Free Speech Arguments

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Does Delaware’s Disclosure Law Violate the First Amendment? (Americans for Prosperity Foundation v. Anthony Albence) Aug 10, 2026

Show notes

Episode 53: Americans for Prosperity Foundation v. Anthony Albence

Americans for Prosperity Foundation v. Anthony Albence, argued before Judges Thomas M. Hardiman, Stephanos Bibas, and Marjorie O. Rendell of the United States Court of Appeals for the Third Circuit on August 10, 2026. Argued by Allen Dickerson (on behalf of Americans for Prosperity Foundation) and Emily Burton (on behalf of the state of Delaware).

Case Summary, from the Opening Brief for Appellants:

…Delaware administers perhaps the most staggeringly overbroad donor disclosure regime in the nation. It reaches any mention of a candidate for office—including an incumbent officeholder—in a public communication made sixty days before a general election. A mere $500.01 in aggregate spending triggers the reporting requirement. Once triggered, any speaker that falls into Delaware’s regulatory maw must publish the name and address of every one of its donors giving more than $100, in aggregate, over a period of up to four years.

Delaware makes no effort to connect the dots between an organization’s donor and a reporting organization’s often much later speech. There is no requirement that a donor earmark a contribution for a particular advertisement, for activity in Delaware, or even for ostensibly political purposes generally. There is no opportunity to opt out of funding regulated speech and thereby, through an act of unlikely prescience, proactively safeguard one’s privacy. There is not even a requirement that a contribution be given with knowledge that an organization might engage in a paltry amount of political speech in Delaware at some point in the future. Delaware simply asserts that its voters need to know every donor to an organization that dips a toe into advocacy within its borders—in this case, thousands of individuals, across the nation and across multiple years…

Statement of Issues, from the Opening Brief for Appellants:

Whether Appellants are likely to show that Delaware violates the First Amendment by requiring that any entity sponsoring any public communication that references a Delaware candidate near a Delaware election disclose all persons everywhere who donated more than $100 to that entity during a period up to four years; and
Whether the equitable factors governing injunction requests favor First Amendment rights over First Amendment deprivations.

Resources:

The Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment. If you’re enjoying the Free Speech Arguments podcast, please subscribe and leave a review on your preferred podcast platform.

Are Maine’s Restrictions on Independent Expenditure Groups Constitutional? (Dinner Table Action, et al. v. Schneider, et al.) Jul 29, 2026

Show notes

Episode 52: Dinner Table Action, et al. v. Schneider, et al.

Dinner Table Action, et al. v. Schneider, et al. argued before Judges Lara E. Montecalvo, O. Rogeriee Thompson, and Seth R. Aframe of the United States Court of Appeals for the First Circuit on July 29, 2026. Argued by Charles “Chip” Miller (on behalf of Dinner Table Action) and Neal Katyal (on behalf of Equal Citizens) and Jonathan Bolton (on behalf of the State of Maine).

Case Summary, from the Institute for Free Speech case page:

A federal lawsuit seeks to stop a 2024 ballot initiative from placing limits on Mainers’ free speech rights. The suit challenges Maine’s newly enacted restrictions on contributions to independent expenditure groups, sometimes called “Super PACs.” The lawsuit also challenges requirements that force the disclosure of all donors who contribute toward independent expenditures, regardless of amount.

Question 1, passed by voters in 2024, imposes a $5,000 limit on contributions to such groups. The measure, also known as the “Act to Limit Contributions to Political Action Committees That Make Independent Expenditures,” contradicts established U.S. Supreme Court precedent, as well as numerous subsequent decisions by multiple federal courts of appeal. Thirty federal appellate judges have considered such limits, and all reached the same conclusion: contribution limits cannot be applied to independent expenditure groups.

Meanwhile, the law’s broad disclosure requirement threatens to chill the speech and damage the associational rights of donors who wish to maintain their privacy when participating in the political process. Under current law, donors contributing less than $50 to candidates or political committees can do so without public disclosure of their identity. The new law would force disclosure of all contributors to independent expenditures, regardless of amount, a change that multiple donors have specifically told the plaintiffs would stop them from participating in the political process.

Statement of Issues, from Plaintiffs-Appellees’ Response Brief:

Whether the First Amendment bars Maine from infringing political speech rights by limiting independent donations for independent expenditures.
Whether Maine can require disclosure of small dollar donors who donate towards independent expenditures.

