Court Cases - Free Speech

FEC v. Wisconsin Right to Life
Child Custody Protection Act (CCPA)
Wisconsin Right to Life Wins on Judicial Speech Restrictions in Federal District Court

Wisconsin Right to Life Makes History in Key Free Speech Case

FEC v. Wisconsin Right to Life: No. 06-969, consolidated with McCain v.Wisconsin Right to Life, No. 06-970 (2007):

In a historic June 25, 2007 decision, the U.S. Supreme Court created a grass-roots lobbying exception requested by Wisconsin Right to Life to the McCain-Feingold campaign finance reform law.     

The Supreme Court held that the "electioneering communication" prohibition in McCain-Feingold was unconstitutional as applied to three anti-filibuster grass-roots lobbying ads that Wisconsin Right to Life wanted to continue airing in 2004.  The Court said that in any case where there is doubt as to whether the test is met, "[t]he First Amendment requires us to err on the side of protecting political speech rather than suppressing it" and "[w]e give the benefit of the doubt to speech, not censorship."

This decision restored the right of citizens and citizen organizations to engage in grass-roots lobbying using radio and television ads to urge people to contact their legislators.

The opinion in FEC v. Wisconsin Right to Life (No. 06-969, consolidated with McCain v. Wisconsin Right to Life, No. 06-970) is available on Wisconsin Right to Life website. 
Click here.

 History of the case:

• McCain-Feingold (the Bipartisan Campaign Reform Act of 2002 or "BCRA") prohibits corporations and unions from using general funds to air radio and television broadcast ads within 30 days of a primary and 60 days of a general election that simply mention the name of a federal candidate. 
• Violators of the blackout periods are subject to jail terms because mentioning a federal candidate’s name is considered a crime by the Act. 
• In 2003, the U. S. Supreme Court upheld the BCRA on its face in McConnell v. FEC.
• In July 2004, Wisconsin Right to Life began airing grassroots radio and television lobbying ads urging Wisconsin citizens to call Senators Kohl and Feingold (then a candidate), and ask them to oppose filibusters of President Bush's judicial nominees. 
• Here is the text of one of those ads:  "There are a lot of judicial nominees out there who can't go to work.  Their careers are put on hold because a group of senators is filibustering--blocking qualified nominees from a simple 'yes' or 'no' vote.  It's politics at work and it's causing gridlock.  Contact Senators Feingold and Kohl and tell them to oppose the filibuster.  Visit:  BeFair.org" To view and hear ads,
  click here.   
• Because Sen. Feingold had chosen to run for re-election, Wisconsin Right to Life's ads would have become forbidden communications from August 15 to November 2, 2004. WRTL filed suit in the District Court for the District of Columbia to be able to continue airing its ads during the blackout period.
• WRTL's suit claimed that the blackout periods could not be constitutionally applied to grass-roots lobbying ads about upcoming votes in Congress because the right to petition the government is a protected right in the First Amendment. 
• In 2004, the district court denied Wisconsin Right to Life's request and dismissed the case in 2005, based on its belief that when the Supreme Court upheld the blackout provision on its face in McConnell, it precluded such challenges. 
• In 2006, the U.S. Supreme Court unanimously reversed the district court, ruling that as-applied challenges could be brought against the blackout periods and sent the case back to the district court. 

District Court Sides with Wisconsin Right to Life

• In December 2006, the district court held the electioneering communication prohibition unconstitutional as applied to Wisconsin Right to Life's 2004 ads.  It found that there was "no link" between the ads that Wisconsin Right to Life wanted to continue airing and Sen. Feingold's character or fitness for office.  (i.e., his role as a candidate as opposed to his role as a legislator). The Court’s ruling was 2-1. 
• In its appeal to the U.S. Supreme Court, the co-sponsors of the McCain-Feingold law argued that broadcast ads could be prohibited if they "took a critical stance regarding a candidate's position on an issue."   While WRTL's ads did not criticize either Senator Feingold or Senator Kohl, Senator John McCain claimed they did by just bringing up the filibuster issue during an election.
• In its June 25 decision, the Supreme Court went beyond merely affirming the district court and created a constitutional safe harbor for grass-roots lobbying.  It stated that, if the communications meet certain specific criteria, they could be broadcast during the blackout periods. 
• The U.S. Supreme Court’s ruling was 5-4 with Justices Breyer, Stevens, Souter and Ginsburg dissenting. 

