December 24, 2015

I’m dreaming of a free speech Christmas

By Christina M. Martin Attorney

Want more proof that federal government deserves a lump of coal in its stocking this year? This summer, the FEC decided that it needs to “protect” voters by cracking down on Facebook Fan Pages with names like Run Bernie Run or I like Mike Huckabee. According to the FEC, a political committee like a Super PAC cannot use the name of the candidate it supports in a website domain name or the title of a social media page. The FEC claims the naming prohibition is necessary to protect voters from confusing a candidate’s official page (or the page of its authorized political committee) with an unauthorized political committee page that has the candidate’s name in the title or web address.

Though the government certainly has an interest in preventing fraud, PLF yesteray filed a friend-of-the-court brief in the DC Circuit in Pursuing America’s Greatness v. FEC that explains that the naming prohibition goes too far and violates the First Amendment and basic reason. Indeed, the FEC’s prohibition suggests either that the FEC has too much time on its hands (since “idle hands make for the devil’s playground”) or doesn’t understand how the newfangled interweb works.

These days, fan pages are ubiquitous on the internet, especially on social media sites like Facebook. But as we explain in our amicus brief, the FEC has no evidence to suggest that people who actually use these outlets are having trouble distinguishing PAC-run fan pages from candidates’ official campaign sites. In fact, sites like Facebook and Twitter already help users distinguish between fan pages and official campaign pages. Both outlets use a verification process, denoting official pages of politicians and other public figures with blue checkmarks next to their names. If that weren’t enough, PACs like Pursuing America’s Greatness already include disclaimers on their websites and social media pages that explain the pages are not authorized or endorsed by any candidate.

The FEC’s lack of evidence demonstrating any kind of need for its restriction should prove fatal to its case. Because the restriction censors speech based on its content (i.e., based on whether it includes certain words or messages), the government bears a heavy burden of showing that its restriction is “narrowly tailored” to advance a “compelling government interest.” That means the government needs to offer evidence showing a need for its regulation, and the regulation cannot go further than necessary. This is a standard the FEC cannot meet. Indeed, it could not even meet the lesser standard of “intermediate scrutiny” because it bans substantially more speech than necessary and fails to leave open adequate alternative options for PACs.

The restriction bans even accurate, non-confusing names like “Unauthorized PAC to Elect Ben Carson.” But even an unwieldy name including a candidate’s name is likely to produce better results than one without the candidate’s name. Website addresses and social media page names often serve as important markers that allow individuals to know, without visiting a site, what kind of content to expect. Like a sign hanging outside of a brick-and-mortar business, the title or domain name of a website will determine who chooses to visit the site. Domain names and social media titles also impact whether users can find fan sites that share information about a candidate of interest. The domain name, for example, affects not only where a site shows up on a Google or Bing search, it also affects the likelihood of whether a user will click an advertisement by the candidate.

Perhaps someone will buy the FEC bureaucrats who cooked up this restriction a computer for Christmas and they will see the error of their ways. Or better yet, let’s hope the DC Circuit will roast this naming prohibition on an open fire this season.

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