[00:00:01] Speaker 00: Case number 15 is 5264, Pursuing America's Greatness, Appellant versus Federal Election Commission, Office of General Counsel. [00:00:09] Speaker 00: Ms. [00:00:09] Speaker 00: Kurkinski for the appellant, Ms. [00:00:12] Speaker 00: Kichert for the appellate. [00:00:40] Speaker 02: Thank you for this report. [00:00:40] Speaker 02: I'm Jason Torchinsky with Holtz & Bowe, Josef Yakin Torchinsky here on behalf of Pursuing America's Greatness. [00:00:46] Speaker 02: We're here today because pursuing America's greatness can't speak how it wants, but its opponents can. [00:00:52] Speaker 02: This Court just recently affirmed the constitutional value of free speech when it decided Van Hollen v. FEC, and the Federal Election Commission comes before you today asking this Court to approve its role as censor of certain speech by certain entities because of the content of the speech and the identity of the speaker. [00:01:08] Speaker 02: This is the sort of government action that the Supreme Court has repeatedly warned against. [00:01:12] Speaker 05: Today, the FEC, in expanding the reach of this... Excuse me, Mr. Trichin, we actually have a rule that statements aren't to be read, so if you could... [00:01:22] Speaker 05: speak to us instead of reading your statement. [00:01:24] Speaker 02: That would be appreciated. [00:01:25] Speaker 02: Thank you. [00:01:26] Speaker 02: Sure. [00:01:26] Speaker 02: No problem, Your Honor. [00:01:27] Speaker 02: So today, Your Honor, the FEC, in expanding its prohibition, seeks to regulate the social media and internet identifiers that political action committees choose to use. [00:01:39] Speaker 02: This is just a classic example of how the government is attempting to regulate the content of speech. [00:01:44] Speaker 03: So they say it's all part of a disclosure regime. [00:01:47] Speaker 02: They do, Your Honor. [00:01:49] Speaker 02: But we think that that's not correct. [00:01:52] Speaker 02: The Supreme Court in Reed v. Town of Gilbert tells us when you're looking at a government restriction on speech, the first thing you do is look at the text of what the statute of regulation says. [00:02:03] Speaker 02: Here it says you can use certain names in projects or programs unless it includes a clear opposition. [00:02:11] Speaker 02: And that, Your Honor, is where the district court went wrong. [00:02:13] Speaker 02: The district court skipped, because the FEC came in and said, our justification for this is that it's part of the disclosure and disclaimer regime, the district court skipped the analysis that the Supreme Court said you have to do in these cases, which is look at the text and look at the challenged government action on its face first. [00:02:29] Speaker 04: And in this case, on — [00:02:35] Speaker 04: challenging that. [00:02:36] Speaker 04: In fact, you don't have standing the challenge. [00:02:39] Speaker 02: No, Your Honor, we're not challenging the statute. [00:02:41] Speaker 02: Pursuing America's greatness doesn't include the name of the candidate. [00:02:46] Speaker 02: Right, we're not challenging the statute. [00:02:47] Speaker 02: We're challenging the regulation as applied here to social media identifiers and internet website and internet website URLs. [00:02:56] Speaker 02: So this is an as-applied challenge. [00:02:58] Speaker 04: This is not a challenge to the underlying statute because PAC does not include... When you were complaining, you made a representation that the situations on Twitter or Facebook or the web were not being used, would not be used to raise money. [00:03:18] Speaker 02: That is exactly what Pursuing America's Greatness said. [00:03:21] Speaker 02: They said that they would not be raising money at these web pages. [00:03:24] Speaker 04: All right. [00:03:24] Speaker 04: So now we're faced with a situation where Mr. Huckabee is no longer a candidate. [00:03:32] Speaker 04: And the only representation we have about whether this case involves financial fundraising is the one in a complaint that's no longer valid. [00:03:43] Speaker 04: So where do we look to find out whether, in fact, the case is as narrow as it was before Mr. Huckabee withdrew? [00:03:52] Speaker 02: Your Honor, I think you can look to the – in response to the suggestion that was filed by the FEC, we filed a response that included an affidavit from the executive director of Pursuing America's Greatness that indicates that the organization intends to continue operating, intends to continue advocating for candidates, and continues to [00:04:10] Speaker 02: seek to be able to do what it said it was going to do with respect to Mr. Huckabee, but just now with respect to other