. See Himabindu

Lakkaraju, et al., What’s in a Name? Understanding the Interplay Between Titles,

Content, and Communities in Social Media, AAAI Conference on Weblogs and Social

Media at 311 (2013)17 (title has significant impact on popularity of social media

posts). Practically speaking, it would never occur to individuals who are not already

familiar with the PAC in this case to search out a generic name like “Pursuing

America’s Greatness” to find content about Mike Huckabee. Accordingly, foreclosing

political committees from using a candidate’s name in a Facebook page title

extinguishes one of the major ways that interested users can find PACs’ social media

speech.

In City of Ladue, the Supreme Court overturned a city’s ban on residential

signs, because there were no “adequate substitutes.” 512 U.S. at 56. Though the

ordinance allowed individuals to post signs on vehicles, or to use hand-held signs, or

to employ other mediums like handbills, flyers, or newspaper advertisements, the

Court held those mediums were inadequate substitutes for a sign in a yard or on a

home window. Id. “Displaying a sign from one’s own residence often carries a

message quite distinct from placing the same sign someplace else, or conveying the

same text or picture by other means.” Id. Residential signs implicitly “provide

17 http://www.aaai.org/ocs/index.php/ICWSM/ICWSM13/paper/viewFile/6085Hima

bindu/6370

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USCA Case #15-5264 Document #1590287 Filed: 12/23/2015 Page 28 of 34
information about the identity of the ‘speaker.’ ” Id. They are an “unusually cheap

and convenient form of communication” that “may have no practical substitute.” Id. 

at 57. Moreover, residential signs allow individuals to easily reach their neighbors

with their message. Id.

Just as prohibiting yard signs fails to leave open adequate channels, so too does

prohibiting use of a candidate’s name in a website address or social media page title

fail to leave adequate substitutes for political committees who wish to use the Internet

to advocate specific candidates. The Internet and especially social media are likewise

“ ‘unusually cheap and convenient form[s] of communication’ that ‘may have no

practical substitute.’” See City of Ladue, 512 U.S. at 57. Voters increasingly rely on

the Internet, especially social media, to seek information about candidates. Between

January 1 and October 7 of this year, “68 million people in the U.S. had more than a

billion ‘interactions’ about the presidential campaign.” James Niccolai, Is Facebook

the New Political Townhall?, PC World, Nov. 5, 2015.18 Sixty-one percent of

American Millenials (19 to 34-year-olds) get their political news from Facebook more

than any other source. Amy Mitchell, et al., Millennials and Political News, Social

Media—the Local TV for the Next Generation?, Pew Research Center, June 1, 2015.19

18 http://www.pcworld.com/article/3001842/software-social/is-facebook-the-new-political-townhall.html

19 http://www.journalism.org/2015/06/01/millennials-political-news/

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USCA Case #15-5264 Document #1590287 Filed: 12/23/2015 Page 29 of 34
The FEC’s rule severely interferes with political committees’ ability to access and

educate social media and Internet users in a cheap and efficient manner. Internet

addresses and social media page names serve a unique purpose, for which there is no

practical substitute. Accordingly, the FEC rule fails to leave open adequate alternative

channels.

The lower court failed to grasp the importance of page names and website

addresses, likening the restriction to the buffer zone around polling places in Burson

v. Freeman, 504 U.S. 191 (1992), or limitations on the length of a parade in Christian

Knights of the Ku Klux Klan Invisible Empire, Inc. v. D.C., (KKK), 919 F.2d 148, 151

(D.C. Cir. 1990). Pursuing Am.’s Greatness, 2015 WL 5675428, at *13. But neither

comparison is apt. Most obviously, the Naming Prohibition does not require someone

to move their “I like Huckabee” sign beyond the boundaries of a relatively small

buffer, where they will likely encounter the same traffic. Because the Naming

Prohibition forecloses political committees’ ability to target and attract certain

audiences to hear their message, it is more analogous to a miles-wide buffer zone

around a polling place, which the Court in Burson implied would be unconstitutional.

See Burson, 504 U.S. at 208, 210 (“The real question then is how large a restricted

zone is permissible or sufficiently tailored. . . . [A]t some measurable distance from

the polls, of course, governmental regulation of vote solicitation could effectively

become an impermissible burden . . . .”). Likewise, the Naming Prohibition does not

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USCA Case #15-5264 Document #1590287 Filed: 12/23/2015 Page 30 of 34
require someone to use a shorter, but still reasonably conspicuous parade route

through the heart of Washington, D.C. Instead, the Naming Prohibition is more

analogous to banning demonstrators from scrawling a candidate’s name on a sign at

a parade, but allowing the same demonstrators to use the name inside a leaflet. Many

individuals interested in that candidate would reject a leaflet from a group whose

mission is unclear from its signs.

