Recent Free Speech Victories in Federal Courts

By James Bopp, Jr.
NRLC General Counsel

Even as the United States Supreme Court is considering still another challenge to the free speech rights of advocacy groups such as NRLC, there is the encouraging news that three recent federal court cases have upheld the First Amendment rights of pro-life speakers to enter the political marketplace of ideas. These cases join dozens of other pro-life victories in the free-speech wars.

FEC v. Christian Coalition

In one of the most closely watched and eagerly anticipated decisions in years, a federal judge completely exonerated the Christian Coalition of charges made by the Federal Election Commission (FEC) that it had violated federal election laws by " coordinating" distribution of its voter guides with the Bush/Quayle '92 campaign. Under federal law, money spent on activities that are "coordinated" with a candidate are considered a contribution to the candidate. The Christian Coalition is prohibited from making any contributions to federal candidates because it is a corporation.

Many FEC-watchers viewed the FEC's pursuit of the coalition as a test-case for the expansion of FEC jurisdiction over issue- oriented groups. In its unsuccessful effort to fine the Christian Coalition tens of thousands of dollars, the FEC employed the vast resources of the federal government to attempt to prove "coordination."

In this all-out effort, the FEC conducted a wide-ranging, in-depth investigation of the relationships among coalition officers and employees and the state and national campaign staffs of Bush/ Quayle '92. As evidence of alleged "coordination," the FEC offered every contact, meeting, and appearance that took place from 1990 through 1992 between coalition officers and President Bush, Vice President Quayle, White House officials, and campaign staff, including hundreds of phone calls from the coalition to the White House and campaign headquarters.

It even deposed former President Bush, former Vice President Quayle, and Christian Coalition founder Dr. Pat Robertson, and delved into the decades-long friendship between President Bush and Dr. Robertson, which began when their fathers were both United States senators.

Despite these frequent contacts between the coalition and the Bush/Quayle campaign, U.S. District Court Judge Joyce Hens Green ruled that the FEC had failed to prove that the Christian Coalition had done anything improper. Coordination, she ruled, requires "[s]ubstantial discussion or negotiation" over a communication's contents, timing, location, mode, intended audience, and distribution. "Substantial discussion or negotiation is such that the candidate and spender emerge as partners or joint venturers in the expressive expenditure."

The court's decision was a major victory for the coalition. Moreover, Judge Hens Green's ruling recognizes that the First Amendment protects the right of all issue-oriented groups to associate with candidates during campaigns, so long as the issue group maintains control over its own spending. Neither the federal government nor state governments may limit how much money a group can spend to discuss issues or a candidate's record on issues simply because the group associates with or communicates with a candidate.

Iowa Right to Life Committee, Inc. v. Williams

In Iowa Right to Life, Inc. v. Williams, the Eighth Circuit Court of Appeals in St. Louis joined the First, Second, Fourth, and Ninth Circuits in ruling that the First Amendment forbids governments from regulating all but a narrow variety of political advertisementsthose that in express or explicit words advocate the election or defeat of a clearly identified candidate.

While this standard was unequivocally announced by the Supreme Court in Buckley v. Valeo over 20 years ago, numerous attempts have since been made to expand government regulation over constitutionally protected "issue advocacy," a term which refers to discussion of the positions of political figures on issues.

In July of 1998, the Iowa Campaign Ethics and Disclosure Board adopted a regulation that would have prevented the Iowa Right to Life Committee (IRLC) from distributing its voter guides before the November 1998 election. The regulation purported to define "express advocacy," but did not depend on the presence of express words of advocacy in the voter guides to trigger state regulation as required by the First Amendment.

It focused instead on whether those who read the voter guides could reasonably infer which candidates IRLC would prefer to be elected. IRLC sued the state and the district court issued a preliminary injunction in October, which allowed IRLC to distribute its voter guide.

Typical of many voter guides, IRLC's October 1998 voter guide tabulated candidates' responses to several questions; for example, "Do you support the reversal of Roe v. Wade?" The voter guide stated, "A 'yes' response indicates agreement with the position of the Iowa Right to Life Committee."

According to the Iowa regulation, these voter guides would have been banned because IRLC happens to be incorporated (as a non-profit, ideological corporation) and corporations are forbidden in Iowa from spending money on "express advocacy."

The Eighth Circuit, however, ruled that the regulation was unconstitutional: "There is no way for IRLC to know ahead of time whether its speech does or does not meet the definition . . . . The possible intent and effect attributed to the speech creates uncertainty. Questions of intent and effect,

however, are to be excluded from the analysis, since a speaker, in such circumstances could not safely assume how anything he might say would be understood by others." The court reaffirmed that the First Amendment requires a bright-line distinction between fully protected discussion about candidates and their positions on issues (on the one hand) and more pointed exhortations to vote for a particular candidate (on the other hand).

Volle v. Webster

In Volle v. Webster, the District Court of Maine ruled that an individual who wished to spend more than $50 to advocate passage of a ballot measure banning partial-birth abortions could not constitutionally be required to register and report as a "political action committee." As the court recognized, the Maine statute would have required the individual who wished to erect a sign on his lawn to register with the state, open a separate bank account, appoint a treasurer, and disclose all of his personal bank accounts and assets. The court ruled that these heavy burdens could not be imposed by the state of Maine on the individual consistent with the protections afforded by the First Amendment.

Conclusion

No area of state or federal law has greater potential to hamstring the pro-life movement than restrictive "campaign finance" laws. Whether intended or not, they operate to silence pro-life voices. Pro-life speakers must remain vigilant to prevent their voices on behalf of the unborn from being silenced.