Resources:

The Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment. If you’re enjoying the Free Speech Arguments podcast, please subscribe and leave a review on your preferred podcast platform. To support the Institute’s mission or inquire about legal assistance, please visit our website: www.ifs.org

Are the Trump Executive Orders Targeting Law Firms and Lawyers Constitutional? (Perkins Coie LLP v. DOJ) May 14, 2026

Show notes

Episode 51: Perkins Coie LLP v. Department of Justice

Perkins Coie LLP v. Department of Justice, argued before Chief Judge Sri Srinivasan, Judge Cornelia T.L. Pillard, and Judge Neomi Rao of the United States Court of Appeals for the D.C. Circuit on May 14, 2026. Argued by Paul Clement (on behalf of the Law Firm Appellees), Abbe Lowell (on behalf of Appellee Mark Zaid), and Abhishek Kambli (on behalf of the federal government).

Case Summary, From the Brief of Appellee Perkins Coie LLP:

One year ago, the President did something no other president had done before: issue an executive order declaring a law firm whose clients and representations he dislikes “dishonest and dangerous” and deploying the levers of federal power to try to put the firm out of business. That was a perilous moment for appellee Perkins, the legal profession, and the rule of law. Nine law firms, cowed by the threat of firm-ending sanctions, “settled” with the President. But Perkins, followed by Jenner, WilmerHale, and Susman, sued to defend themselves and their clients. Four different district judges recognized the President’s executive orders for what they are: shocking abuses of power that trample the constitutional rights of the law firms and their clients. This Court should recognize the same.

The government cannot “use the power of the State to punish or suppress disfavored expression.” Yet here, the President did not hide his intent to punish Perkins for its expression and that of its clients. He openly declared that he targeted Perkins because it represented his “failed” opponent in the 2016 election, challenged election laws alongside so-called “activist donors,” and brought purportedly “partisan lawsuits,” including “against the Trump Administration.” The President designed the Order to do more than just damage Perkins; he intended to intimidate the bar into submission.

Case Summary, From the Brief of Appellee Mark Zaid:

The government cannot “use the power of the State to punish or suppress disfavored expression.” Nat’l Rifle Ass’n of Am. v. Vullo. This case concerns an unconstitutional policy enacted to do just that. Shortly after taking office, the President issued a memorandum (the Presidential Memorandum) targeting the security clearances of a sprawling group of his perceived enemies, their lawyers, and their family members. As interpreted by the relevant agencies, the Presidential Memorandum constituted a directive to disregard then-existing procedures and institute a blanket revocation of the security clearances of those it named. Appellant Mark S. Zaid, an attorney who has represented government whistleblowers, is among those whose clearances were revoked...

Rather than contesting whether they retaliated against Mr. Zaid or deprived him of the processes to which he was entitled under the applicable regulations, Appellants double down on the extraordinary position that their unlawful actions are entirely insulated from judicial review.

Statement of Issues, From the Brief of Appellee Perkins Coie LLP:

Whether the district court properly granted summary judgment
Whether Perkins is entitled to summary judgment on the additional ground (raised but not reached below) that Sections 1, 3, and 5 violate the separation of powers.

Statement of Issues, From the Brief of Appellee Mark Zaid:

Whether a court may review a policy providing for the revocation of a group of security clearances without process or individualized review.
Whether the district court abused its discretion in granting a preliminary injunction.

Resources:   

IRS Donor Disclosure Law: What First Amendment Standard of Review Applies? (The Buckeye Institute v. Internal Revenue Service) Apr 29, 2026

Show notes

Episode 50: The Buckeye Institute v. Internal Revenue Service

The Buckeye Institute v. Internal Revenue Service, argued before Senior Judge R. Guy Cole, Jr., Judge Richard Allen Griffin, and Judge Chad A. Readler of the United States Court of Appeals for the Sixth Circuit on April 29, 2026. Argued by Institute for Free Speech Senior Attorney Brett Nolan (on behalf of The Buckeye Institute) and Michael Weisbuch (on behalf of the federal government).

Case Summary, from the Institute for Free Speech website:

The Buckeye Institute filed a lawsuit challenging a tax law that forces the IRS to demand that nonprofit charities disclose the private information of their largest donors each year. Represented by attorneys at the Institute for Free Speech and its own attorneys, Buckeye’s lawsuit says the law violates the First Amendment and the requirement chills free speech and association.