candidates. [00:04:22] Speaker 02: I don't know if we specifically mentioned it in fundraising, Your Honor, but it's consistent with the... Well, that's the question. [00:04:29] Speaker 04: I think you would agree that the strongest argument that the Commission has is that there would be confusion and perhaps fraud in fundraising activities. [00:04:41] Speaker 04: And you reply and say that there can be, or the commission says that there can be fraud and confusion in matters other than fundraising. [00:04:54] Speaker 04: So we don't know at this moment, we don't have a representation that these other candidates that your organization is going to support would involve fundraising activity. [00:05:07] Speaker 02: Your Honor, I guess I would get back to whether it does or does not. [00:05:11] Speaker 02: Even if Padden wanted to pursue fundraising on these pages, it's still a content-based restriction on speech that's not permissible. [00:05:19] Speaker 04: The FEC's concern about- There are plenty of content-based restrictions on speech that are totally permissible. [00:05:25] Speaker 04: Have you ever read the National Labor Relations Act? [00:05:28] Speaker 04: Yes, Your Honor. [00:05:29] Speaker 04: And that's, it deals with speech and it deals with picketing and so on and so forth. [00:05:34] Speaker 04: So long as it's related to a labor dispute. [00:05:38] Speaker 04: But you're not claiming that the National Labor Relations Act is unconstitutional. [00:05:44] Speaker 02: No, Your Honor, we're not challenging that. [00:05:45] Speaker 02: What we're challenging here is the FEC saying, if you like a candidate, you can't put up a website that says, I like name of candidate. [00:05:55] Speaker 02: But if you don't like the candidate, you can come in and say, [00:05:58] Speaker 05: I don't like candidate X. But you agree, don't you, that our case law has said that we will give more deference to the government when there is confusion that might be fraudulent, right? [00:06:12] Speaker 05: And fundraising is sort of the wheelhouse of that, right? [00:06:15] Speaker 02: Well, except that, Your Honor, in some of the fundraising cases where the Supreme Court has looked at sort of restrictions on charitable fundraising, the government said, you can't just blanket say, you can't do this. [00:06:26] Speaker 02: You've got to come up with some narrowly tailored response. [00:06:29] Speaker 05: And, Your Honor, are these new sites going to be involved in fundraising? [00:06:33] Speaker 05: But, Your Honor, we don't intend to be... Was that just a mistake in the affidavit? [00:06:35] Speaker 02: We do not intend to be, Your Honor. [00:06:37] Speaker 02: That was probably our omission from the affidavit on our part that we could cure. [00:06:40] Speaker 05: It's a pretty critical distinction, though. [00:06:41] Speaker 05: I mean, fundraising seems to be one of your strongest arguments about the Huckabee site, was that there was no fundraising involved. [00:06:49] Speaker 05: Just voter confusion is the only issue, and our case law has been skeptical of voter confusion when it comes to forming opinions. [00:06:59] Speaker 05: We haven't been skeptical about voter confusion when it comes to fundraising. [00:07:02] Speaker 05: There seems to be a rather significant oversight. [00:07:05] Speaker 02: Your Honor, if we omitted that from the affidavit and the court finds that to be critical, we could submit a revised affidavit. [00:07:10] Speaker 02: In this case, the suggestion of muteness was filed, you know, five days before oral argument, and we were both preparing for argument and preparing a reply at the same time. [00:07:20] Speaker 02: So if we omitted that from the affidavit, we could go back and get a revised affidavit. [00:07:26] Speaker 04: Your organization is incorporated in Arkansas? [00:07:29] Speaker 02: Yes. [00:07:29] Speaker 04: Do the articles of incorporation mention that its purpose is to support Mr. Tuckaby? [00:07:37] Speaker 02: I do not believe the articles of pursuing American greatness mention Mike Tuckaby. [00:07:42] Speaker 02: Not at all. [00:07:42] Speaker 04: They're not in the appendix here, are they? [00:07:46] Speaker 02: I do not believe it is, Your Honor, but it's a public document. [00:07:52] Speaker 02: So. [00:07:54] Speaker 02: I mean, Your Honors, getting back to the guidance that the Supreme Court gave in reading Tom Gilbert, when you look here at what the government is doing, they're looking at the content of your speech. [00:08:06] Speaker 02: And they're saying, if you take this viewpoint, you can't speak this way. [00:08:10] Speaker 02: But if you take this other viewpoint, you can. [00:08:11] Speaker 02: