Corporate Free Speech

First Amendment and Issue Advocacy
Voters Education Committee v. Public Disclosure Commission
No. 77724-1
Washington State Supreme Court

The Washington Supreme Court determined that the ads run by the Voters Education Committee (“VEC”) during the 2004 Washington State primary election for Attorney General could be viewed as opposing one of the candidates.  Consequently, the Washington Supreme Court concluded that Washington law required the VEC to disclose the sources of funding.  In its brief, NCLC argued that the VEC’s conduct was protected by the First Amendment and that the Supreme Court’s decision in McConnell v. FEC did not erase that First Amendment protection in jurisdictions like Washington State that have not precisely defined a class of issue ads that may not be presented to voters.

Amicus brief filed 5/3/06.  Oral argument held 5/25/06.  Decision 9/13/07.

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Grassroots Lobbying and the Bipartisan Campaign Reform Act
Federal Election Commission v. Wisconsin Right to Life, Inc.
Nos. 06-969 & 06-070
Supreme Court of the United States

NCLC filed a brief urging the Court to issue clear guidance as it considers whether grassroots lobbying activity should be constitutionally protected from prosecution under the Bipartisan Campaign Reform Act.  In this case, Wisconsin Right to Life, Inc. planned to run a series of ads urging Wisconsin viewers to contact their senators to oppose the-then familiar tactic of judicial filibusters.  However, one of the senators, Senator Feingold, was up for reelection so the the electioneering communications blackout periods of BCRA applied.  In its brief, NCLC argues that the Court should fashion a test protecting such grassroots lobbying but should take care not to adopt a test which leaves speakers uncertain as to whether the First Amendment protects their speech or not.

Amicus brief filed 3/23/07.  Decision 6/25/07.

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Commercial Speech under the First Amendment
BASF Corp. v. Peterson
No. 04-81
Supreme Court of the United States

The Supreme Court declined to grant review and clarify whether the circulation of a truthful magazine article by a corporation deserves First Amendment protection from a consumer fraud lawsuit.  In this case, plaintiffs representing a nationwide class of farmers charge that BASF Corporation intimidated them into foregoing off-label uses of a pesticide it manufactured.  In making this claim, the plaintiffs relied primarily on an article sponsored by BASF which indicated that off-label use of their pesticide was illegal, a claim which is not inaccurate.  In 2005, the Supreme Court granted review in this case and remanded it in light of its decision in Bates v. Dow Agrosciences LLC to consider whether the Federal Insecticide, Fungicide, and Rodenticide Act preempts liability under state law for practices authorized under the act.  Having urged the court to insulate truthful corporate speech from liability when that earlier petition was pending, NCLC continued to believe that corporate speech continues to deserve increased First Amendment respect and re-filed in support of review.

Amicus brief in support of cert. filed 8/11/06.  Cert. denied 11/13/06.

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Grassroots Lobbying Ads and the Bipartisan Campaign Reform Act
Wisconsin Right to Life v. Federal Election Commission
No. 04-1581
Supreme Court of the United States

Agreeing with NCLC, the United States Supreme Court reversed and remanded the three-judge district court's decision that McConnell v. F.E.C. precluded any constitutional challenge to the Bipartisan Campaign Finance Reform Act. Underscoring the centrality of grassroots lobbying to the core concerns underpinning the First Amendment, NCLC urged the Supreme Court to resolve this as-applied constitutional challenge to the Act and find that ads which concern active legislative issues and which urge viewers to contact their elected representatives should be given First Amendment protection. Without such protection, the Act would not permit grassroots lobbying ads to be aired within sixty days of a general election and thirty days of a primary election. NCLC will monitor developments as the district court considers whether grassroots lobbying deserves full First Amendment protection.

Amicus brief on the merits filed 11/14/05. Decision 1/23/06.