The IRS has admitted that it does not need these donor records, and it issued a rule in 2020 to stop collecting the same from other tax-exempt groups that are not classified as section 501(c)(3) nonprofit charities. The agency noted in that 2020 rulemaking that its collection of this sensitive personal data on Form 990 Schedule B “poses a risk of inadvertent disclosure” of private, non-public information. Even though the IRS has stated in similar contexts that it would prefer not to collect this information from charities, federal law requires doing so for 501(c)(3)s.

The lawsuit claims that Buckeye’s work “would be significantly damaged” if it could not maintain the confidentiality of its donor relationships, as Buckeye’s supporters “risk retribution from some who oppose its mission.” The recent leak to ProPublica of “a vast trove of Internal Revenue Service data on the tax returns of thousands” of individual taxpayers and other IRS leaks understandably give financial supporters of certain charities, including Buckeye, justified pause...

A special procedure in federal law allows federal appellate courts to review a ruling before the case is decided. That’s the situation in this appeal. The government disagreed with Judge Watson’s ruling that exacting scrutiny applied, and asked the appeals court for permission to review his opinion. Both Judge Watson and the Sixth Circuit granted the request for review.

Statement of Issues, from the Appellee’s Brief:

Whether exacting scrutiny governs a First Amendment challenge to 26 U.S.C. § 6033(b)(5)’s requirement that nonprofit organizations disclose their “substantial contributors.”
Whether the Court can enter judgment against the plaintiff-appellee, determining that § 6033(b)(5) does not violate the First Amendment, without affording the plaintiff-appellee an opportunity for discovery or factual development.

Resources:   

Institute for Free Speech case page (contains all documents)
Opening Brief for the Appellant
Appellee’s Brief
Sixth Circuit Order Granting the Petition for Interlocutory Review
Institute for Free Speech Blog Post, “Court: IRS Donor Disclosure Law Must Overcome Exacting Scrutiny”

The Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment. If you’re enjoying the Free Speech Arguments podcast, please subscribe and leave a review on your preferred podcast platform. To support the Institute’s mission or inquire about legal assistance, please visit our website: www.ifs.org

Can Government Retaliate Against Critics by Launching an Investigation and Demanding Documents? (Media Matters for America v. Federal Trade Commission) Apr 13, 2026

Show notes

Episode 48: Media Matters for America (MMFA) v. Federal Trade Commission

Media Matters for America v. Federal Trade Commission, argued before Judges Patricia A. Millett, Robert L. Wilkins, and Gregory G. Katsas of the United States Court of Appeals for the D.C. Circuit on April 13, 2026. Argued by Nathaniel A.G. Zelinsky (on behalf of Media Matters of America) and H. Thomas Byron, III (on behalf of the Federal Trade Commission).

Case Summary, adapted from the Brief for the Plaintiff-Appellee Media Matters:

When Elon Musk purchased X, he modified the rules about violent posts and misinformation, laid off staff responsible for moderating the site, and reinstated accounts of white supremacists and conspiracy theorists. As a result, MMFA alleged that extremist content surged.

MMFA is a nonprofit media watchdog that chronicled what it described as the increasingly disturbing content on X. In November 2023, one of Media Matters’ articles about X went viral. It claimed advertisements for some companies, including Apple and IBM, were still appearing alongside pro-Nazi and antisemitic content.

The article struck a nerve and, along with other reporting about X, has made MMFA a target for Musk and his allies, including FTC Chairman Andrew Ferguson, who blamed the organization for advertisers leaving the site. Musk immediately vowed to bring a “thermonuclear lawsuit” against MMFA.

Musk’s company also filed suit in the Northern District of Texas—not in California, as required by X’s terms of service. Meanwhile, Stephen Miller—today, the White House Deputy Chief of Staff—called on “conservative state Attorneys General” to investigate MMFA for its speech. In response, Texas and Missouri issued intrusive document demands to MMFA.

The district court granted a preliminary injunction blocking the FTC investigation of MMFA, finding that it violated the First Amendment. The FTC appealed.

Statement of the Issues, from the Brief for the Plaintiff-Appellee MMFA:

Whether the district court had jurisdiction.
Whether Media Matters has a cause of action.
Whether the FTC forfeited its exhaustion argument.
Whether the district court clearly erred in finding retaliation.
Whether the district court clearly erred in finding the CID would deter a person of ordinary firmness from speaking.
Whether the district court abused its discretion in balancing the equities.

