Petition for Writ of Certiorari — Chamber of Commerce v. Vollor

Supreme Court of the Anited States

CHAMBER OF COMMERCE OF

THE UNITED STATES OF AMERICA,

Petitioner,

Vv

HON. FRANK G. VOLLOR,

Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of Mississippi

PETITION FOR WRIT OF CERTIORARI

JAN WITOLD BARAN

Counsel of Record

THOMAS W. KIRBY

WILEY, REIN & FIELDING

1776 K Street, N.W.

Washington, DC 20006

(202) 719-7000

Of counsel: MICHAEL B. WALLACE

STEPHEN A. BOKAT PHELPS DUNBAR, L.L.P.

General Counsel 200 S. Lamar Street

U.S. CHAMBER OF COMMERCE ~— Suite 500, Skytel Centre

1615 H Street, N.W. Jackson, MS 39225

Washington, DC 20062 Counsel for Petitioner

ARNT PCLT ONAN ERT REL A AC ENNIS IE COMES REA I em

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 - WASHINGTON, D. C. 20001

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“ —-~ Sm rn te ee a ~~ nen.

——— —_~ see oe eee ee

QUESTIONS PRESENTED

1. Does a temporary injunction barring the broadcast of

advertisements because they mention a political candidate

violate the First Amendment to the United States

Constitution?

2.Does the First Amendment standard of “express

advocacy” as defined in Buckley v. Valeo and FEC vy.

Massachusetts Citizens for Life require words that expressly

advocate the election or defeat of a clearly identified

candidate?

(i)

ii

CORPORATE DISCLOSURE STATEMENT

The Chamber of Commerce of the United States was

incorporated in the District of Columbia in 1916. It is a non-

profit, non-stock corporation, exempt from taxation under

ILR.C. § 501(c)(6).

TABLE OF CONTENTS

COUIEEE B SECS FORMING BEEP ccrececcccccsnsecberecenesccnesstocesenete

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

pr fi gos 5 |_| ana nnee eee

CARs Ge FF RENE TEED ‘ccsncsticicinchnccesinpevinenczecneenciss

OPINIONS AND ORDERS BELOW ....00.0.......cccceseesees

Fe BR acccternnennentneqeaphtnccqnatansonpamnneatinnscentenesensoes

TRO POURIGE Bs THIRTY ....cccccscccecoccccsccceccccnsecescoesosecs

The Petition Presents A Live Controversy..............

The Petition Challenges A Final Ruling................

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ...........ccccccccccssccscccseccssceees

STATEMENT OF THB CASE. ....cccccoccosccccescscsoscsccescesece

PE RAIS OD Te GS cccecccsizescscesncserecccsecccnsecccee

Appeals, Additional TROs, And Motions To

REASONS FOR GRANTING THE WRIT ..............00

A. Prior Restraints Against Political Speech Are

A Growing And Disturbing Practice That

Requires This Court’s Review ...........ccscssssceesees

B. The Standard Of “Express Advocacy” On

Which The Prior Restraint Rests Is An

Important Constitutional Issue On Which

Federal And State Courts And Agencies Are

12

15

21

iV

TABLE OF CONTENTS—Continued

PEPE EPI cocenssesesesecsinssesntatinniaansititiptaitenmiantuinanenntti

November 3, 2000, Order Of The Supreme Court Of

RIOTS accacerecesseonssoensnennvenmbaninianeanesiibeapeemananmmeiaiannia:

November 3, 2000, Order Of The Chancery Court Of

The First Judicial District Of Hinds County,

Mississippi Granting Plaintiffs’ Motion For

Temporary Restraining Order ..............c..scccssesssssesessseees

November 6, 2000, Order Of The Supreme Court Of

The United States Re: Temporary Restraining Order

Granted By The Chancery Court Of the First Judicial

District Of Hinds County, Mississipp1.............:.sssseessee

November 6, 2000, Order Of The Supreme Court Of

The United States Re: Temporary Restraining Orders

Granted By The Chancery Court Of Harrison County,

Mississippi And By The Chancery Court Of The First

Judicial District Of Jones County, Mississippi..............

November 7, 2000, Order Of The Supreme Court Of

The United States Re: Temporary Restraining Order

Granted By The Chancery Court Of The First Judicial

District Of Hinds County, Mississipp1...............sssscseee

November 2, 2000, Memorandum Opinion And Order

Of The United States District Court For The Southern

BRSUSECE COE DICIRONIIE cciscanscctniesenicctiievenisitininsensiisnbinitiiniie

January 23, 2001, Final Judgment Of The United

States District Court For The Southern District Of

IIIT ciseccnssiisnnasaisiinciicincsntdesnusdaainsssbalbasdieuahaiiisiiiashanne

Mississippi Election Statutes (Excerpts)............ssssesce

November 3, 2000, Chamber Motion For Stay Of

Proceedings Pending Disposition Of Petition For

Interlocutory Appeal (Attachments Omitted) ................

2a

Sa

6a

Ta

8a

v

TABLE OF CONTENTS—Continued

Transcript Of The November 3, 2000, Proceedings

Held In The Chancery Court Of The First Judicial

District Of Hinds County, Mississippi (Excerpts).........

November 4, 2000, Temporary Restraining Order Of

The Chancery Court Of Harrison County,

DORI -seincdnestnisisnisnstecilanehechisiensshniiiatshasiseniesighneatia’

November 5, 2000, Temporary Restraining Order Of

The Chancery Court Of The First Judicial District Of

Jones County, MiSSisSippi...............ccscccssccssrcescsssscserseess

November 6, 2000, Order Granting Plaintiff’s Motion

For-Temporary Restraining Order Of The Chancery

Court Of The First Judicial District Of Hinds Couniy,

DMIGRISDIGE oicccecccecascsassssssssasenustinssstsscsisitivecistuaicatetaiate

November 3, 2000, Application For Temporary

Restraining Order In The Chancery Court Of Hinds

County, Mississippi (Attachment Omitted) ...............00.

November 6, 2000, Application For Temporary

Restraining Order And Preliminary Injunction

CPR CIEE onccdbctehsiecserihcitsieketicsivhiicthitethateaiinibiniiiednta

62a

65a

vi

TABLE OF AUTHORITIES

CASES Page

Alexander vy. United States, 509 U.S. 544

(FE cesneenesenseniinetatiins saomnetien 13

Buckley v. Valeo, 424 U.S. 1 (1976)... ponsnenscuesnsneuaese passim

Chamber of Commerce of the United States of

America v. Moore, No. 3:00-cv-778WS (S.D.

