The Volokh Conspiracy
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From today's decision in Montana Citizens for Right to Work v. Mangan, decided today by Judge Donald Molloy (D. Mont.):
Montana's Clean Campaign Act … requires … political committees to contemporaneously provide a candidate with a copy of any campaign advertisement published within ten (10) days of an election if that advertisement refers to, but does not endorse, the candidate. The law does not pass constitutional muster….
The statute, in relevant part, provided:
 A candidate or a political committee shall at the time specified in subsection (3) provide to candidates listed in subsection (2) any final copy of campaign advertising in print media, in printed material, or by broadcast media that is intended for public distribution in the 10 days prior to an election day unless:
[a] identical material was already published or broadcast; or
[b] the material does not identify or mention the opposing candidate.
 The material must be provided to all other candidates who have filed for the same office and who are individually identified or mentioned in the advertising, except candidates mentioned in the context of endorsements.
 Final copies of material described in subsection (1) must be provided to the candidates listed in subsection (2) at the following times:
[a] at the time the material 1s published or broadcast or disseminated to the public;
[b] if the material is disseminated by direct mail, on the date of the postmark; or
[c] if the material is prepared and disseminated by hand, on the day the material is first being made available to the general public.
 The copy of the material that must be provided to the candidates listed in subsection (2) must be provided by electronic mail, facsimile transmission, or hand delivery, with a copy provided by direct mail if the recipient does not have available either electronic mail or facsimile transmission. If the material is for broadcast media, the copy provided must be a written transcript of the broadcast….
The court concluded that the law was content-based, because it "requires the contemporaneous disclosure of certain speech. Specifically, the statute requires the speaker to provide a copy of the particular campaign advertisement to any candidates individually mentioned therein 'except candidates mentioned in the context of endorsements.'"
[Defendant Montana Commissioner of Political Practices Jeffrey] Mangan argues that some "cursory examination" of speech that is incidental to the application of an otherwise content-neutral restriction does not make the restriction content based. Mangan is correct that some content-based inquiries used "to determine whether a rule of law applies to a course of conduct" can still be found content neutral. See Hill v. Colorado (2000). However, the Supreme Court has more recently clarified that when a law is content-based on its face, it is subject to strict scrutiny "regardless of the government's benign motive, content-neutral justification, or lack of animus toward the ideas contained in the regulated speech." Reed v. Town of Gilbert (2015). This is so if the law, unlike Montana's Fair Notice provision, "does not discriminate among viewpoints within that subject matter." Under Montana's Fair Notice provision, endorsements are treated differently from non-endorsements specifically because the state as a matter of policy does not believe candidates need to respond to endorsements. The state therefore "draws a distinction based on the message a speaker conveys." "That is about as content-based as it gets."
And the court then held that the law couldn't pass the "strict scrutiny" applicable to content-based restrictions (which requires that the restriction be "narrowly tailored to achieve a compelling state interest"):
Mangan insists that Montana's Fair Notice provision serves three compelling interests: (1) "deterring corruption or the appearance of corruption," (2) "providing the electorate with information," and (3) "protecting candidates' right to respond late in a campaign." …
Courts consistently recognize an "important" or "substantial" interest in both providing the electorate with information and combatting corruption. Less clear, however, is whether these interests ascend to the level of "compelling." That question can be avoided, however, as Mangan fails to adequately connect the law at issue with either interest. First, Mangan presents no evidence showing that the disclosure of negative campaign advertisements to individual candidates combats corruption. Unlike other disclosure cases regarding political contributions and expenditures, § 13-35-402 "does not regulate any financial aspect of a [political action committee]' s participation in the political process. Rather, it imposes a more pernicious burden on speech in that it delays, and sometimes even prevents, political speech on the basis of content." In the absence of such a connection,§ 13-35-402 "cannot pass muster on this basis."
In the same way, Mangan fails to connect Montana's Fair Notice provision to an informed electorate. Unlike many disclosure laws, § 13-35-402 does not require disclosure about a particular candidate or entity to the general public. Here, the disclosure at issue is between a candidate or entity and an individual candidate. As a result, the "informational" interest espoused in other disclosure cases is inapposite. In Yamada, for example, the Ninth Circuit specifically phrased the relevant interest as "reporting and disclosure obligations provide information to the electorate about who is speaking" because "[t]his transparency enables the electorate to make informed decisions and give proper weight to different speaker and message." … Montana's Fair Notice provision in this case requires disclosure to specific, individual candidates, not disclosure of any information to the electorate as a whole.