Resources:   

The Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment. If you’re enjoying the Free Speech Arguments podcast, please subscribe and leave a review on your preferred podcast platform. To support the Institute’s mission or inquire about legal assistance, please visit our website: www.ifs.org

Can Government Punish Nondisruptive Private Speech of Its Employees? (Hussey v. City of Cambridge, et al.) Apr 08, 2026

Show notes

Episode 47: Hussey v. City of Cambridge, et al.

Hussey v. City of Cambridge, et al. argued en banc before the United States Court of Appeals for the First Circuit on April 8, 2026. Argued by Jack Bartholet (on behalf of Brian Hussey) and Robert M. Loeb (on behalf of the City of Cambridge officials). 

Case Summary, from the Appellants’ Opening Brief:

“This case raises fundamental questions about a state employee’s right as a citizen to speak out on pending federal legislation — on his own time, at home, via his own private Facebook page, and in a manner that caused no disruption in the eight days before the post came to the attention of his superiors and two months before his suspension — under the First Amendment to the United States Constitution…Plaintiff Brian Hussey is a veteran police officer (and now Sergeant) who is a lifelong resident of the City of Cambridge…

“In February 2021, Hussey re-posted a WHDH news article on his private Facebook page. The article, entitled “House Democrats reintroduce police reform bill named in honor of George Floyd,” referenced proposed federal legislation on police reform —H.R. 7120, titled the “George Floyd Justice in Policing Act of 2020.” Hussey, believing that naming this landmark legislation after someone who had a long criminal and drug history was inappropriate, posted a comment along with the article’s link (featuring a preview that included its headline), writing, “This is what its come to ‘honoring’ a career criminal, a thief and druggie … the future of this country is bleak at best.”

“Hussey did not identify himself as a Cambridge police officer on his Facebook page or in the post, nor did the post in any way reference his position with the police department…The Department then placed Officer Hussey on administrative leave for approximately two months while they investigated…and ultimately issued him a four-day suspension.”

Statement of the Issue, from the Appellants’ Opening Brief: 

Whether the District Court incorrectly applied the balancing test set out in Pickering v. Bd. of Ed. of Tp. High Sch. Dist. 205, Will Cnty., Illinois, 391 U.S. 563 (1968) by determining that the City of Cambridge’s interest in suppressing plaintiff`s speech on a clear matter of public concern based on its distaste for the speech without any evidence of disruption in operations outweighed the interest of Plaintiff and the public at large in free expression and robust public debate.

Resources:   

The Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment. If you’re enjoying the Free Speech Arguments podcast, please subscribe and leave a review on your preferred podcast platform. To support the Institute’s mission or inquire about legal assistance, please visit our website: www.ifs.org

Can Government Refuse Media Credentials Based on a Journalist’s Viewpoint? (Utah Political Watch, et al. v. Musselman, et al.) Mar 17, 2026

Show notes

Episode 46: Utah Political Watch, et al. v. Musselman, et al.

Utah Political Watch, et al. v. Musselman, et al. argued before Judge Timothy M. Tymkovich, Senior Judge Michael R. Murphy, and Judge Robert E. Bacharach of the United States Court of Appeals for the 10th Circuit on March 17, 2026. Argued by Institute for Free Speech Senior Attorney Charles “Chip” Miller (on behalf of Utah Political Watch) and Daniel Vitagliano (on behalf of Utah legislative officials).  

Case Summary, from the Institute for Free Speech case page:

Bryan Schott, a journalist with 25 years of experience covering Utah politics, is fighting back after being denied press credentials under a newly revised policy that appears designed to silence independent reporting. Institute for Free Speech attorneys filed suit on behalf of Schott and his outlet, Utah Political Watch (UPW), against Utah legislative officials who denied Schott’s application for press credentials. The denial came after the Utah Legislature changed its credentialing rules in November 2024 to exclude “blogs, independent media outlets or freelance media,” a change made just weeks after Schott inquired about obtaining credentials for the 2025 session.

Despite receiving press credentials every year they were offered since at least 2013, Schott, a recipient of the National Press Foundation’s Election Journalism Fellowship and Utah’s Best Newspaper Reporter award, was denied access for the 2025 legislative session. The denial followed Schott’s hard-hitting coverage of Senate President Stuart Adams. Schott was blocked from covering key events, including the House GOP’s legislative priorities announcement and the governor’s monthly press conference. Additionally, without credentials, he cannot attend the legislative session itself or daily leadership meetings, participate in Friday media availabilities with the Speaker, or access areas of the Capitol reserved for press coverage.