And for that reason, Your Honors, we believe that this needs to be enjoined. [00:08:15] Speaker 02: This is what the FEC calls a total ban on speech. [00:08:19] Speaker 02: And that is just not permissible. [00:08:21] Speaker 02: As Amiki pointed out, particularly on the internet, if you're trying to attract someone to your website or to your Facebook page or to your Twitter handle, the content, the words, the combination of letters that make up words that make up those URLs and those social media identifiers are critical in someone being able to even locate your page in the first place. [00:08:43] Speaker 02: And with respect to the FEC's arguments about preventing confusion, there's a whole other section of FECA, as this court pointed out, in common cause that requires certain disclaimers and disclosures that should alleviate any need for confusion. [00:08:58] Speaker 02: And in fact, this court pointed that out in two different footnotes in common cause. [00:09:05] Speaker 04: Do they have to be in a certain spot in the body of the whatever text? [00:09:11] Speaker 04: And they have to be a certain size and a certain color? [00:09:14] Speaker 02: The disclaimers are pretty well regulated. [00:09:17] Speaker 02: There's not a regulation with respect to the location, but it has to be in the communication. [00:09:24] Speaker 02: For video, it says there has to be a reasonable degree of color contrast. [00:09:30] Speaker 02: And for print ads, it has to be at least a ballpoint font. [00:09:33] Speaker 02: And it has to be contained within a text box. [00:09:36] Speaker 04: Do the disclaimer requirements apply to a situation where the posting on whatever site is in opposition to a candidate? [00:09:48] Speaker 02: The disclaimer requirements apply regardless of whether you're for a candidate, against a candidate, neutral on a candidate. [00:09:54] Speaker 02: The disclaimer requirements apply to any political committee. [00:09:57] Speaker 02: In this particular case, the restriction applies only to unauthorized committees, which is just one subclass of political committees, and also doesn't apply to corporations that aren't political committees, groups that aren't political committees that make independent expenditures, or even individuals. [00:10:14] Speaker 02: In other words, when PAG took over the I Like Mike Huckabee [00:10:18] Speaker 02: website from the LLC in Los Angeles that owned it, that LLC was not restricted by this. [00:10:25] Speaker 02: This only became illegal when, well, it wasn't, this advisory opinion hadn't been issued when it took over the contract, but from the time that advisory opinion was issued, if that, [00:10:36] Speaker 02: If that web address had never been acquired from the LLC, the LLC could have kept doing it. [00:10:41] Speaker 02: It was only because of the identity of the speaker, in this case an unauthorized committee, that it became subject to the FEC's speech ban. [00:10:50] Speaker 02: And that's why, Your Honors, we think the District Court went wrong. [00:10:52] Speaker 02: The District Court totally skipped the content-based analysis, said, oh, well, you know, the FEC said it's part of our disclosure regime, so we're just going to skip the whole content-based analysis. [00:11:02] Speaker 02: and go right to an intermediate level of scrutiny. [00:11:04] Speaker 02: And we pointed out in our reply brief, Minnesota Concerned Citizens for Life, where the Eighth Circuit said, look, this is not a legislative labeling exercise. [00:11:14] Speaker 02: You actually have to look at what they did in the first place. [00:11:17] Speaker 02: And here, what they did was create a regulation that determines, based on the content of your speech, whether you may speak in the way you want or not. [00:11:26] Speaker 02: And here on our house, I think it's a little bit different – I mean, I'm not a Labor Relations Act expert, but, you know, in this case, they're actually looking and saying, if you oppose it, you can say it, but if you support it, you can't. [00:11:36] Speaker 02: And that's where we think the FEC went wrong and why pursuing America's greatness is entitled to its injunction. [00:11:42] Speaker 02: And with that, I think I've reserved three minutes for rebuttal. [00:11:52] Speaker 01: Good morning. [00:11:53] Speaker 01: Good morning, Your Honors. [00:11:54] Speaker 01: Charles Kitcher for the FEC. [00:11:55] Speaker 01: May it please the Court. [00:11:57] Speaker 01: The District Court's decision denying a preliminary injunction to the appellant should be affirmed. [00:12:02] Speaker 01: The District Court correctly determined that with respect to the likelihood of success on the merits, the