Dias. INOY. 2, Dee eprsccccccecnscessscssintaccscesesenevteetust passim

Citizens for Responsible Gov't State Political

Action Committee v. Davidson, Nos. 99-1414

et al., 2000 WL 1902427 (10th Cir. Dec. 26,

Common Cause/Ohio v. U.S. Chamber of

Commerce, No. 2000E-058 (Ohio Elections

C§oommmn "en BRGV. ©, Fee cxnctessscessstiliistitantaasenesctution 19

Elections Board v. Wis. Mfrs. & Commerce, 597

IW .28 T21 CW is. IDF) cccecccccsccecssnccssesats 11, 14, 17, 18

Faucher v. FEC, F. Supp. 64 (D. Me. 1990) ......... 15

FEC vy. Christian Action Network, Inc., 110 F.3d

1049 (4th Cir. 1997).. j sleniedaadasheid 15, 16

FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987).... 16, 18

FEC v. Massachusetts Citizens for Life, 479 U. S.

ZFS CESEED corccesescsscecntcnssecicinensentnocsnnpusensinentiaasnaee passim

FEC v. Nat'l Org. for Women, 713 F. Supp. 428

CEB LL, BGR ecccscssescnerneresstenaperesnennesmnenaseunnens 16, 18

First Nat'l Bank of Boston v. Bellotti, 435 U.S.

FOS CRIP ED ensccrsrsccenczsscenreeseceszassestanensnnsseunshennansns 13

Florida Right to Life, Inc. v. Lamar, 2001 WL

SEB IGS (1 1a Cols, DEBT) acccressecevesscecsssscinceensscesteste 20

Florida Right to Life, Inc. v. Mortham, 1998 WL

ETSSIUST CED. FAR. TDG) cccccncccstessiesiecesenssecseee 19, 20

Freedman v. Maryland, 380 U.S. 51 (1965).......... 12

lowa Right to Life Comm., Inc. v. Williams, 187

F356 SES GOR Ca, TIGED ccccsecsapecennesesetnentsnesens 15

vii

TABLE OF AUTHORITIES—Continued

Local No. 438 Construction and General

Laborers’ Union v. Curry, 371 U.S. 542

(DGD ccensnsescttitiiche _—

Maine Right to Life Comm., Inc. v. FEC, 914 F.

Sea, S CE. RG Rs TED ccchecciicctstccensesnsinsssinstintios

Meyer v. Grant, 486 U.S. 414 (1988) .................0.

Moore v. Ogilvie, 394 U.S. 814 (1969)............0000

National Socialist Party v. Village of Skokie, 432

CEs SF CUT U Piccnccniccececsinenststedintddiatansssiniaibenbints

Nebraska Press Ass'n v. Stuart, 427 U.S. 539

New York Times Co. v. United States, 403 U.S.

TE COTE) ceteinsencrenortensnesiennssitinesiciataieiasnsniatnegn

Organization for a Better Austin v. Keefe, 402

A ED CEO T E Revnsntvincianacttacilbtticinstsinheimnianinnschan

Osterberg v. Peca, 12 S.W.3d 31 (Tex. 2000).......

Republican Party of Florida v. Florida Elections

Commission, 658 So. 2d 653 (Fla. Dist. Ct.

FE - EE O gusvenaniin

Right to Life of Dutchess County, Inc. v. FEC, 6

F. Supp. 2d 248 (S.D.N.Y. 1998)............cccccceeeee

Roe v. Wade, 410 U.S. 113 (1973)..........cccecseeeseeeee

Southern Pacific Terminal Co. v. ICC, 219 U.S.

Fe Oe Oi eect iineenniatnantientippnatiinnitnmmnimaninns

State ex rel. Crumpton v. Keisling, 982 P.2d3 |

RE a een

Vance v. Universal Amusement Co., 445 U.S.

Vermont Right to Life Committee v. Sorrell, 221

ee Oe es Be rcctsnecestenineineseenpaginninnse

Virginia Society for Human Life, Inc. v. FEC, 83

F. Supp. 2d 668 (E.D. Va. 2000) ...............ccceeeee

Weinstein v. Bradford, 423 U.S. 147 (1975)..........

Viii

TABLE OF AUTHORITIES—Continued

_ CONSTITUTION

ee ene

U.S. Const. amend. XIV, § 1 ..........sccccscccesscesseeeeees

STATUTES AND REGULATION

IB UBL. § 1IITS ietiencennennnn

Miss. Code Ann. § 23-15-801 (2000) ..........+s:s00

Miss. Code Ann. § 23-15-801(C) (2000)...........+0+++

Miss. Code Ann. § 23-15-801(e)(i) (2000).............

Miss. Code Ann. § 23-15-801(f)(i) (2000) ............

Miss. Code Ann. § 23-15-801(j) (2000) ...........+0++

Miss. Code Ann. § 23-15-803 (2000) ...........:s:0s00+

Miss. Code Ann. § 23-15-807 (2000) ...........:s:+00+

Miss. Code Ann. § 23-15-81 1 (2000) ..........s:sese00e

Miss. Code Ann. § 23-15-813 (2000) ..........s:ssse000

Miss. Code Ann. § 23-15-1021 (2000) ...........::000

Miss. Code Ann. § 97-13-15 (2000) .........sssssseseeees

Miss Code Ann. § 97-13-17 (2000) .........sscscscseseee

tke 2 EP OY |

MISCELLANEOUS

13 James Wm. Moore, Moore’s Federal Practice

EE CE, Fa i icicttneetacttsiinnienenanbibinticies

15A Charles Alan Wright, et al., Federal

Practice and Procedure, §3912 (2d ed.

Richard Briffault, Jssue Advocacy: Redrawing

the Elections/Politics Line, 77 Tex. L. Rev.

