recognizing that lists of donors are “the product of time-consuming, 18 labor-intensive activities that can cost a political committee thousands, even millions, of dollars” (internal quotation marks omitted)
How later courts described this case
- recognizing that lists of donors are “the product of time-consuming, 18 labor-intensive activities that can cost a political committee thousands, even millions, of dollars” (internal quotation marks omitted)
- assuming without deciding that intermediate scrutiny rather than rational- basis review applied
Written by the judges who cited it.
The opinion
BUCKLEY, Circuit Judge,
concurring:
In my view, this case involves property, not speech. The International Funding Institute (“IFI”) seeks the uncompensated use of lists of names and addresses compiled at considerable cost by private parties. The Federal Election Campaign Act, however, recognizes that those lists have economic value, and it protects the reporting committees’ exclusive proprietary interest in them by forbidding their use by third parties “for the purpose of soliciting contributions or for commercial purposes.” 2 U.S.C. § 438 (a)(4).
The protection afforded the committees in this manner does not interfere with IFI’s freedom of speech. Moreover, an elementary respect for property and a fair reading of the First Amendment suggest that IFI has no more right to convert such a list to its own commercial uses than Thomas Jefferson would have had to steal the quill from which he fashioned the pen with which he wrote the Declaration of Independence. A list of names and addresses has no more direct a relationship to speech than a goose feather had to the Declaration. Each can be put to uses that may facilitate the production of speech; neither is speech itself.
*1120 At some point, the link between speech and an alleged restraint on expression becomes too tenuous to support a constitutional claim. IFI would have us extend the reach of the First Amendment beyond reason when it asks us to sanction what would otherwise be an act of piracy. By forbidding its appropriation of the lists for its own commercial purposes, the statute protects the reporting committees’ proprietary interests against unwarranted infringement.
I agree with Judge Randolph that treating the lists as property provides reason enough to find section 438(a)(4) constitutional. It is on this basis that I concur in the majority’s judgment.