appellant wasn't likely to succeed on the merits because the regulation at issue in this case is part of FECA's disclosure program. [00:12:13] Speaker 01: It's a disclosure regulation. [00:12:15] Speaker 01: And this court, the Supreme Court, and Congress have all overwhelmingly approved of the FECA requirements and the FEC regulations that allow the public and help the public understand who is behind the election. [00:12:29] Speaker 05: It really tells us to look at the text, right? [00:12:32] Speaker 05: And you look at the text and distinction is here based on content. [00:12:39] Speaker 05: How do we get beyond that? [00:12:41] Speaker 05: Reid's changed things, right? [00:12:42] Speaker 01: Your Honor, I disagree. [00:12:43] Speaker 01: I don't believe Reid has changed things. [00:12:46] Speaker 01: The Supreme Court's decision in Reid was a signed case. [00:12:50] Speaker 01: It did not mention disclosure rules. [00:12:52] Speaker 01: It did not mention campaign finance disclosure rules in particular. [00:12:56] Speaker 01: There's almost 40 years of jurisprudence, Supreme Court jurisprudence, from Buckley Villaleo to Citizens United. [00:13:03] Speaker 01: holding that the standard for scrutiny, constitutional scrutiny, with respect to FICA's disclosure requirements is intermediate scrutiny. [00:13:10] Speaker 01: And surely, if the Supreme Court in Reed were attempting to overrule that sub silencio, it would have mentioned it. [00:13:17] Speaker 03: But I don't understand the disclosure label to this precise ban. [00:13:22] Speaker 03: It's a ban on words. [00:13:24] Speaker 03: We don't usually call that disclosure requirement. [00:13:27] Speaker 01: It is disclosure, Judge Kavanaugh, and the reason it's disclosure is because what it's disclosing is the candidate's authoriz- the committee's authorization status. [00:13:36] Speaker 01: There's an easier way to disclose it. [00:13:37] Speaker 03: Yeah, you do a disclaimer then. [00:13:40] Speaker 01: Well, but Congress concluded that in order to prevent confusion and to adequately disclose to the public the sources behind election-related speech, [00:13:49] Speaker 01: that committees needed to follow the name requirement and the disclaimer requirements. [00:13:54] Speaker 01: And this is no different from the disclaimer requirement that runs at the end of a television ad that says, for example, I'm Mike Huckabee and I approve this message. [00:14:02] Speaker 04: And whatever happened to the First Amendment principle that protected anonymous speech, like the Federalist Papers? [00:14:11] Speaker 01: The First Amendment principle that's at issue in this case is whether the appellant can use a name of a candidate. [00:14:19] Speaker 01: It's not trying to do anonymous speech. [00:14:21] Speaker 01: It's trying to speak in a way that uses the candidate. [00:14:24] Speaker 01: It's trying to speak to the public using a name that is the candidate's name and, as the record below demonstrates, is likely to confuse the public about who is speaking. [00:14:35] Speaker 03: But it's core political speech to say, I like [00:14:40] Speaker 03: a particular political candidate or official. [00:14:43] Speaker 03: That's at the core of the First Amendment. [00:14:46] Speaker 05: And the candidate's name is at the core of the decision to vote. [00:14:50] Speaker 03: Yeah, you can't communicate your message without saying the person's name. [00:14:55] Speaker 01: But of course Pursuing America's Greatness has communicated its message. [00:14:59] Speaker 01: As the FEC noted when it passed this regulation, the committee is free to say throughout its communication [00:15:06] Speaker 01: in highlighted font, in highlighted text that it supports. [00:15:12] Speaker 05: We're in the digital age. [00:15:14] Speaker 05: The way you find out who are the supporters out there is you do a Google search or you do a Facebook page search, and it's the title. [00:15:21] Speaker 05: It's not going to be in the text. [00:15:22] Speaker 05: It's the title. [00:15:23] Speaker 05: What I don't understand is if disclosure is so critical here, it seems to me there's some very easy ways to handle that. [00:15:30] Speaker 05: And that is to say on your I like Mike page, the very first thing that you have to come up and say, [00:15:36] Speaker 05: This is not an authorized campaign. [00:15:38] Speaker 05: Why? [00:15:38] Speaker 01: Well, I have several responses to that. [00:15:41] Speaker 01: First, Your Honor, the F.B.C., the Commission, unanimously and bipartisanly approved this requirement, and when this was at the rule-making stage... I'm sorry, what is that supposed to mean? [00:15:51] Speaker 01: Well, they're the