Fe Cite Paccesisintncsisasesncionnstinassisnanscinigesiititacitiniann

Allison Rittenhouse Hayward, Stalking the

Elusive Express Advocacy Standard, 10 J.L. &

PE, SE CIF cccesstiicsitinricanisssatincinisicdsstninpegucsennsne

Page

Ww WwW

ix

TABLE OF AUTHORITIES—Continued

Michael D. Leffel, Note, A More Sensible

Approach to Regulating Independent Expendi-

tures: Defending the Constitutionality of the

FEC’s New Express Advocacy Standard, 95

Mich. L. Rev. 686 (1996)............cc.cccsscsssssssecesees

Richard E. Levy, Defining Expréss Advocacy for

Purposes of Campaign Finance Reporting and

Disclosure Laws, 8 Kan. J.L. & Pub. Pol’y 90

Pee cisheicomedenmnesaneinnetetoietwtincmdenmmiaieeseinemainn

Glenn J. Moramarco, Beyond “Magic Words” :

Using Self-Disclosure to Regulate

Electioneering, 49 Cath. U. L. Rev. 107

Scott E. Thomas & Jeffrey H. Bowman, Is Soft

Money Here to Stay Under the “Magic

Words” Doctrine, 10 Stan. L. & Pol’y Rev. 33

CPI Wiscisiaiicaitinasiialbesielicintintestahibiiisiiadulbdtiieadeapiienieoes

The Associated Press, Court Lifts Ban on U.S.

Chamber Ads, Nov. 7, 2000, available at 2000

Ps TITUS cisdesinsstiidineioteninipbitatiiieienss initia

T.C. Brown, State Goes in Search of Political

Ads, The Plain Dealer, Nov. 7, 2000, at 1B........

20

20

20

The Chamber of Commerce of the United States of

America (“Chamber”) respectfully petitions for a writ of

certiorari to review the November 3, 2000, Judgment of the

Supreme Court of Mississippi that refused to stay the

November 3, 2000, Order Granting Plaintiffs’ Motion for

Temporary Restraining Order (“TRO”) against the Chamber’s

political speech.

OPINIONS AND ORDERS BELOW

The Order of the Mississippi Supreme Court (No. 2000-M-

01839) is at Appendix (“Pet. App.”) la. The Temporary

Restraining Order of the Chancery Court of the First Judicial

District of Hinds County, Mississippi (No. G-2000-2128 S/2)

is at Pet. App. 2a. The stays issued by Mr. Justice Scalia are

at Pet. App. 5a-7a. The November 2, 2000, Memorandum

Opinion and Order of the United States District Court for the

Southern District of Mississippi in Chamber of Commerce of

the United States of America v. Moore (No. 3:00-cv-778WS)

is at Pet. App. 8a. None of these opinions is officially

reported.

JURISDICTION

The jurisdiction of this court is invoked under 28 U.S.C.

§ 1257(a) (2000).

The Petition Is Timely

Both the Mississippi Supreme Court and the Hinds County

Chancery Court entered their orders on November 3, 2000.

The Petition Presents A Live Controversy

Respondent obtained the TRO at issue here on November

3, 2000, for the purpose of suppressing speech until the

election on November 7. The four days from November 3

to November 7 was not enough time for orderly review of

the merits. This timing is not unusual. The type of prior

restraint granted here naturally tends to be sought toward the

2

end of a campaign. But even if a restraint were sought

months prior to an election, orderly pre-election review

would seldom, if ever, be practical.’ The Chamber expects to

engage in similar speech during future elections in

Mississippi and elsewhere. Thus, it will remain exposed to

the same type of orders challenged here.

In short, this is a classic example of a case that is “capable

of repetition, yet evading review.” Southern Pac. Terminal

Co. v. ICC, 219 U.S. 498, 515 (1911). In such a situation

where “the challenged action [is] in its duration too short to

be fully litigated prior to its cessation or expiration” and

“there [is] a reasonable expectation that the same complaining

party would be subjected to the same action again,” this Court

will grant review despite traditional jurisdictional constraints.

Weinstein v. Bradford, 423 U.S. 147, 149 (1975); see also

Meyer v. Grant, 486 U.S. 414, 417 n.2 (1988); Moore v.

Ogilvie, 394 U.S. 814, 816 (1969).

The Petition Challenges A Final Ruling

The petition here challenges a final judgment.2 The

November 3 TRO gave Plaintiff all the relief he sought

(suppression of the Chamber’s speech until after the

' This Court has held, for example, that the typical human gestation

period is too short to allow orderly review on the merits by this Court.

Roe v. Wade, 410 U.S. 113, 125 (1973).

? See 15A Charles Alan Wright, et al., Federal Practice and

Procedure, § 3912 at 449-50 (2d ed. 1992) (“[I]f suit is brought solely for

the purpose of obtaining short-term injunctive relief, an order granting a

temporary restraining order may be found appealable as a final judgment

on the ground that it has effectively granted all the relief sought in the

action”); 13 James Wm. Moore, Moore’s Federal Practice § 65.41 (3d ed.

1997) (“the issue of appealability is not limited by the trial court’s

terminology”; “when the grant or denial of a temporary restraining order

may dispose of the action for injunctive relief, the grant or denial has been

held appealable”).

a

3

November 7 election), and the Mississippi Supreme Court’s

denial of a stay assured that the TRO would have its full

effect unless this Court intervened.

In prior restraint cases, this Court has taken a pragmatic

approach regarding finality. For example, in National

Socialist Party v. Village of Skokie, 432 U.S. 43 (1977) (per

curiam), a lower state court had enjoined a parade and the

Illinois Supreme Court had denied a stay. This Court treated

an application for a stay of a temporary injunction entered by

the Cook County Circuit Court as a petition for certiorari and

granted review, finding practical finality with respect to the

speech restriction because “the outstanding injunction will

deprive [the parade organizers] of rights protected by the First

Amendment during the period of appellate review.” Id. at 44.

Likewise, in Local No. 438 Construction and General

Laborers’ Union v. Curry, 371 U.S. 542 (1963), this Court

held final and reviewed a preliminary injunction against

picketing. See also Org. for a Better Austin v. Keefe, 402

U.S. 415 (1971) (reviewing a temporary injunction issued by

an Illinois circuit court and upheld by an Illinois appellate

court where the Illinois Supreme Court denied a motion for

leave to appeal); Neb. Press Ass'n v. Stuart, 427 U.S. 539

(1976) (Court review of a press gag order that had been

modified and remanded by the Nebraska Supreme Court).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The First Amendment to the United States Constitution

provides that Congress “shall make no law . . . abridging the

freedom of speech, or of the press.” U.S. Const. amend. L

The Fourteenth Amendment to the United States

Constitution forbids any State to “make or enforce any law

which shall abridge the privileges or immunities of citizens of

the United States” or to “deprive any person of life, liberty, or

property, without due process of law.” U.S. Const. amend.

