NOM Challenges Florida’s New “Wolf in Sheep’s Clothing” Rules on Campaign Speech

James Madison Center for Free Speech
1 South 6th Street
Terre Haute, IN 47807

September 27, 2010
Contact: James Bopp, Jr.
Phone: 812-232-2434; Fax 812-235-3685

NOM Challenges Florida’s New “Wolf in Sheep’s Clothing” Rules on Campaign Speech

National Organization for Marriage (“NOM”) has filed suit in federal court challenging Florida’s restrictions on ads and mailings that reference candidates positions on issues. NOM wants to run radio and television ads, send mail directly to Florida residents, and post copies of these items on its web page. These items all address the issue of marriage. In particular, the items focus on candidates positions concerning traditional and gay marriage, including civil unions. NOM simply wishes to exercise its Freedom of Speech rights under the First Amendment, rights recognized and upheld by the U.S. Supreme Court.

NOM consistently supports traditional marriage, and, ordinarily, NOM should be free to address the marriage issue. However, Florida law currently restricts NOM’s right to speak freely about the current issues surrounding traditional and gay marriage. The law does so by imposing a significant number of regulations on NOM and similar groups that wish to express their views. These regulations model the regulations imposed on full-fledged “Political Committees.” The Supreme Court has recognized that the “Political Committee ” regulations are particularly demanding and burdensome and can only be applied to select groups, of which NOM is not a part. Florida law, however, creates a new title for groups like NOM while imposing the same demanding requirements, even though NOM is not a “Political Committee.” Florida’s new title for NOM and similar groups is “Electioneering-Communications Organization.” By using a new title to apply the demanding “Political Committee” regulations on NOM and similar groups, Florida law has essentially created a “wolf in sheep’s clothing” which consumes the resources of – and stops the spreading of ideas by – NOM and similarly situated groups.

The impact of this law is concealed because it does not directly ban NOM’s speech that references gay marriage or similar issues. The law, instead, requires many groups that want to convey messages concerning relevant issues at election, such as gay marriage, to register as an “Electioneering-Communications Organization.” By registering, NOM then becomes subject to a host of laws that burden and consume its resources and that ultimately silence NOM’s voice. These regulations require hiring skilled treasurers, setting up special bank accounts, keeping detailed records, and complying with extensive reporting and termination requirements. In addition to these requirements, failure to comply with the smallest detail is a criminal violation and subjects these groups to potential jail time and severe penalties. In other words, the Florida law scares even the bravest of citizens into a quiet, humble submission. This law runs completely contrary to American Tradition and the First Amendment, as the First Amendment has always been aimed at protecting speech, not silencing it.

James Bopp, Jr., the lead attorney representing NOM and head counsel for the James Madison Center, is determined to expose Florida’s “wolf in sheep’s clothing” laws that suppress speech. The case filed seeks to have this law declared unconstitutional so that Florida cannot enforce it and NOM can be free to speak, as guaranteed by the First Amendment. He states: “This case is simple. National Organization for Marriage wants to speak to Florida residents about pressing issues, and Florida law creates a significant barrier preventing the residents from hearing about these issues. Florida law does not directly oppose the Supreme Court, though, as it created a new title for an old problem. Essentially, it painted a red apple orange and is now claiming it is an orange, rather than an apple. It is easy to see beneath the new title, though, and recognize that this law is as impermissible as past laws addressed by the Supreme Court that burden these groups with significant compliance requirements. Therefore, the challenged provisions should swiftly be declared unconstitutional and Florida should be enjoined, both preliminarily and permanently, from enforcing them.”

The case is titled National Organization for Marriage, Inc. v. Roberts, and is in the U.S. District Court for the Northern District of Florida. A copy of the filings are available at the James Madison Center’s website

James Bopp, Jr. has a national campaign finance and election law practice with Bopp, Coleson & Bostrom. He is General Counsel for the James Madison Center for Free Speech.