experts. [00:15:52] Speaker 01: I mean, with respect to... They're the experts in what? [00:15:55] Speaker 01: They're the experts in campaign finance regulation. [00:15:57] Speaker 05: And we're the experts in the First Amendment, the Constitution. [00:16:00] Speaker 01: Of course, Your Honor. [00:16:01] Speaker 01: But the FEC considered whether or not other type of disclosures were sufficient, whether bolder disclosures were sufficient. [00:16:08] Speaker 01: And the type of regulation that Your Honor is requiring is, in fact, really no different from the type of regulation that's issued here. [00:16:14] Speaker 01: Because when you compel a committee to say one thing, for example, in a type of disclaimer box like Your Honor is describing, [00:16:22] Speaker 01: The committee can't say something else. [00:16:24] Speaker 01: For example, if you have to say that your ad is an unauthorized ad, you can't say that it is authorized. [00:16:30] Speaker 01: That's the essence of disclosure. [00:16:32] Speaker 01: You have to honestly disclose what's going on. [00:16:34] Speaker 04: If they're barred from saying, I like Mike Huckabee in their name, they can say that in the text, right? [00:16:44] Speaker 04: Absolutely. [00:16:45] Speaker 04: So why doesn't that cause confusion? [00:16:49] Speaker 04: It may cause confusion, but Your Honor... But you can't regulate it, and the reason you can't regulate it is because what? [00:16:57] Speaker 01: I was going to say that the FEC deals in a First Amendment sensitive area, and the fact that it hasn't [00:17:04] Speaker 01: come up with a, you know, a cudgel to abate regulation doesn't mean that its regulation isn't narrowly tailored. [00:17:10] Speaker 01: The FEC has for decades attempted to narrowly tailor this regulation as closely as possible. [00:17:16] Speaker 01: That's why in 1994 it enacted the opposition exception upon which Palance relies so heavily. [00:17:23] Speaker 01: That opposition exception was [00:17:25] Speaker 01: enacted or passed so that out of recognition that the oppositional name, you know, I loathe my country. [00:17:33] Speaker 05: Do you agree that our concern about voter confusion is not as significant when we're not dealing with fundraising? [00:17:40] Speaker 01: Well, that's a good question, Your Honor. [00:17:43] Speaker 05: Thank you. [00:17:45] Speaker 01: The court below found that even in the absence of a direct solicitation, like the instances presented in this case, notwithstanding whether the affidavit is deficient, the court found that there could be instances of fundraising abuse even in that context. [00:18:01] Speaker 01: Because committees could take advantage, even if they're not actively or directly soliciting funds, they can take advantage and exploit confusion about their names. [00:18:09] Speaker 04: And that's especially so. [00:18:11] Speaker 04: Was there any evidence put on to verify? [00:18:12] Speaker 01: Sure, well, as we cited in our merits brief, the actor Daniel Craig, for example, was famously apparently confused about a committee that had the word, the name Bernie in its name. [00:18:26] Speaker 01: He thought he was contributing to the authorized Bernie. [00:18:29] Speaker 04: No, but that was a fundraise. [00:18:31] Speaker 04: Right. [00:18:32] Speaker 04: Judge Griffith asked you about situations that didn't involve fundraising. [00:18:38] Speaker 04: Your reply was even then it could lead to fundraising. [00:18:41] Speaker 04: And my question, and the district court so found or whatever, my question is what evidence is there of that? [00:18:47] Speaker 01: We haven't actually conducted discovery in the case because it's on a smaller evidence. [00:18:52] Speaker 05: And aren't we traditionally skeptical of arguments that [00:18:56] Speaker 05: that allow the government to regulate in – you call this a First Amendment-sensitive area. [00:19:02] Speaker 05: I agree with Judge Kavanaugh's description – core political speech. [00:19:07] Speaker 05: We're a little skeptical of government citing voter confusion when it comes to regulating core political speech, unless [00:19:16] Speaker 05: there's the threat of fraud or corruption, right? [00:19:20] Speaker 05: Because where would be the limits on that? [00:19:22] Speaker 05: Then we have the FEC deciding how voters are confused about opinions and represent... I mean, there's no limit to that. [00:19:31] Speaker 01: No, Your Honor. [00:19:32] Speaker 01: In Citizens United, eight justices agreed with the disclosure ruling, which... That was disclosure. [00:19:38] Speaker 03: That was forcing you to speak, not preventing you from speaking, which strikes me as quite a bit