XIV, § 1.

4

Mississippi Code Annotated Section 23-15-801 (2000)

defines various terms used in Mississippi’s election laws. It

defines an “Expenditure” as

any purchase, payment, distribution, loan, advance,

deposit, gift of money or anything of value, made by any

person or political committee for the purpose of

influencing any balloted measure or election for elective

Office ....

Miss. Code Ann. § 23-15-801(f)(i) (2000). The phrase “for

the purpose of influencing” also is used in the definition of a

“Political Committee,” § 23-15-801(c), and of “Contribu-

tion,” § 23-15-801(e)(i).

Section 23-15-801(j) defines “independent expenditure” as

“an expenditure by a person expressly advocating the election

or defeat of a clearly identified candidate which is made

without cooperation or consultation with any candidate.”

Section 97-13-15 defines “Prohibited __ political

contributions by corporations.” It forbids “any corporation,

incorporated company, or incorporated association” to “give,

donate, appropriate or furnish directly or indirectly, any

money, security, funds or property . . . in excess of One

Thousand Dollars ($1,000.00) per calendar year for the

purpose of aiding any political party or any candidate for any

public office.”

Section 23-15-1021 establishes “Judicial office donation

limits.” It makes it

unlawful for any individual or political action committee

. . . to give, donate, appropriate or furnish directly or

indirectly, any money, security, funds or property in

excess of .. . Five Thousand Dollars ($5,000.00) for the

purpose of aiding any candidate or candidate’s political

action committee for judge of the Court of Appeals or

justice of the Supreme Court.

5

The Mississippi statutes empower the Secretary of State to

assess civil penalties for violations. § 23-15-813. The

Attorney General is authorized to enforce such assessments.

Id. Also, criminal penalties are possible. §§ 25-15-811, 97-

13-17.

Relevant portions of the Mississippi election statutes

appear at Pet. App. 37a.

STATEMENT OF THE CASE

This case involves the first of four Mississippi state court

injunctions that barred the public broadcast of certain

Chamber advertising just before the November 7, 2000,

election. The four injunctions all were issued in reliance on a

U.S. District Court ruling stemming from the following

events.

Facts Leading to TRO #1

The November 7, 2000, Mississippi election included races

for four seats on the Supreme Court of Mississippi. The

Chamber, a non-profit organization that represents business

interests in dealing with all branches and phases of

government, produced several television advertisemenis that

it aired during the three weeks before the election. These

advertisements addressed issues and qualifications of

candidates, but did not contain any explicit words advocating

electoral action.

Shortly after the Chamber began running its ads,

Mississippi Secretary of State Eric Clark wrote to Mississippi

Attorney General Michael Moore asking him to take action

against the Chamber’s ads under Mississippi’s election

statutes. Seeking to clarify the legal situation, the Chamber

brought an action in the United States District Court for the

Southern District of Mississippi, Chamber of Commerce v.

Moore (Pet. App. 8a). The action named Attorney General

Moore and Secretary of State Ciark as defendants. It sought a

declaration that the Chamber’s ads did not include express

advocacy and, hence, were not subject to the Mississippi

statute.” Defendants argued in response that Mississippi

election law applied on the sole theory that the Chamber’s ads

“expressly advocate the election of the favored candidates for

the four Mississippi Supreme Court seats,” (Pet. App. 9a-

10a) and thus were “‘independent expenditures’ subject to the

reporting requirements” of Mississippi law. (Pet. App. 12a).

On November 2, 2000, United States District Court Judge

Henry T. Wingate issued a Memorandum Opinion and Order

in the Chamber’s declaratory judgment action (“Moore’’).

Judge Wingate explained that the Chamber’s ads were

independent speech, there being “no proof whatsoever of any

collaboration between the Chamber and the candidates

involved in the advertisements.” (Pet. App. 9a). Judge

Wingate also did not find any explicit language advocating

electoral action. His descriptions of the ads appear at Pet.

App. 14a-16a.

> Mississippi law imposes registration and disclosure requirements on

organizations that make “independent expenditures.” Miss. Code Ann.

§§ 23-15-803 & 23-15-807 (2000). Such independent expenditures must

~ be “expressly advocating the election or defeat of a clearly identified

candidate.” Jd. § 23-15-801(j). Mississippi law also restricts corporate

expenditures made “for the purpose of aiding any political party or any

candidate for any public office.” /d. §97-13-15. This statutory

framework is very similar to the language in the Federal Election

Campaign Act that this Court held applicable only to speech that “in

express terms advocate[s] the election or defeat of a clearly identified

candidate” by using language such as “vote for” or “elect” or “defeat.”

Buckley v. Valeo, 424 U.S. 1, 44 n.52 (1976) (per curiam). The defendant

state officials acknowledged that Mississippi’s election statutes apply only

to “express advocacy.” They argued, however, that the Chamber’s ads

were express advocacy because they clearly implied support of or

opposition to particular candidates.

7

Despite the absence of explicit language, Judge Wingate

ruled for Defendants, holding that the Chamber’s ads fell

within a “Broader Interpretation” of express advocacy. (Pet.

App. 23a, 30a-32a). He held that the Chamber advertise-

ments “offer thinly veiled exhortations to support the

campaigns of the aforesaid candidates, a plain, clever attempt

to avoid the reach of Mississippi reporting and disclosure

laws by eliminating those words listed at footnote 52 of

Buckley.” (Pet. App. 33a). The Judge acknowledged that his

ruling adopted a minority position as to what Buckley meant

by “express advocacy.” (Pet. App. 23a). Judge Wingate’s

ruling did not become final until he entered judgment on

January 23, 2001. (Pet. App. 34a), long after the events

described here.*

On Friday, November 3, 2000, Judge Frank G. Vollor, one

of the candidates for Mississippi Supreme Court Justice,

sought a temporary restraining order (“TRO”) from the

Chancery Court of the First Judicial District of Hinds County,

Mississippi. The Chamber’s counsel was advised of this fact

and summoned to a hearing less than an hour before the

motion was to be heard by the Chancellor. The Chamber’s

counsel did not receive the motion papers until he arrived at

the hearing.

