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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2001
- **Citation:** 532 U.S. 1058

## Text

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

YO

oT

“ —-~ 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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0772%3A1. Public record. Not legal advice.