ALEXANDRIA, VA – In response to a lawsuit filed by the Center for Individual Freedom (“CFIF”), a federal district judge this week ruled that significant portions of West Virginia’s statutory scheme regulating ads run by independent organizations in the months and weeks leading up to elections are unconstitutional.

The 92-page decision, issued Monday by Judge Thomas Johnston of the U.S. District Court for the Southern District of West Virginia in Center for Individual Freedom, Inc. v. Tennant, among other holdings, rejected the state’s latest attempt to expand the definitions of speech known as “electioneering communications” and “express advocacy” – and force burdensome disclosure requirements related thereto – beyond what the U.S. Supreme Court has ruled constitutionally permissible. 

The end result is that CFIF and other similarly situated organizations maintain their rights to use general funds to air issue ads and engage in other speech during election periods that mention candidates for state and local offices in West Virginia without being forced to file burdensome disclosure reports divulging all their donors, provided they do not expressly advocate their election or defeat.

The decision follows two preliminary injunctions secured by CFIF against enforcement of relevant portions of the West Virginia statute in 2008, when CFIF ran ads and engaged in other activities addressing issues of public importance leading up to that year’s elections.  In response to those injunctions and subsequent U.S. Supreme Court precedent, the West Virginia legislature several times sought to amend its law, each time in ways that ran afoul of the First Amendment.

“Regulating election time speech is like performing surgery on the beating heart of our democracy.  You do only what is truly essential, using only the sharpest scalpels and the greatest care,” said Tom Kirby, a partner at the Washington, D.C. firm Wiley Rein LLP and CFIF’s lead counsel in the lawsuit.
 
“West Virginia's approach was more like a holiday turkey shoot.  After three rounds of legislation, West Virginia laws still were shot through with constitutional violations, as Judge Johnston's opinion painstakingly points out,” said Kirby.

CFIF President Jeffrey Mazzella added, “This decision confirms once again that the First Amendment simply cannot be shoved aside by legislators all too willing to cavalierly squelch free speech and association in an effort to shield themselves and their actions from public criticism.  Moving forward, we look forward to vigorously exercising our First Amendment rights on issues of public importance in West Virginia.”

CFIF has a long history of speaking out on public policy issues, as well as vindicating its rights in the courts when unconstitutional laws stand in its way.  In addition to the victory secured this week, CFIF has prevailed in federal court challenges to campaign finance statutes that, similar to West Virginia’s, were unconstitutionally vague and overbroad in Louisiana and Pennsylvania in 2006 and 2007, respectively.   CFIF has a similar lawsuit pending in federal court in Illinois and is awaiting a decision on its motion to intervene as a defendant in Van Hollen v. Federal Election Commission in the U.S. District Court for the District of Columbia.

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