Judge Vollor’s motion papers attached the Moore opinion,

asserting that it established that the Chamber’s ads were

“express advocacy” and, hence, subject to Mississippi’s

election statutes. (Pet. App. 66a). Judge Vollor offered no

evidence beyond that contained in the motion papers. The

Chamber’s counsel argued, inter alia, that the requested

injunction violated the First Amendment. (Pet. App. 56a).

* The Chamber is appealing this judgment to the U.S. Court of

Appeals for the Fifth Circuit.

8

Shortly after 4:00 p.m. on Friday, November 3, the

Chamber’s counsel received the Order Granting Plaintiffs’

Motion For Temporary Restraining Order (“TRO #1”) that is

the subject of this petition. (Pet. App. 2a). TRO #1 enjoined

both the Chamber and several television stations that had

carried Chamber ads. The theory of TRO #1 was that

Chamber television advertisements concerning the election

were express advocacy and, hence, were subject to regulation

under Mississippi’s election laws. TRO #1 banned

contracting to transmit or transmitting any television

advertisement, which is paid for or produced by the

Chamber of Commerce of The United States of

America, its agents, servants, or employees, concerning

the Central District election for the Supreme Court of

Mississippi between Jim Smith and Frank G. Vollor.

(Pet. App. 4a). The enjoined stations ceased broadcasting the

ads. See The Associated Press, Court Lifts Ban on U.S.

Chamber Ads, Nov. 7, 2000, available at 2000 WL

29038411.

The November 3 TRO provided that it would remain

effective for 10 days, well past the November 7 election.

Because counsel for the Chamber had been heard before TRO

#1 issued and the Chancellor had been advised of the

Chamber’s key defenses before he ruled, there was no

prospect of reconsideration before November 7. Thus, at the

trial court level, Plaintiff Vollor had obtained all of the relief

he sought.

Appeals, Additional TROs, And Motions To Stay

‘TRO #1 was issued on a Friday afternoon, less than an

hour before the Mississippi Supreme Court was to close for

the weekend. With only minutes to spare, the Chamber filed

emergency papers asking the Mississippi Supreme Court to

Stay and grant interlocutory review of TRO#1. The

Chamber’s papers contended that TRO #1 violated the First

Amendment. (Pet. App. 52a).

9

At approximately 6:00 p.m. the Mississippi Supreme Court

“denied” the stay application as “without merit.” (Pet. App.

la). The denial left the TRO in effect until after the election.

Thus, the Mississippi Supreme Court ruling gave Plaintiff all

the relief his papers sought.

The Chamber’s counsel immediately contacted the staff of

this Court by telephone to alert them that an application for

emergency stay was being prepared. The Chamber’s

November 4, 2000, Motion for Emergency Stay of a Prior

Restraint on Political Speech (No. 00A406) was delivered to

the Supreme Court on Saturday, November 4. On the

morning of Monday, November 6, 2000, Mr. Justice Scalia

issued an Order that TRO #1 “is stayed pending the timely

filing and disposition of a petition for writ of certiorari.”

(Pet. App. Sa).

By the time Mr. Justice Scalia granted a stay, two other

Mississippi candidates for Supreme Court Justice had

persuaded two other Mississippi judges to enter similar

orders, one on Saturday, November 4 (“TRO #2”), and the

other on Sunday, November 5 (“TRO #3”), forbidding

Chamber advertising concerning those candidates. These

orders (Pet. App. 57a-61a) were issued without any notice to

the Chamber. The new TROs and the applications therefor

were not materially different from TRO #1, which the

Mississippi Supreme Court had refused to stay. In each case,

the application papers relied solely upon the November 2

Moore opinion to assert that the Chamber’s ads were subject

to regulation by Mississippi’s election statutes. The stations

enjoined by TROs #2 and #3 ceased broadcasting the

Chamber’s ads.

The Chamber supplemented its stay application to seek

relief from those further orders as well. November 5, 2000,

Supplement to Motion for Emergency Stay of a Prior

Restraint on Political Speech (No. 00A406). At about noon

10 _

on November 6, Mr. Justice Scalia issued a further Order

staying TROs #2 and #3. (Pet. App. 6a).

On Monday, November 6, after Mr. Justice Scalia had

stayed TRO #1, and while the Chamber was seeking relief

from TRO #2 and TRO #3, Judge Vollor’s counsel went

back before the same Hinds County Chancellor who had

issued TRO #1. Ostensibly acting on behalf of “William A.

Pyle, a citizen of Mississippi,” Judge Vollor’s counsel applied

for a new TRO. (In fact, Mr. Pyle is a lawyer and had

assisted Judge Vollor’s counsel in an undescribed capacity

during the first TRO hearing of November 3. (Pet. App.

54a).) The motion papers confirm that both counsel and the

Chancellor were aware of Mr. Justice Scalia’s stay of TRO

#1. (Pet. App. 76a). Moreover, counsel for the Chamber is

informed that the Hinds County Chancery Court

independently had been advised of that stay directly by the

personnel of this Court. Judge Vollor’s lawyer and the

Chancellor both knew who was representing the Chamber

since he had appeared to oppose issuance of TRO #1.

Nevertheless, without giving notice to the Chamber or

permitting it any opportunity to be heard, the Chancellor ex

parte granted another injunction (“TRO #4”), this time to Mr.

Pyle. (Pet. App. 62a).

TRO #4 was broader than TRO #1. It was not limited to

ads concerning any particular judicial race, but rather covered

any ad by the Chamber concerning any of the judicial

elections occurring statewide. Nor was TRO #4 limited to the

State of Mississippi. In addition to naming the Chamber and

all Mississippi television stations, TRO #4 also named and

enjoined two television stations in an adjacent state. /d.

Upon receipt of TRO #4, the Chamber again supplemented

its application for a stay from this Court, November 6, 2000,

Second Supplement for Emergency Stay of a Prior Restraint

on Political Speech (No. 00A411), and another stay was

granted by Mr. Justice Scalia. (Pet. App. 7a). Stations

resumed broadcasting Chamber ads on election day,

November 7.