different. [00:19:45] Speaker 01: Well, our position in this case is that the regulation is disclosure. [00:19:49] Speaker 01: That's how it was held by this court in the Common Cause case, which specifically said that the statutory provision is disclosure, and here the regulation is disclosure. [00:19:59] Speaker 01: some disclosure requirements, like the requirement to state whether or not an ad is authorized or not, or that it has to be on the screen for four seconds, or that the font has to be a certain size. [00:20:10] Speaker 01: All of those requirements, by definition and function, preclude not doing those things. [00:20:16] Speaker 03: So what about a book? [00:20:18] Speaker 03: Oh, I like Mike Huckabee's book. [00:20:20] Speaker 03: Could the government [00:20:23] Speaker 03: banned such a title of a book consistently with the First Amendment? [00:20:26] Speaker 01: No, as we said in our brief, Your Honor, the title of a book, I Like Mike Huckabee by Pursuing America's Greatness, does not fall under the regulation because... Well, I know it's not under the regulation, but would your theory of the First Amendment... Of course not. [00:20:41] Speaker 03: And why not? [00:20:41] Speaker 01: Because the title of a book is not the name under which a committee is conducting its activities, which is the special project definition in the regulation. [00:20:53] Speaker 01: By contrast, the commission has specifically found that operation of a political committee's website, like in the Newton Watch AO advisory opinion, the commission did determine that that is the way in which the political committee is interacting with the public. [00:21:08] Speaker 01: And as the district court found, it would be improper to conclude that a committee could vitiate the name identification requirement by having a formal registered name with the FEC and then going out into the real world and interacting with the public under a name under which it's doing business or under which it's connected. [00:21:26] Speaker 04: How about a website that was hillarythemovie.com? [00:21:32] Speaker 04: That's prohibited? [00:21:34] Speaker 01: I'm not sure I understand, what would be the website would be by a political committee? [00:21:40] Speaker 04: No, no, no, an unauthorized committee and the website is hillarysamovie.com. [00:21:47] Speaker 04: during an election campaign. [00:21:48] Speaker 01: It would depend on whether the website would be viewed as a special project of the committee, and under the Newt Watch advisory opinion. [00:21:56] Speaker 04: That is, I mean, the Hillary movie was Citizens United. [00:22:00] Speaker 01: Right, but Citizens United wasn't a political committee, and so the movie itself wasn't a special project under which it was conducting its activities. [00:22:09] Speaker 01: Citizens United produced the movie. [00:22:11] Speaker 04: So an organization that's not a political committee can do all of that. [00:22:17] Speaker 01: But in this context, what's the definition of a political committee? [00:22:27] Speaker 01: A political committee meets the standard for political committee if it meets the expenditure or contribution requirements of the Act 30101A4, I believe. [00:22:37] Speaker 01: That's the contribution definition, and if it has the major purpose of the election or nomination of a candidate, that's the major purpose test that Buckley-Vigaleo found constitutionally required. [00:22:52] Speaker 01: But especially on this point about Reid, which is really the centerpiece of Appellant's case, [00:22:59] Speaker 01: I want to be clear that that case does not purport to overrule the intermediate scrutiny that applies to FICA's disclosure requirements. [00:23:09] Speaker 01: As the Supreme Court said in Whitman v. American Trucking, Congress doesn't hide [00:23:15] Speaker 01: elephants and mouse holes. [00:23:17] Speaker 01: And this court has also found that the Supreme Court doesn't hide elephants and mouse holes. [00:23:22] Speaker 01: Citizens United and Buckley and McConnell are not obscure cases. [00:23:25] Speaker 05: So do you disagree with this, that Reid told us how to make the distinction, how to figure out if something is content-based regulation, right? [00:23:34] Speaker 05: And it said, you pick up the text and look at it on its face. [00:23:37] Speaker 05: I think that's the gravamen of your opponent's argument. [00:23:40] Speaker 01: That is exactly the gravamen. [00:23:42] Speaker 05: So when you pick up the regulation, look in his face, [00:23:45] Speaker 05: Does it distinguish between types of communication based on their content or not? [00:23:49] Speaker 05: That's not the end of the inquiry. [00:23:51] Speaker 05: But