Court Strikes Down Montana Law Requiring Notice to Candidates About Certain Political Ads

It is now possible to take the following steps: Montana Citizens for Right to Work, v. ManganToday, Judge Donald Molloy (D.) ruled in favor of the petition. Mont.):

Montana’s Clean Campaign Act … requires … Political committees are required to provide candidates with copies of all campaign advertisements published within ten (10) days after an election, provided that the ads do not endorse the candidate. The law does not pass constitutional muster….

This is the relevant portion of the statute.

[1]At the specified time, a candidate or political committee must provide candidates listed under subsection (2) any final copy campaign advertising in print media or in broadcast media. This includes all printed materials and media meant for distribution to the public in the 10 day period prior to the election, unless:
[a]The same material had been previously published or broadcast.
[b]The material doesn’t mention or identify the opposition candidate.

[2]All other candidates must receive the material, except those mentioned in endorsements.

[3]The candidates listed under subsection (2) must receive the final copies of the material in subsection (1) at the time indicated.
[a]The material was published, broadcast or distributed to the public at the time it is done.
[b]If the material was disseminated via direct mail, the date indicated by the postmark is applicable.
[c]If material is disseminated and prepared manually, it will be effective on the date the material becomes available for the first time.

[4]A copy of the material must be sent to candidates as per subsection (2) by facsimile transmission (email), hand delivery or facsimile transmission if they do not have access to electronic mail. If direct mail is unavailable, the copy can be sent via mail. If the material is for broadcast media, the copy provided must be a written transcript of the broadcast….

According to the court, the content of the law is content-based because it requires the disclosure contemporaneously. Certain speech. Specifically, the statute demands that the speaker give a copy to all candidates named in the advertisement, “except for candidates mentioned within the context of endorsements.”

[Defendant Montana Commissioner of Political Practices Jeffrey]Mangan asserts that any “cursory exam” of speech incidental to an otherwise content neutral restriction doesn’t make it content-based. Mangan’s correct in pointing out that there are content-neutral inquiries made “to establish whether a rule or law applies to a particular course of conduct”. See Hill v. Colorado (2000). The Supreme Court clarified, however, that a content-based law must be inspected “regardless” of whether the government has a benign motive or a content-neutral justification. Reed v. Gilbert Town (2015). This happens even though the law is not contrary to Montana’s Fair Notice provisions. Because the Fair Notice provisions in Montana do not require endorsements, they are considered different from other non-endorsements. Accordingly, the state “draws distinctions based upon what a speaker communicates.” That is all it takes to be content-based.

The court ruled that the law could not pass “strict scrutiny” for content-based restrictions. This requires that the restriction is “narrowly tailored in order to attain a compelling state interests”.

Mangan maintains Montana’s Fair Notice provision serves three essential interests. (1) It deters corruption or appears to be corruption; (2) it provides information for the electorate and (3) it protects the candidates’ rights to answer late in campaigns. …

In providing information to voters and fighting corruption, courts have always recognized an “important” or a “substantial” right. However, it is unclear whether such interests reach the point of being “compelling.” Mangan’s inability to properly connect the law and either interest can make it difficult for us not to avoid this question. Mangan first presents no evidence to show that disclosures of negative ads for individual candidates is a means to fight corruption. Unlike other disclosure cases regarding political contributions and expenditures, § 13-35-402 “does not regulate any financial aspect of a [political action committee]Participation in the political process.   It imposes an even more harmful burden on speech by preventing, or sometimes even denying, the use of political speech on content grounds. In the absence of such a connection,§ 13-35-402 “cannot pass muster on this basis.”

Mangan also fails to link Montana’s Fair Notice provision with an informed electorate. Unlike many disclosure laws, § 13-35-402 does not require disclosure about a particular candidate or entity to the general public. This disclosure concerns a candidate, an entity, and an individual candidate.   Therefore, disclosures involving “informational” interests are not applicable in this case. This is In Yamada, For example, in the Ninth Circuit’s definition of the pertinent interest, “reporting obligations and disclosure obligations provide information,” To the electorate: Who is speaking?” because “[t]Transparency by his campaign allows voters to be informed and gives proper weight to various speakers and messages. … Montana’s Fair Notice provision in this case requires disclosure to specific, individual candidates, not disclosure of any information to the electorate as a whole.