While the required disclosure may result in the release of additional information into the public sphere, the law itself mandates no such thing. To the contrary, enforcing § 13-35-402 has the potential to "chill" campaign speech in the final days of an election. "A State's claim that it is enhancing the ability of its citizenry to make wise decisions by restricting the flow of information to them must be viewed with some skepticism." Thus, to the extent an informational interest may be compelling, it is not achieved here.
That leaves only the State's purported interest in in giving candidates a right to respond to negative campaign advertisements on the eve of an election. In a perfect political place that notion makes sense. But last-minute negativity is a reality whether endorsed or not.
Although first characterized as the state's interest in responding to "false" information, Mangan has not shown that last-minute campaign advertisements are more or less likely to contain "false" information than any other advertisement. Thus, a compelling interest in correcting "false" information, to the extent one exists, is not at issue here. Nonetheless, Mangan's argument is based almost entirely on the synonymous treatment of false and negative speech…. [T]he state "cannot seek to punish fraud indirectly by indiscriminately outlawing a category of speech, based on its content, with no necessary relationship to the danger sought to be prevented." Based on the record in this case, the "right to respond" does not provide a compelling interest justifying the burdens Montana has placed on "negative" campaign speech. Mangan "has simply decried 'negative campaigning', in general, and while the Court might agree that negative campaigning is distasteful, that is not a sufficient basis for interfering with core first amendment rights."
Moreover, even if the state's identified interest was compelling, Mangan has not shown the statute is narrowly tailored to achieve that interest. "A statute is narrowly tailored if it targets and eliminates no more than the exact source of the evil it seeks to remedy." "If a less restrictive alternative would serve the state's compelling interest with the same level of effectiveness, the state must use that alternative." Here, the statute is both overbroad and underinclusive.
As to its overbreadth, Montana's Fair Notice provision requires disclosure in all contexts except endorsements. As a result, while Mangan's arguments focus on the right to respond to negative advertising, the statute also requires disclosure in the context of neutral advertisements. For example, if a political action committee issued a mailer that merely outlined the voting records of two candidates on an issue with no further commentary, that mailer would be subject to disclosure. As such, the law is overbroad.
The law is also underinclusive. "While narrow tailoring requires that a statute not cover more speech that is necessary to serve a compelling government interest, a statute can also fail strict scrutiny if it covers too little speech." "Underinclusivity creates a First Amendment concern when the State regulates one aspect of a problem while declining to regulate a different aspect of the problem that affects its stated interest in a comparable way." Here, the disclosure rule only applies in the last ten days of an election. While the timing of certain advertising may have unique impacts, Mangan fails to provide any evidence supporting that position, especially related to the ten-day timeframe statutorily imposed here. That omission is particularly problematic under Montana law as absentee ballots are mailed to voters 25 days before an election.
The law also does not cover certain types of communication. Although Mangan argues oral communication is inherently different from print communication, he once again provides no evidence to support that position. Under the current law, disclosure is not required if a candidate or political action committee went to a town hall meeting and disparaged an opponent, even falsely. Additionally, [Plaintiff] Montana Citizens initially argued that the provision was underinclusive because it also did not apply to the internet or social media. In response, Mangan cited regulatory authority outlining the timing requirements for "broadcast media [and] digital media." While Montana Citizens conceded this point at oral argument, it seems doubtful that the regulation insulates the statute from an inclusivity problem in light of the fact that§ 13-35-402 only references "broadcast media," which does not include internet.
The statute also fails to cover speakers beyond candidates and political action committees. In Bayless, for example, the Ninth Circuit found a similar Arizona statute unconstitutional in part because it only applied to political action committees and not candidates. Here, Montana's law is more narrowly tailored than Arizona's because it includes candidates. But Mangan fails to show that either candidates or political action committees are the primary groups engaged in negative last-minute election advertising. To be sure, if Mangan presented such evidence, Montana's Fair Notice provision could be "appropriately scaled to the level of political advocacy in which an organization [or candidate] engages." … "Organizations that frequently engage in political speech can be required to disclose more information than organizations that only do so occasionally." … But the record is silent on this point and as it stands, individuals, other organizations, and the press are all "free to place as many negative, misleading or confusing advertisements as they like, none of which are subject to the notice requirement."
Congratulations to my friend Matt Monforton, who was the lawyer for the plaintiffs.