that step of the inquiry, when you pick up the regulation, look at its face. [00:23:56] Speaker 01: If it is a content-based restriction, yes. [00:23:59] Speaker 01: But our argument is that it's not. [00:24:00] Speaker 05: The way you find out if it's a content-based distinction is you pick it up and look at it. [00:24:06] Speaker 05: That's the first step in READ, right? [00:24:08] Speaker 05: And when we do that, just the first step, not the end of the inquiry, what do we find? [00:24:12] Speaker 01: But as Judge Randolph was pointing out, there are all kinds of disclosure requirements. [00:24:16] Speaker 05: But what do we find when we look at this regulation? [00:24:19] Speaker 01: That the regulation restricts the use of names. [00:24:24] Speaker 05: It distinguishes between types of communication based on their content. [00:24:27] Speaker 05: That may not be the end of the inquiry, but that's an important part of the inquiry that Reid tells us we have to make. [00:24:33] Speaker 01: I don't think Reid does tell the court that it has to make that inquiry, because the Supreme Court, in all these other decisions which have not been overruled, [00:24:40] Speaker 01: holds that to evaluate the constitutionality of a disclosure requirement, the court applies intermediate scrutiny, and exacting scrutiny requires an important interest in a substantial relation. [00:24:50] Speaker 01: I happen to believe that we can satisfy strict scrutiny in this case. [00:24:53] Speaker 01: It's not fatal, but it doesn't apply, because the Supreme Court was... How can you satisfy strict scrutiny in this case? [00:25:00] Speaker 01: To satisfy strict scrutiny, one needs a compelling interest. [00:25:03] Speaker 05: How can you satisfy it here? [00:25:05] Speaker 01: We can satisfy it on the basis of the Supreme Court's pronouncement in Burson v. Freeman that preventing confusion surrounding elections constitutes a compelling governmental interest. [00:25:16] Speaker 01: Not misleading the public, not defrauding the public, all qualify as critical. [00:25:21] Speaker 01: The most compelling. [00:25:21] Speaker 04: If that's true, then you can regulate the content [00:25:24] Speaker 04: of the text that accompanies the Facebook post or the Twitter post? [00:25:31] Speaker 01: Or a lot of speeches, right? [00:25:32] Speaker 01: I believe that goes to the tailoring, right, Your Honor? [00:25:35] Speaker 01: And with respect to tailoring, the Eastern District of Virginia found that the name regulation as it exists is the least restrictive means. [00:25:42] Speaker 01: That's the strict standard of scrutiny. [00:25:45] Speaker 01: And we can meet that, because the FEC has rebounded by [00:25:50] Speaker 05: the learning decisions of the Eastern District of Virginia? [00:25:53] Speaker 01: No, Your Honor. [00:25:53] Speaker 01: My point was only to say that the only two courts that have considered Reed's applicability to this case, to this requirement, have concluded that Reed doesn't apply. [00:26:01] Speaker 01: And that's the result that we urge because we don't believe that the Supreme Court intended to overrule. [00:26:08] Speaker 04: I am rather confused. [00:26:11] Speaker 04: We talked about confusion. [00:26:12] Speaker 04: I'm kind of confused about why this is a disclosure requirement, as Judge Cavanaugh said. [00:26:16] Speaker 04: Because you pick it up, and if it says, I don't like Mike Huckabee, that's fine. [00:26:23] Speaker 04: But if it says, I like Mike Huckabee, that's illegal. [00:26:28] Speaker 04: Now, why isn't that content discrimination? [00:26:31] Speaker 04: I don't get it. [00:26:32] Speaker 01: It's disclosure, Your Honor, because in the context of the former, where it's, I don't like Mike Huckabee, what's being communicated is that this is not Mike Huckabee speaking. [00:26:42] Speaker 01: What the record below showed is that people were actually confused about whether this Facebook page was speech made on Mike Huckabee's behalf or not. [00:26:50] Speaker 04: When there isn't that kind of- Well, what if it says children for Mike Huckabee? [00:26:55] Speaker 04: Well, would people confuse that and think it's Mike Huckabee talking? [00:26:59] Speaker 01: Well, the commission has determined that the use of the candidate's name does have this potential to mislead the public, even particularly the elderly. [00:27:06] Speaker 04: And the commission's also determined that it's not just the candidate's name, it's what is said in conjunction with the candidate's name. [00:27:14] Speaker 04: And if what's said in conjunction with the candidate's name is I, or steel workers for Mike Huckabee, then [00:27:24] Speaker 04: Why is that