Wisconsin Right to Life Wins Second Case

On the heels of the June 25 U. S. Supreme Court victory, the FEC conceded to Wisconsin Right to Life in yet another case.

In 2006, WRTL sought to run an ad regarding the Child Custody Protection Act (CCPA) that asked people to contact Senators Kohl and Feingold to urge them to stop efforts by the Senate leadership to hold up the bill.  At the time, Senator Kohl was a candidate running for reelection.

The text of the CCPA ad, which WRTL sought to air at a time when Senator Kohl was a candidate, is as follows: "Listen up parents. Wisconsin requires parental consent before your minor daughter can have an abortion.  But, she can be taken to Illinois for an abortion that is kept secret from you.  Imagine, your daughter can be taken across state lines for a major surgical procedure without your knowledge or consent.  The U.S. Senate recently passed a bill to protect parents from secret abortions.  Fortunately, Senator Kohl voted for the rights of parents.  But sadly, Senator Feingold did not.  Your help is urgently needed because some senators are holding up further action on the bill.  Please call Senators Kohl and Feingold at 202-224-3121 and urge them to stop efforts by the Senate Democratic leadership to hold up a bill which will prevent secret abortions.  That's 202-224-3121."

On July 18, 2007 the FEC asked the D.C. District Court to declare the 2006 WRTL ad constitutional.  This concession is significant because it establishes that "genuine issue ads" may a) state the position of the named candidate on an issue and (b) criticize or praise the candidate's position on the issue. 

Wisconsin Right to Life Wins on Judicial Speech Restrictions in Federal District Court

Duwe v. Alexander, No. 06-C-0766-S (W.D. Wis. May 29, 2007)

On May 29, 2007, Wisconsin Right to Life won a tremendous court victory when Federal District Court Judge John Shabaz granted a permanent injunction against provisions of the Wisconsin Code of Judicial Conduct that prohibited state court judicial candidates from responding to a questionnaire asking their views on legal and political issues.
Wisconsin Right to Life had sent a questionnaire to candidates for judicial office in the
November 2006 and April 2007 elections requesting that they state their views on policies and court decisions related to such matters as assisted suicide and abortion.  Several of the judicial candidates refused to return the questionnaire, stating that they could be disciplined for expressing their views by responding to the questions posed in such questionnaires.  A 2006 opinion by the state's Judicial Conduct Advisory Committee had found that judicial candidates were prohibited from announcing their views on disputed legal and political issues.

The District Court disagreed, finding that the provisions were unconstitutional to the extent that they prohibited candidates from announcing their views.  The Court held that one of the provisions of Wisconsin's Code, which required judges to recuse themselves if they had previously made statements that "appear to commit" the judges on issues likely to come before the court, was indistinguishable from a provision struck down by the U.S. Supreme Court in 2002.

That case, Republican Party of Minnesota v. White, 536 US 765 (2002), found unconstitutional on First Amendment grounds a Minnesota rule that prohibited judicial candidates from "announcing their views on disputed legal or political issues."  Similarly, the District Court held that a Wisconsin Code provision prohibiting judicial candidates from making "pledges and promises" regarding future cases could not be used to prohibit candidates from answering Wisconsin Right to Life's questionnaire.

The U.S. Supreme Court clearly stated that judicial candidates have a right to respond to questionnaires like this and voters have a right to hear what they have to say.
The Wisconsin case is Duwe v. Alexander, No. 06-C-0766-S (W.D. Wis. May 29, 2007.)  The decision is available in PDF format online at the James Madison Center's website at www.jamesmadisoncenter.org under the "Judicial Accountability Project" link.