Moreover, in KKK, the D.C. Circuit later overturned the government’s

limitation over the parade route as an unconstitutional content-based prohibition. See

Christian Knights of the Ku Klux Klan Invisible Empire, Inc. v. D.C., 972 F.2d 365,

375 (D.C. Cir. 1992). And in Burson, the Supreme Court permitted the buffer zone,

only because the government’s evidence proved a long history of voter intimidation

in spite of various attempts to prohibit it. “Voter intimidation and election fraud . . .

are difficult to detect” and the alternative of increasing police presence to prevent the

intimidation would be counterproductive, because “law enforcement officers generally

are barred from the vicinity of the polls to avoid any appearance of coercion in the

electoral process.” Burson, 504 U.S. at 207-208. The buffer still allowed candidates

to send their message to individuals headed to the polls, but the government could

protect voters with an approximately 15-second buffer to walk to and from the polls

alone.

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USCA Case #15-5264 Document #1590287 Filed: 12/23/2015 Page 31 of 34
CONCLUSION

The FEC’s Naming Prohibition is a content-based restriction that regulates

substantially more speech than necessary to achieve its goals, and fails to leave open

adequate alternative channels. This court should grant the injunction.

DATED: December 23, 2015.

Respectfully submitted,

 /s/ Christina M. Martin 

CHRISTINA M. MARTIN

Fla. Bar No. 0100760

D.C. Circuit Bar No. 56427

Pacific Legal Foundation

8645 N. Military Trail, Ste. 511

Palm Beach Gardens, FL 33410

Telephone: (561) 691-5000

Facsimile: (561) 691-5006

E-mail: cmm@pacificlegal.org

Counsel for Amici Curiae

Pacific Legal Foundation and

James Madison Center for Free Speech

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USCA Case #15-5264 Document #1590287 Filed: 12/23/2015 Page 32 of 34
CERTIFICATE OF COMPLIANCE

Certificate of Compliance with Type-Volume Limitation,

Typeface Requirements, and Type Style Requirements

1. This brief complies with the type-volume limitation of

Fed. R. App. P. 32(a)(7)(B) because:

GT this brief contains 4,910 words, excluding the parts of

the brief exempted by Fed. R. App. P. 32(a)(7)(b)(iii), or

G this brief uses a monospaced typeface and contains [state the

number of] lines of text, excluding the parts of the brief exempted

by Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5)

and the type style requirements of Fed. R. App. P. 32(a)(6) because:

GT this brief has been prepared in a proportionally spaced typeface

using WordPerfect X7 in 14-point Times New Roman, or

G this brief has been prepared in a monospaced typeface using

[state name and version of word processing program] with

[state number of characters per inch and name of type style].

DATED: December 23, 2015.

 /s/ Christina M. Martin 

CHRISTINA M. MARTIN

Fla. Bar No. 0100760

D.C. Circuit Bar No. 56427

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USCA Case #15-5264 Document #1590287 Filed: 12/23/2015 Page 33 of 34
CERTIFICATE OF SERVICE

I hereby certify that on December 23, 2015, I electronically filed the foregoing

BRIEF AMICUS CURIAE with the Clerk of the Court for the United States Court of

Appeals for the District of Columbia Circuit by using the appellate CM/ECF system.

I certify that all participants in the case are registered CM/ECF users and that

service will be accomplished by the appellate CM/ECF system.

Jason Torchinsky

Holtzman Vogel Josefiak Torchinsky PLLC

45 North Hill Drive, Suite 100

Warrenton, VA 20186

Email: jtorchinsky@hvjlaw.com

Counsel for Pursuing America’s Greatness

Charles P. Kitcher

Erin R. Chlopak

Kevin A. Deeley

Federal Election Commission

999 E Street, NW

Washington, DC 20463

Email: echlopak@fec.gov

 ckitcher@fec.gov

 kdeeley@fec.gov

Counsel for the Federal Election Commission

 /s/ Christina M. Martin 

CHRISTINA M. MARTIN

Fla. Bar No. 0100760

D.C. Circuit Bar No. 56427

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