TRO #1 is the only injunction that the Mississippi Supreme

Court specificaliy addressed. Thus, the Chamber directs this

petition to TRO #1. However, the three other TROs raise

essentially identical issues.

REASONS FOR GRANTING THE WRIT

Certiorari is appropriate here for two reasons. First,

certiorari should be granted because state courts, like those

below, increasingly have authorized prior restraints, including

ex parte prior restraints. The injunctions here barred

dissemination of political advertising because the speech

mentioned a candidate and allegedly violated campaign

finance laws. Indeed, four such injunctive restraints were

_ imposed by three Mississippi courts in the week before the

November 7, 2000, elections, including the injunction

challenged here. One of the orders (TRO #4) was issued in

the face of an emergency stay granted by Mr. Justice Scalia as

Circuit Justice. Similar injunctions have been granted in past

elections by other state courts in Wisconsin and Florida. See

Elections Bd. v. Wis. Mfrs. & Commerce, 597 N.W.2d 721,

725 (Wis.), cert. denied, 528 U.S. 969 (1999): Republican

Party of Fla. v. Fla. Elections Comm’ n, 658 So. 2d 653, 653-

55 (Fla. Dist. Ct. App. 1995). Unless this Court swiftly and

authoritatively affirms First Amendment rights, future

election-related advertising will be subject to a proliferation

of such prior restraints.

Second, a split has developed among state and federal

courts and agencies over the meaning of the First Amendment

concept of “express advocacy” that this Court announced in

Buckley, 424 U.S. at 44 & n.52, and reaffirmed in FEC vy.

Massachusetts Citizens for Life, 479 U.S. 238 (1986)

(“MCFL”). This Court intended for the express advocacy

standard to provide clear and certain guidance as to what

12

speech is subject to regulation, thus preventing a chill of

permissible speech. At this point, however, there is sufficient

uncertainty as to the meaning of that standard, as manifested

by the TROs, to defeat its purpose. Only this Court can

restore the needed certainty.

These two grounds for review are synergistic. The

availability of a theory of implied express advocacy tempts

litigants and courts to seek even broader prior restraints. The

threat of such restraints chills even more speech. The Court

should stop the growing practice of injunctions against

political advertising. It should also reaffirm that independent

speech may be subjected to campaign finance regulation only

if it contains explicit language expressly advocating electoral

action.

A. Prior Restraints Against Political Speech Are A

Growing And Disturbing Practice That Requires

This Court’s Review

Prior restraints are “the most serious and the least

tolerable” form of speech regulation. Neb. Press Ass'n, 427

U.S. at 559 (collecting authority). They are strongly

presumed to be unconstitutional, even when their goal is to

regulate a form of speech that the First Amendment does not

protect. Vance v. Universal Amusement Co., 445 U.S. 308

(1980) (per curiam) (collecting authority).° Where a prior

restraint otherwise might be permissible, such as in regulating

° Freedman v. Maryland, 380 U.S. 51 (1965), contains criteria

applicable to prior restraints. However, Mr. Justice Brennan, the author of

Freedman, \ater explained that it “rest{[s] upon the proposition that

‘obscenity is not protected by the freedoms of speech and press.’” New

York Times Co. v. United States, 403 U.S. 713, 727 n.* (1971) (Brennan,

J. concurring). Following that concurrence, this Court has not applied

Freedman to speech that categorically is protected by the First

Amendment. .

13

obscenity, it may not be imposed until after a final

determination that the speech actually is obscene. /d.

“Temporary restraining orders and permanent injunctions

—i.e., court orders that actually forbid speech activities—are

classic examples of prior restraints.” Alexander v. United

States, 509 U.S. 544, 550 (1993), cert. denied, 522 U.S. 869

(1997). Political speech lies at the heart of the First

Amendment. First Nat’l Bank of Boston v. Bellotti, 435 U.S.

765, 776 (1978). This is equally true whether the speech is

express advocacy or something else.

This Court has never sustained an injunction against

prospective political speech. In Buckley and MCFL,

however, this Court held that the financing of some political

speech pertaining to candidates may be regulated and even

prohibited. Those holdings unfortunately have engendered a

new willingness to enjoin political speech.

The circumstances that led to TRO #1 and the other

injunctions are clear. Busy trial judges were importuned by

candidates (fellow judges in Mississippi) with urgent claims

that they were being injured by unlawful activity that, if not

stopped immediately, would influence an impending election,

causing them irreparable injury. The Chamber was from out-

of-state and perhaps represented disfavored views. Reassured

by Buckley and MCFL that some political speech is subject to

regulation and that, under other authority, the express

advocacy standard arguably is flexible, the trial courts

granted injunctions even on an ex parte basis. As a result,

advertising was suppressed at a vital time for political speech,

immediately before an election.

The TRO challenged here was not an isolated act. Three

different Mississippi judges independently granted three

additional TROs against future political speech by the

14

Chamber. The Mississippi Supreme Court refused to

intervene.°

Nor were the Mississippi judges the first to grant such

injunctions. Comparable prior restraints have been imposed

previously in both Wisconsin and Florida. In Wisconsin, two

State circuit courts ordered on October 31, 1996, temporary

injunctions restraining an organization, WMC Issues

Mobilization Council, Inc., from broadcasting _ its

advertisements related to legislative elections to be held on

November 5, 1996. See Wis. Mfrs. & Commerce, 597

N.W.2d at 725. In Florida, the state Democratic Party sought

and received emergency injunctions before the November 8,

1994, election to stop television broadcasts of two political

ads purchased by the Republican Party of Florida. A

temporary injunction issued from November 2 to November 4

and, after another hearing, from November 4. On December

1, after the election, a Florida circuit judge issued a

supplemental temporary injunction after hearing a motion for

reconsideration. Republican Party of Fla. v. Fla. Elections

Comm'n, 658 So. 2d at 653-55. Only belatedly did an

appellate Florida court reverse one of these injunctions as “an -

unconstitutional prior restraint of speech.” Jd. at 653, 657. In

sum, such prior restraints are a growing phenomenon.

State courts are not subject to review by the federal courts

of appeals. Only this Court can step in and make clear on a

national basis that such prior restraints cannot be folerated, at

least in the absence of the most exigent circumstances, such

as war or other threat to national security. Certainly such

restraints cannot be justified by the alleged violation of

regulatory requirements imposed by election law statutes or

® The Chamber’s ads directly addressed issues posed by the

candidacies of several incumbent Justices of that court.