illegal? [00:27:28] Speaker 01: It's not. [00:27:28] Speaker 01: The commission has determined that the use of the candidate's name under any operation that the committee is using has this potential for confusion and fundraising abuse in all of these contexts. [00:27:41] Speaker 01: And that the name identification requirement, as this court said in common cause, works in tandem with the other disclosure provisions of the act, like 52 USC 30120. [00:27:52] Speaker 01: I see my time is up, but I would urge the court to, and if there are no further questions, we urge the court to affirm the district court's decision. [00:27:59] Speaker 05: Thank you. [00:27:59] Speaker 01: Thank you. [00:27:59] Speaker 05: Thank you very much. [00:28:01] Speaker 05: Mr. Trotsinski, I believe you have three minutes. [00:28:08] Speaker 02: First of all, Your Honor, I just want to stress again that in working with my client on this matter, my client has not fundraised on these pages and doesn't intend to, and we will be providing a supplemental affidavit to that effect. [00:28:20] Speaker 02: Second, with respect to truth and confusion, we've got two Supreme Court cases that are relatively recent. [00:28:25] Speaker 02: There's the Ohio Elections Commission case and the Alvarez case, both of which the Court said the First Amendment trumps over government efforts to [00:28:32] Speaker 02: not have voters confused or people misled. [00:28:35] Speaker 02: I mean, Alvarez obviously was the Stoll and Ballard case, and the Ohio Elections Commission was the case about whether or not the Ohio Elections Commission could regulate the truth of statements made in political campaigns. [00:28:44] Speaker 02: Judge Griffith, with respect to your question about whether the disclaimer requirements essentially can cure any confusion, I would point you to, and I will not read it since you asked me not to, footnotes 21 and 22 of the common cause decision that looked at the original version of the regulation implementing the statute pretty plainly addresses this court's concerns and this court's statements that the disclosure [00:29:08] Speaker 02: that can be attached to these web pages and that is required to be attached to these web pages should address... What about Reid? [00:29:15] Speaker 05: It seems to me Reid is your strongest argument and your opponent has said Reid just doesn't apply here. [00:29:21] Speaker 02: Your Honor, we see nothing in the text of Reid that says that it doesn't apply. [00:29:24] Speaker 02: They say, well, it's only limited to directional signs, but... [00:29:27] Speaker 02: I mean, it wasn't an election case, right? [00:29:30] Speaker 05: It was not an election case, Your Honor. [00:29:31] Speaker 05: And we have shown – the Supreme Court has shown a proclivity to highly regulate political speech, right? [00:29:39] Speaker 05: That is true, Your Honor. [00:29:40] Speaker 05: So why shouldn't – why shouldn't [00:29:43] Speaker 02: This case the outside of read in that in that regard you are nothing in a reading case that it's cabin to particular subject matters It's the First Amendment and if you look at how other courts have applied read since the read decision was issued it's been applied by the Fourth Circuit to override a ban on political robocalls in South Carolina and [00:30:01] Speaker 02: It's been applied by district courts to strike down prohibitions on ballot selfies, which are related. [00:30:06] Speaker 02: That's where you try to take a picture of yourself with your ballot. [00:30:09] Speaker 02: Uh, states have prohibited that. [00:30:10] Speaker 02: District courts in at least two states have struck that down. [00:30:13] Speaker 02: The Ninth Circuit has relied on, on, on read in, um, [00:30:18] Speaker 02: to the stolen Baller Act. [00:30:22] Speaker 02: So there's lots of context where courts have gone beyond the signed context. [00:30:26] Speaker 02: There's nothing in READ that says, no, READ applies except to cases involving elections. [00:30:31] Speaker 02: And, Your Honor, I guess our biggest reason that we think that what the FEC is trying to tell you doesn't make sense in light of READ is that this whole regulation [00:30:40] Speaker 02: is not about disclosure or disclaimer. [00:30:42] Speaker 02: There is no words that I can put on the page, no document that I can file with the FEC that allows my client to use the website, I Like Mike Huckabee. [00:30:49] Speaker 02: It's a flat ban. [00:30:51] Speaker 02: And that's why this is not a disclosure or disclaimer requirement. [00:30:54] Speaker 02: And with that, Your Honors, I see that my time is up. [00:30:56] Speaker 02: Great. [00:30:57] Speaker 02: Thank you very much.