Statement of the Issues, from the Appellants’ Opening Brief:

Are any of the following allegations sufficient to survive a motion to dismiss a complaint alleging First Amendment violations for viewpoint discrimination, retaliation, prior restraint and unconstitutional vagueness?

A government media credentialing policy that expressly excludes “independent media” from receiving media credentials constitutes viewpoint discrimination against independent voices;
A media credentialing policy that uses subjective and vague terms such as “established reputable news organization,” and “blogs, independent media and other freelance media” affords too much discretion to government officials issuing credentials;
Government officials apply criteria not included in the written credentialing policy, including requiring institutional ownership and editorial control; or,
A media credentialing policy was revised and applied inconsistently to deny credentials and access to a single reporter who had gotten under the skin of elected officials.

Should a preliminary injunction issue to prevent the defendants from denying media credentials based on the viewpoint expressed?

Resources:   

Appellants’ Opening Brief
Appellees’ Response Brief
Our Client’s Story blog
Institute for Free Speech case page (includes all filings)

The Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment. If you’re enjoying the Free Speech Arguments podcast, please subscribe and leave a review on your preferred podcast platform. To support the Institute’s mission or inquire about legal assistance, please visit our website: www.ifs.org

Buckley v. Valeo Expert Panel Discussion Feb 26, 2026

Show notes

Episode 45: The Enduring Legacy of Buckley v. Valeo

January 30, 2026, marked the 50th anniversary of the Supreme Court’s landmark decision in Buckley v. Valeo. To commemorate the anniversary, the Institute for Free Speech convened a virtual panel to reflect on the history of the case and its enduring legacy. Moderated by Kim Strassel of the Wall Street Journal, the panel discussion featured the insights of Bradley A. Smith, Joel Gora, and Eugene Volokh.

About the panel:

Brad Smith is the Founder & Chairman of the Institute for Free Speech and a former Chairman of the Federal Election Commission. He is one of the nation’s foremost experts on campaign finance law and the First Amendment.
Joel Gora is a Professor of Law at Brooklyn Law School and a former attorney for the American Civil Liberties Union. While at the ACLU, Joel was one of three advocates that argued against the law challenged in Buckley v. Valeo before the Supreme Court.
Eugene Volokh is a legal scholar who is the Thomas M. Siebel Senior Fellow at the Hoover Institution at Stanford University and the co-founder of the popular legal blog the Volokh Conspiracy.
Kim Strassel is a member of the Wall Street Journal editorial board. She writes the  All Things with Kim Strassel  newsletter and hosts the associated podcast by the same name.

Resources:

⁠Buckley v. Valeo blog series ⁠
⁠Original Buckley v. Valeo oral argument audio⁠
⁠Expert panel transcript⁠ (Note: The transcript was automatically generated. Please excuse any typos or transcription inaccuracies.)

The Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment. If you’re enjoying the Free Speech Arguments podcast, please subscribe and leave a review on your preferred podcast platform. To support the Institute’s mission or inquire about legal assistance, please visit our website: www.ifs.org

Oral Arguments in the Landmark Case That Saved Democracy (Buckley v. Valeo, 1976) Jan 20, 2026

Show notes

January 30, 2026 marks the 50th anniversary of Buckley v. Valeo, a landmark First Amendment speech clause case. While the podcast normally airs current oral arguments, we thought that it would be interesting to spotlight the oral arguments in this landmark case during month of its anniversary.

Episode 44: Buckley v. Valeo

James L. Buckley, et al. v. Francis R. Valeo, Secretary of the United States Senate, et al. argued before the Supreme Court of the United States on November 10, 1975 and decided on January 30, 1976. Argued by Ralph K. Winter, Joel M. Gora, Brice M. Claggett, and (on behalf of James L. Buckley) and Daniel M. Friedman, Archibald Cox, Lloyd N. Cutler, and Ralph S. Spritzer (on behalf of Francis R. Valeo).

Case Background [from the Federal Election Commission]:

On January 2, 1975, the suit was filed in the U.S. District Court for the District of Columbia by Senator James L. Buckley of New York, Eugene McCarthy, Presidential candidate and former Senator from Minnesota, and several others. The defendants included Francis R. Valeo, Secretary of the Senate and Ex officio member of the newly formed Federal Election Commission, and the Commission itself. The plaintiffs charged that the Federal Election Campaign Act (FECA), under which the Commission was formed, and the Presidential Election Campaign Fund Act were unconstitutional on a number of grounds.

