PRESS RELEASE
Wednesday, October 16, 2002
Contact: James Bopp, Jr., General Counsel
Phone 812/232-2434; Fax 812/235-3685
madisoncenter@aol.com

On September 25, the California Court of Appeal (First Division) joined numerous state and federal courts in recognizing that the U.S. Supreme Court, in Buckley v. Valeo (1976) and FEC v. MCFL (1986), articulated a bright-line express advocacy test to protect issue advocacy from government regulation. The California appellate court called into question the viability of the 9th Circuit's less distinct express advocacy test in FEC v. Furgatch (1987).

The case, Gov. Gray Davis Comm. v. American Taxpayers Alliance (A096685), involved a television advertisement run by ATA that criticized Gov. Davis for his handling of the California energy crisis and ended with the phrase "Gray outs from Gray Davis" as a lightbulb goes dark. The Gray Davis Committee filed suit seeking to compel ATA to register and report its donors under California's Political Reform Act, which requires the reporting of "express advocacy."

Attorneys for the James Madison Center for Free Speech moved to dismiss the complaint on the grounds that it was a suit brought to suppress free expression and that "Gray outs from Gray Davis" was not express advocacy that had to be reported. ATA relied on the U.S. Supreme Court's express advocacy test that requires that the communication in explicit words expressly advocate the election or defeat of clearly identified candidate. ATA pointed out that the controverted phrase, "Gray outs from Gray Davis" did not advocate the election or defeat of Gov. Davis. The Governor's Committee insisted that the phrase was thinly-veiled, subliminal advocacy to get "Gray out[]," relying on the 9th Circuit's broader express advocacy test.

The trial court entered an injunction requiring ATA to register with California's Fair Political Practices Committee and report ATA's donors. The appellate court reversed, holding that the ad contained no express advocacy and that California could not regulate issue advocacy. James Bopp, Jr., Madison Center General Counsel, declared the decision "both another recognition that the 9th Circuit's loose language in the Furgatch decision continues to cause problems and another victory for freedom of speech."

To unsubscribe from the James Madison Center for Free Speech e-mail list, please send an e-mail message with "UNSUBSCRIBE" as the subject to: dcundiff@bopplaw.com.