The law does not require additional disclosure. However, this may be a result of the requirement to disclose. To the contrary, enforcing § 13-35-402 has the potential to “chill” campaign speech in the final days of an election. It is important to be skeptical about claims that a State makes about enhancing citizens’ ability to make informed decisions. It is impossible to achieve an informational goal here, regardless of how compelling it may appear.

This leaves the only interest of the State in giving candidates the right to reply to campaign ads on the day before an election. This notion is perfectly acceptable in a political environment. Last-minute negativity, however, is an actuality regardless of whether it’s endorsed.

Mangan’s research hasn’t shown that “false” information is more likely in last-minute advertisements than any other advertising. It was initially thought Mangan had a state interest in correcting “false data.” Mangan’s argument is that the state has a legitimate interest in correcting any “false information” not relevant here. Nonetheless, Mangan’s argument is based almost entirely on the synonymous treatment of false and negative speech…. [T]He stated that the state cannot seek to inflict fraud by outlawing an entire category of speech based only on their content and without any necessary connection to the threat to which they are trying to prevent. The record shows that Montana’s “right to reply” doesn’t provide an compelling reason for the restrictions it has placed upon “negative” speech. Mangan simply denounced “negative campaigning”, and although the Court might disagree that such campaigning is objectionable, it does not provide a basis for interfering in core rights under the first amendment.

Mangan also failed to show that the statute was narrowly tailored in order to meet the identified state interest. A statute can be narrowly tailored only if it targets the source of the problem it is trying to address. The state should use a more restrictive option if it serves the state’s imperative interest and is equally effective. This statute is too broad and not enough inclusive.

Montana’s Fair Notice requires disclosure in any context, except endorsements. Mangan’s argument focuses on Mangan’s right to reply to negative advertisements, but the statute requires disclosure even in neutral advertising contexts. A mailer that contained only the voting records for two candidates and no commentary would fall under disclosure if it was sent by a political organization. The law therefore is broad.

Also, the law is too narrow. A statute should not be applied to narrow tailoring. More speech If it is required to protect a government interest, the statute may fail strict scrutiny. too little speech.” Underinclusivity is a First Amendment concern. The State may regulate one problem aspect and decline to regulate the other. Similar to the previous. The disclosure rule is only applicable for the last ten days after an election. Mangan has not provided any supporting evidence, particularly in regard to Mangan’s ten-day statute. Montana law makes this a problem because absentee votes are delivered to voters only 25 days before the election.

Certain types of communication are not covered by the law. Mangan asserts that oral communication differs from printed communication. However, this time he does not provide evidence. The current law does not require disclosure if candidates or members of a political action committee attended a town-hall meeting where they disparaged an opponent. Additionally, [Plaintiff]Montana Citizens insisted that this provision did not cover social media and the internet. Mangan countered by citing regulatory authority which outlines timing requirements for “broadcast medium”. [and] digital media.” While Montana Citizens conceded this point at oral argument, it seems doubtful that the regulation insulates the statute from an inclusivity problem in light of the fact that§ 13-35-402 only references “broadcast media,” which does not include internet.

It also does not apply to speakers other than candidates and members of political action boards. You can find the full text of this statute here. Bayless, For example, the Ninth Circuit ruled that a similar Arizona law was unconstitutional because it applied only to candidates and political action committees. Because it also includes candidates, Montana’s law seems more narrow than Arizona. Mangan doesn’t show that political action committees or candidates are the main groups involved in negative, last-minute electoral advertising. Mangan’s evidence would be sufficient to show that Montana’s Fair Notice provisions could be appropriately scaled up or down depending on the organization’s level of political advocacy. [or candidate] engages.” … “Organizations that frequently engage in political speech can be required to disclose more information than organizations that only do so occasionally.” … But the record is silent on this point and as it stands, individuals, other organizations, and the press are all “free to place as many negative, misleading or confusing advertisements as they like, none of which are subject to the[]Notice requirement

My friend Matt Monforton was the attorney for the plaintiffs.