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Media Alerts - Pursuing America's Greatness v. FEC
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August 2, 2016
  Pursuing America's Greatness v. FEC
Headline: D.C. Circuit strikes FEC regulation restricting unauthorized political committees' use of candidates' names

Area of Law: First Amendment

Issue Presented: Whether an FEC regulation barring unauthorized political committees from using candidates' names in support of candidates but permitting unauthorized political committee use of candidates' names against candidates violates the First Amendment.

Brief Summary: Pursuing America's Greatness (PAG), an unauthorized political committee supportive of presidential candidate Mike Huckabee, sought to use Huckabee's name on its website and social media pages in apparent violation of an FEC regulation, 11 C.F.R. ยง 102.14(a), which allowed unauthorized political committees to use candidates' names against but not in support of, political campaign projects. PAG sought a preliminary injunction on APA and First Amendment grounds. The United States District Court for the District of Columbia denied PAG's motion, and PAG timely appealed.

The United States Court of Appeals for the District of Columbia Circuit reversed on First Amendment grounds and remanded with instructions that the district court enter the preliminary injunction. The court first decided that the challenged rule was a ban on speech, rather than a disclosure requirement, because it prevented PAG from conveying information to the public. The court next concluded that the rule was a content-based restriction because it drew distinctions on its face based on whether PAG sought to communicate support or lack of support for a candidate. Following the Supreme Court's decision in Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015), the court concluded that where, as here, the rule by its terms discriminates based on content, a court must apply strict scrutiny even where the government articulates the benign motive of avoiding voter confusion. Assuming that preventing voter confusion was a compelling state interest, the court concluded that the FEC had not shown that its speech ban was the least restrictive means of achieving that interest. The court noted that the FEC had not demonstrated that use of disclaimers in place of the overall ban would be less effective at curing fraud or abuse and concluded that, where the record is silent as to the comparative ineffectiveness of a far less burdensome alternative, the burdensome restriction could not withstand strict scrutiny.

Having found a likely First Amendment violation, the court next concluded that PAG had demonstrated likely irreparable injury and that the public's interest in protecting First Amendment rights outweighed any interest in continued enforcement of the regulation.

For the full text of the opinion, please visit$file/15-5264-1628137.pdf.

Panel: Griffith, Kavanaugh, and Randolph

Author of Opinion: Circuit Judge Griffith

Argument Date: February 23, 2016

Date of Issued Opinion: August 2, 2016

Docket Number: No. 15-5264

Decided: Reversed and remanded.

Counsel: Jason Torchinsky for Appellant. Charles Kitcher, Daniel A. Petalas, Kevin Deeley, and Erin Chlopak for Appellee.

Circuit: D.C. Circuit

Case Alert Author: Elizabeth Earle Beske

    Posted By: Ripple Weistling @ 08/02/2016 02:49 PM     DC Circuit  

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