15

by claims of injurious falsehood of the type that has always

been dealt with by defamation damages, not injunction.

B. The Standard Of “Express Advocacy” On Which

The Prior Restraint Rests Is An Important

Constitutional Issue On Which Federal And State

Courts And Agencies Are Divided

The TROs against the Chamber were issued in reliance on

the Moore Opinion. That District Court ruling permitted

Mississippi regulation of the Chamber’s independent speech,

even though that speech contained no words of “express

advocacy.” In so doing, it gave further support to an

erroneous position that is undermining the clarity that the

express advocacy standard was intended to provide.

Buckley could not have been clearer that, to satisfy the First

Amendment’s demand for clarity and precision, the express

advocacy standard required “express” words advocating

electoral action. 424 U.S. at 44 & n.52. MCFL explicitly

reaffirmed this understanding of Buckley. 479 U.S. at 249.

Five U.S. courts of appeals have interpreted Buckley in light

of MCFL and all five have demanded explicit advocacy.’ For

example, the Fourth Circuit held in FEC v. Christian Action

Network, Inc. that:

The [Supreme] Court opted for the clear, categorical

limitation, that only expenditures for communications

” Citizens for Responsible Gov't State PAC v. Davidson, Nos. 99-

1414 et al., 2000 WL 1902427 (10th Cir. Dec. 26, 2000); Vermont Right

to Life Comm. v. Sorrell, 221 F.3d 376 (2d Cir. 2000); Jowa Right to Life

Comm., Inc. v. Williams, 187 F.3d 963 (8th Cir. 1999); FEC v. Christian

Action Network, Inc., 110 F.3d 1049 (4th Cir--1997); Maine Right to Life

Comm., Inc. v. FEC, 914 F. Supp. 8 (D. Me.), aff'd per curiam, 98 F.3d 1

(Ist Cir. 1996), cert. denied, 522 U.S. 810 (1997); Faucher v. FEC, 743 F.

Supp. 64 (D. Me. 1990), aff'd, 928 F.2d 468 (1st Cir.), cert. denied, 502

U.S. 820 (1991). ;

CPP ee AN EE Ong

16

using explicit words of candidate advocacy are

prohibited, so that citizen participants in the political

processes would not have their core First Amendment

rights to political speech burdened by apprehensions that

their advocacy of issues might later be interpreted by the

government as, instead, advocacy of election result.

110 F.3d at 1051.

Nevertheless, there has been a persistent effort to

undermine Buckley and to erode the express advocacy

standard into something less. Early impetus for this effort

came from the Ninth Circuit’s opinion FEC v. Furgatch, 807

F.2d 857 (9th Cir.), cert. denied, 484 U.S. 850 (1987).

Although that opinion issued several weeks after MCFL (with

the winter holidays intervening), it did not mention MCFL,

and opined that explicit language calling for electoral action

was not necessary and that “express advocacy” exists if an ad

“read as a whole” and in “context” is “suggestive of only one

plausible meaning.” Jd. at 864.°

When it opposed a petition for certiorari in Furgatch, the

Federal Election Commission (“FEC”) argued that the

opinion had no significance in light of MCFL.? However,

after certiorari was denied, the FEC seized on the Ninth

Circuit’s language, 807 F.2d at 864, and amended its

regulations, adding a subsection (b) which provides that

“expressly advocating” means:

® This language also was cited by the District Court for the District of

Columbia in FEC v. National Organization for Women, 713 F. Supp. 428,

434 (D.D.C. 1989).

* In opposing a writ of certiorari in Furgatch, the FEC represented to

the Supreme Court that the Ninth Circuit decision should be ignored in

light of the MCFL decision. See Christian Action Network, 110 F.3d at

1054. ’

17

(b) When taken as a whole and with limited reference to

external events, such as the proximity to the election,

could only be interpreted by a reasonable person as

containing advocacy of the election or defeat of one

or more clearly identified candidate(s) because—

(1) The electoral portion of the communication is

unmistakable, unambiguous, and suggestive of

only one meaning; and

(2) Reasonable minds could not differ as to whether

it encourages actions to elect or defeat one

or more clearly identified candidate(s) or

¥ encourages some other kind of action.

11 C.F.R. § 100.22(b) (2001). Twice the FEC has been

enjoined from enforcing this part of its regulations, but it

remains on the books and the FEC never has conceded that it

is invalid. '°

Several state courts either adopted a theory of implied

express advocacy or have indicated that it may be viable. For

example, the Wisconsin Supreme Court ruled that relying on

implications that are made clear by the “context” of speech

may well be appropriate. Wis. Mfrs. & Commerce, 597

N.W.2d at 733."' The Court of Appeals of Oregon similarly

looked for the “essential message” in light of “context.”

The purpose is not to search for magic words—which

careful drafters can, as in this case, usually avoid—but

to find the essential message that the publication

'° Subsection (b) was enjoined in Right to Life of Dutchess County,

Inc. v. FEC, 6 F. Supp. 2d 248 (S.D.N.Y. 1998), and enjoined nationwide

in Virginia Society for Human Life, Inc. v. FEC, 83 F. Supp. 2d 668 (E.D.

Va. 2000).

'' The Court elected not to apply the standard in that case because

defendants had not been given fair advance notice. Id. at 734.

18

communicates to the reader. In doing this, the context of

the publication—particularly whether or not it came in

the midst of a contested election campaign—can play a

role in determining how the reader would understand it

and, thus, what its message is.

State ex rel. Crumpton v. Keisling, 982 P.2d 3, 10 (Or. Ct.

App. 1999) review denied, 994 P.2d 132 (Or. 2000).

The November 2, 2000, Moore opinion acknowledged that

speech like the Chamber’s ads “occupies the highest rung of

the hierarchy of First Amendment values.” (Pet. App. 18a).

Moore recognized that, in the “fountainhead case” of Buckley,

424 USS. at 44 & n.52, this Court defined the concept of

“express advocacy” to require “express words of advocacy of

election or defeat, such as ‘vote for,’ ‘elect,’ ‘support,’ ‘cast

your ballot for,’ ‘Smith for Congress,’ ‘vote against,’ ‘defeat,’

and ‘reject.”” (Pet. App. 18a). Moore described the Cham-

ber’s ads (Pet. App. 14a-16a), making clear that they

contained no such express language. Nevertheless, Moore

ruled that, viewed in the context of an ongoing election, the

ads clearly implied an electoral message and, thus, constituted

express advocacy subject to regulation under Mississippi law.

