Confusion bans are content-based so disclaimers must be tried first, court rules

Pursuing America’s Greatness v. Federal Election Comm’n, No. 15-5264 (D.C. Cir. Aug. 2, 2016)

I wonder whether INTA is worried about this case.  If not, why not?

The Federal Election Commission prohibits unauthorized political committees, like Pursuing America’s Greatness, from using candidates’ names in the titles of their websites and social media pages.  The Federal Election Campaign Act (FECA) creates two kinds of naming restrictions.  A committee that is “authorized” by a candidate to receive or spend money on his behalf must use the candidate’s name in its name. Unauthorized committees may not. FECA’s naming rules reach only committee names, but the FEC also restricts the names of committee projects, including online projects, such as websites or social media pages whether or not a committee’s project involves fundraising.  An exception allows unauthorized committees to use candidate names in titles that “clearly and unambiguously” show opposition to the named candidate, because “the potential for fraud and abuse is significantly reduced.”

To support Governor Huckabee’s most recent run for the White House, plaintiff PAG used a website and a Facebook page named “I Like Mike Huckabee.” PAG sought a preliminary injunction to prevent the FEC from enforcing its naming rules. 

PAG and the FEC first disagreed on whether this was a mere disclosure requirement or a speech ban.  A disclosure rule is one that  requries the speaker “to provide more information to the audience than he otherwise would.” The rule here wasn’t a disclosure requirement, because it prevented PAG from conveying information to the public [in its name/project title].  By contrast, FECA’s requirement that unauthorized committees disclose their lack of authorization is “garden-variety” disclosure, even though the required disclosure necessarily bans one statement (the false statement that the committee is authorized).  By barring the use of candidate names in titles of communications, the FEC banned more speech than that covered by FECA’s provisions requiring disclosure.

This speech restriction is content-based because the FEC has to look at the content of the title of PAG’s website/Facebook pages to figure out if there’s any violation.  The fact that unauthorized committees can still use candidate names other than in titles doesn’t mean the regulation is content-neutral; that fact just goes to narrow tailoring.  Anyway, titles are important:

The title is a critical way for committees to attract support and spread their message because it tells users that the website or Facebook page is about the candidate. Without a candidate’s name, the title does not provide the same signaling to the audience. Allowing a committee to talk about a candidate in the body of a website is of no use if no one reaches the website.

Query: is this true, given current search engine practices?  My guess is that Google would recognize the relevance without the candidate’s name in the title. 

As a content-based regulation, the FEC rule needed to be narrowly tailored to serve a compelling interest.  It wasn’t, despite having the same  basic structure as trademark law! The court assumed that avoiding voter confusion was a compelling interest.  Now, consider typical infringement remedies—not to mention significant portions of §2—held to this standard:

Here, the FEC reasonably fears that voters might mistakenly believe an unauthorized committee’s activities are actually approved by a candidate if the committee uses the candidate’s name in its title. But there is a substantial likelihood that section 102.14 is not the least restrictive means to achieve the government’s interest.  For example, as amicus pointed out, the FEC could require a large disclaimer at the top of the websites and social media pages of unauthorized committees that declares, “This Website Is Not Candidate Doe’s Official Website.”

Disclosures are less restrictive alternatives, and the FEC’s rejection of them was based on its belief that disclosures would impose burdens without solving the confusion problem.  But the FEC didn’t offer any evidence that “larger or differently worded disclosures would be less effective at curing fraud or abuse than a ban on speech” or would be burdensome.  The FEC needed “more than anecdote and supposition” to support a regulation subject to strict scrutiny. “Where the ‘record is silent as to the comparative effectiveness of . . . two alternatives’—one of which burdens more speech than the other—the more burdensome restriction cannot survive strict scrutiny.”  So that’s it—disclaimers for everyone!