James Madison Center: Court Sides with West Virginians for Life
Bopp, Coleson & Bostrom
October 21, 2008
Court Sides With West Virginians For Life
A federal district court in West Virginia has sided with a West Virginia-based organization in many of its challenges to West Virginia election law.
The ruling will allow West Virginians for Life, Inc., to engage in political speech without fear of violating West Virginia law.
WVFL’s proposed communications discuss a 1993 West Virginia Supreme Court of Appeals decision about state payment for abortions. Because the communications also mention the justice who wrote the decision, Margaret Workman, who is a candidate in the 2008 election for a seat on the court, the communications can bring serious consequences under West Virginia law.
However, ruling on WVFL’s preliminary-injunction motion, Judge Thomas Johnston held that West Virginia’s definition of “political action committee” covers solely those organizations whose only purpose is to support or oppose candidates. This means WVFL is not a political committee and need not bear the burdens West Virginia imposes on political committees. These include registering with the state, designating a treasurer, recordkeeping, limits on contributions received, contribution-source bans, extensive political-committee reporting, and termination requirements.
The court also held WVFL is likely to succeed on its contentions that:
● WVFL is the type of nonprofit corporation that has a First Amendment right to expressly advocate the election or defeat of a clearly identified candidate. This allows WVFL to do the communications no matter how West Virginia defines “express advocacy.”
● Part of West Virginia’s definition of “express advocacy” is unconstitutional. This means WVFL can do communications that may fall under this part of the “express advocacy” definition without having to report them.
● West Virginia’s “electioneering communication” definition is unconstitutional, because it extends beyond broadcast, cablecast, and satellite communications. This means WVFL can do a proposed mass mailing without fear of having to report it as an electioneering communication.
WVFL, a non-profit corporation exempt from federal income taxation, is a non-sectarian and non-partisan organization and is not associated with any political candidate, political party, or campaign committee. It presents information about fetal development, abortion and its alternatives, and euthanasia. It seeks to promote the sanctity of all innocent life by influencing legislation and public policy. It often engages in political speech, including candidate-comparison fliers, candidate-comparisons ads, petitions, and mailings.
“This decision affirms First Amendment principles and an organization’s right to engage in political speech,” said James Bopp, Jr., lead counsel for the WVFL plaintiffs. “This is a victory for the Constitution, the supreme law of the land, over impermissible regulation of speech.”
The action is West Virginians for Life, Inc. v. Ireland, Civil Action No. 1:08-cv-01133, in the United States District Court for the Southern District of West Virginia, and is consolidated with Center for Individual Freedom, Inc. v. Ireland, Civil Action No. 1:08-cv-00190. The complaint, preliminary-injunction brief, and preliminary-injunction orders are available at www.jamesmadisoncenter.org.
James Bopp, Jr. has a national constitutional law practice with the law firm of Bopp, Coleson & Bostrom.