Moore declined to construe Buckley and MCFL “narrowly”

to establish a “bright line” test. Instead, the court adopted

(Pet. App. 23a) a “Broader Interpretation” of express

advocacy based on Furgatch and MCFL, as well as opinions

in three states, Texas (Osterberg v. Peca, 12 S.W.3d 31, 52-

53 (Tex.), cert. denied, 120 S.Ct. 2690 (2000)), Wisconsin

(Wis. Mfrs. & Commerce, 597 N.W.2d at 723-24) and Oregon

(Crumpton, 982 P.2d at 10), and one U.S. district court

opinion, FEC v. Nat'l Org. for Women, 713 F. Supp. at 443.

According to Moore’s “Broader Interpretation,” speech

that clearly implies support for or opposition to a candidate

constitutes express advocacy, even though it includes no

explicit words advocating election or defeat of the candidate.

19

With specific reference to the Chamber’s ads, the court held

that an ad that portrays a “particular candidate as the person

who will use common sense, ensure prompt adjudication of

death penalty cases and uphold victim’s rights” is not “true

issue advocacy” and that “no reasonable viewer would

construe the [ad]” as anything but express advocacy. (Pet.

App. 31a-32a).

The Mississippi Chancery courts relied on Moore. Moore

also induced the Ohio Elections Commission four days later

on November 6, 2000, to reverse ground and hold that

explicit language is not necessary to constitute express

advocacy. In explaining the change in his vote—which was

the deciding factor in a finding of probable cause—the

chairman of the Ohio Elections Commission panel said:

I am deeply troubled by the problems that we face. This

appears to be an election year in which we conclude if

something occurred 24 years ago it should be discarded;

but of course, legal precedence 24 years old [Buckley]

can’t simply be discarded.

With that passage of time, perhaps a good-faith belief

can be held that if the [Supreme] Court were to have the

matter before it again, that it might rule otherwise.

Common Cause/Ohio v. U.S. Chamber of Commerce, No.

2000E-058 (Ohio Elections Comm’n Nov. 6, 2000)

(Transcript at 39-40). For discussion of this proceeding, see

T.C. Brown, State Goes In Search of Political Ads, The Plain

Dealer, Nov. 7, 2000, at 1B, available at 2000 WL 5174312.

Election authorities in other states also have indicated their

belief that explicit language is not needed to establish express

advocacy. For example, the Florida Division of Elections has

opined that express advocacy includes speech that leaves an

“unmistakable impression” of support for a candidate, Florida

Div. Of Elections 94-15, quoted in Fla. Right to Life, Inc. v.

20

Mortham, 1998 WL 1735137, *3 (M.D. Fl. 1998) (granting

preliminary injunction in part), affd sub nom. on other

grounds, Fla. Right to Life, Inc. v. Lamar, 2001 WL 40216

(11th Cir. 2001).

In short, while the strong majority position is that express

advocacy requires explicit words advocating electoral action,

a growing minority has emerged that now causes genuine

uncertainty. This exposes independent speakers to unjustified

government regulation of speech and potential liability for

monetary fines and even criminal violations. See Miss. Code

Ann. §§ 23-15-811, 23-15-813, 97-13-17. Only this Court

can restore the clarity Buckley intended.'* Until this Court

'2 Numerous legal periodicals reflect the confusion that has been

created by opponents of the “express advocacy” standard. See, e.g.,

Richard E. Levy, Defining Express Advocacy for Purposes of Campaign

Finance Reporting and Disclosure Laws, 8 Kan. J.L. & Pub. Pol'y 90

(1999) (asserting that there is chaos over the meaning of express advocacy

‘and advocating a loose standard); Glenn J. Moramarco, Beyond "Magic

Words": Using Self-Disclosure to Regulate Electioneering, 49 Cath. U. L.

Rev. 107 (1999) (acknowledging current dispute and attacking explicit

language requirement); Michael D. Leffel, Note, A More Sensible

Approach to Regulating Independent Expenditures: Defending the

Constitutionality of the FEC’s New Express Advocacy Standard, 95 Mich.

L. Rev. 686 (1996) (acknowledging current uncertainty and advocating a

context-sensitive approach); Scott E. Thomas & Jeffrey H. Bowman, /s

Soft Money Here to Stay Under the "Magic Words” Doctrine, 10 Stan. L.

& Pol'y Rev. 33 (1998) (FEC Commissioner Thomas and colleague

arguing in support of FEC's context and implication regulation); Richard

Briffault, /ssue Advocacy: Redrawing the Elections/Politics Line, 77 Tex.

L. Rev. 1751 (1999) (proposing an alternative definition of election-

related activity); Allison Rittenhouse Hayward, Stalking the Elusive

Express Advocacy Standard, 10 J.L. & Pol. 51 (1993) (describing existing

uncertainty and inconsistency and resulting chill). The first four articles

were relied upon in Defendants’ Memorandum of Law in Opposition to

Plaintiff's Complaint for Expedited Declaratory Relief in Moore.

'3 Now that final judgment has been entered, the Chamber is pursuing

an appeal of Moore to the Fifth Circuit. However, a ruling by that court

21

does so, the purpose of the express advocacy standard is

being defeated because political speech is being chilled,

including through the growing use of unconstitutional prior

restraints.

CONCLUSION

The petition for writ of certiorari should be granted.

Respectfully submitted,

JAN WITOLD BARAN,

Counsel of Record,

THOMAS W. KIRBY

WILEY, REIN & FIELDING

1776 K Street, N.W.

Washington, DC 20006

(202) 719-7000

Of counsel: MICHAEL B. WALLACE

STEPHEN A. BOKAT PHELPS DUNBAR, I.L.P. |

U.S. CHAMBER OF COMMERCE Suite 500, Skytel Centre

1615 H Street, N.W. Jackson, MS 39225

Washington, DC 20062 Counsel for Petitioner

February 1, 2001

will not bind the Mississippi’s courts or private litigants there. Nor will it

bind other courts and litigants across the country.