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Grassroots Lobbying Ads and the Bipartisan Campaign Reform Act
Wisconsin Right to Life v. Federal Election Commission
No. 04-1581
Supreme Court of the United States

Underscoring the centrality of grassroots lobbying to the core concerns underpinning the First Amendment, NCLC urged the Supreme Court to resolve this as-applied constitutional challenge to the Bipartisan Campaign Reform Act and find that ads which concern active legislative issues and which urge viewers to contact their elected representatives should be given First Amendment Protection.  Without such protection, the Act would not permit grassroots lobbying ads to be aired within sixty days of a general election and thirty days of a primary election.

Amicus brief on the merits filed 11/14/05.
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Commercial Speech under the First Amendment
BASF Corporation v. Peterson
No. 04-81
U. S. Supreme Court
 
In this case - in which cert. was granted, the judgment vacated and the case remanded to the Minnesota Supreme Court for further consideration in light of Bates v. Dow Agrosciences LLC (a case in which the Litigation Center also filed) - NCLC urged Supreme Court review of the extent to which the First Amendment protects corporate speech in consumer fraud cases, here an admittedly truthful article that BASF placed in an industry publication that a jury found misleading.  NCLC argued that the Court has sent conflicting signal on the treatment of commercial speech and should take this opportunity to clarify the commercial speech doctrine and to hold that the "commercial speech label" should not dictate the level of constitutional protection on matters of public policy.
 
Brief in support of certiorari filed 9/24/04.  Cert. granted 5/2/05.  Judgment vacated and case remanded to the Minnesota Supreme Court 5/2/05.

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Campaign Finance
Voters Education Committee, et al. v. Washington State Public Disclosure Commission, et al.
No. 04-2-23551-1 (SEA)

Amicus brief in support of Plaintiffs' motion for summary judgment filed 11/19/04.

State of Washington ex rel. Washington State Public Disclosure Commission v. Voters Education Committee
Superior Court for the State of Washington for King County
No. 04-3-33247-8 (SEA)

This case arose from issue ads that were aired by the Voter Education Committee (VEC) prior to the 2004 Washington State Democratic primary for Attorney General.  The ads discussed the public record of Intervenor Deborah Senn, a Democratic primary candidate, during her term as the Washington State Insurance Commissioner.  The Washington State Public Disclosure Commission (PDC) believed that the VEC's ads violated Washington State law in that the VEC had not registered with the PDC or complied with Washington State disclosure requirements.  The VEC filed suit for declaratory judgment that its ads were issue ads protected by the First Amendment and by the Washington State Constitution.  NCLC's amicus brief supports VEC's motion for summary judgment, arguing that the VEC's ads constituted issue advocacy rather than express advocacy, and are therefore outside the scope of the Washington statutes.  Further, NCLC argues that notwithstanding the U.S. Supreme Court's decision in McConnell v. Federal Election Commission, 540 U.S. 93, 124 S. Ct 619 (2003), the distinction between express and issue advocacy is still in force and was not eliminated by McConnell.  NCLC asserts that the PDC's contention that any speech attacking a candidate's "character" is express advocacy is implausible, and finally, that VEC's advertisements did not attack Intervenor Senn's character, but rather, simply raised questions about her performance of her public duties as Insurance Commissioner.

Motion for leave to file an amicus brief in opposition to Plaintiffs' motion for summary judgment filed 11/24/04.  Oral argument held 12/3/04.  Order granting motion for leave to file brief amicus curiae 12/15/04.

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Abusive Discovery In Violation of the First Amendment
In Re: All Asbestos Litigation Filed by the SimmonsCooper Firm, LLC., v. Chesterton, Inc., et al.
In the Circuit Court Third Judicial Circuit, Madison County, IL

Counsel for Plaintiffs in numerous asbestos actions pending in Madison County, Illinois have served discovery demanding to know if the defendants are members of one of thirty-three business organizations, including the U.S. Chamber of Commerce, and the extent of defendants' financial support of those organizations.  NCLC has filed an amicus brief objecting to the discovery as violative of both defendants and the Chamber's First Amendment Rights to freedom and privacy.
 
Amicus brief filed 6/25/04.

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