On January 24, 1975, pursuant to Section 437h(a) of the FECA, the district court certified the constitutional questions in the case to the U.S. Court of Appeals for the District of Columbia Circuit. On August 15, 1975, the appeals court rendered a decision upholding almost all of the substantive provisions of the FECA with respect to contributions, expenditures and disclosure. The court also sustained the constitutionality of the method of appointing the Commission.

On September 19, 1975, the plaintiffs filed an appeal with the Supreme Court, which reached its decision on January 30, 1976.

Questions Presented, from the Appellants' Brief:

1. Did the Court of Appeals correctly conclude that the limitations imposed by FECA on expenditures by political candidates and organizations are constitutional?

2. Did the Court of Appeals correctly conclude that the limitation imposed by FECA on expenditures by any person relative to a clearly identified candidate are constitutional?

3. Did the Court of Appeals correctly conclude that the limitations imposed by FECA on contributions to political candidates and organizations are constitutional?

4. Did the Court of Appeals correctly conclude that the disclosure requirements imposed on political candidates, organizations and individuals by FECA are constitutional?

5. Did the courts below correctly conclude that the public financing provisions of FECA and Subtitle H of the Internal Revenue Code are constitutional?

6. Did the Court of Appeals correctly conclude that the method provided by FECA for appointing members of the Federal Election Commission is constitutional?

7. Did the Court of Appeals properly decline to decide whether certain powers conferred upon the Federal Election Commission by FECA are constitutional?

8. Are the powers conferred upon the Federal Election Commission by FECA constitutional?

Resources:  

The Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment. If you’re enjoying the Free Speech Arguments podcast, please subscribe and leave a review on your preferred podcast platform. To support the Institute’s mission or inquire about legal assistance, please visit our website: www.ifs.org

Can Congress Limit Coordination Between a Party and Its Candidates? (National Republican Senatorial Committee, et al. v. Federal Election Commission, et al.) Dec 09, 2025

Show notes

Episode 43: National Republican Senatorial Committee, et al. v. Federal Election Commission, et al.

National Republican Senatorial Committee, et al. v. Federal Election Commission, et al. argued before the Supreme Court of the United States on December 9, 2025. Argued by Noel Francisco (on behalf of National Republican Senatorial Committee), Sarah M. Harris (on behalf of the federal respondents in support of petitioners), Roman Martinez (Court-Appointed Amicus Curiae defending the law), and Marc Elias (Counsel for Intervenor-Respondents DNC, DSCC, and DCCC).

Question Presented, from the Supreme Court docket:

A political party exists to get its candidates elected. Yet Congress has severely restricted how much parties can spend on their own campaign advertising if done in cooperation with those very candidates. 52 U.S.C. § 30116(d).

In an opinion by Chief Judge Sutton, a 10-judge majority of the en banc Sixth Circuit agreed that these so-called “coordinated party expenditure limits” stand in serious tension with recent First Amendment doctrine. App.10a-15a. It nevertheless upheld them as constitutional, both on their face and as applied to coordinated political advertising (“party coordinated communications”), believing the case to be controlled by FEC v. Colorado Republican Federal Campaign Committee, 533 U.S. 431 (2001) (Colorado II). In doing so, the majority acknowledged that in the 23 years since Colorado II, this Court “has tightened the free-speech restrictions on campaign finance regulation,” that “tension has emerged between the reasoning of Colorado II and the reasoning of later decisions of the Court,” and that relevant facts have “changed, most notably with 2014 amendments” to the limits and “the rise of unlimited spending by political action committees.” App.3a-4a, 11a. But it thought “any new assessment of the validity of the limits” remained the Supreme Court’s “province, not ours.” App.14a-15a.

The question presented is:

Whether the limits on coordinated party expenditures in 52 U.S.C. § 30116 violate the First Amendment, either on their face or as applied to party spending in connection with “party coordinated communications” as defined in 11 C.F.R. § 109.37.

Resources:  

Brief for the Petitioners NRSC
Brief for the Respondents FEC
Supreme Court Docket
Sixth Circuit Oral Argument Audio
Institute for Free Speech SCOTUS Amicus Brief
Campaign Regulations Are Unconstitutional, by Bradley A. Smith, The Wall Street Journal

The Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment. If you’re enjoying the Free Speech Arguments podcast, please subscribe and leave a review on your preferred podcast platform. To support the Institute’s mission or inquire about legal assistance, please visit our website: www.ifs.org

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