Yesterday, the D.C. Circuit heard oral argument in Pursuing America’s Greatness v. FEC, a case that asks whether government can ban political action committees (PACs) from including the name of their favorite candidate in the title of a social media page or website address. Pursuing America’s Greatness (a PAC) bought a website address and Facebook page called “I like Mike Huckabee” to promote Huckabee’s recent bid for the presidency. But the FEC decided in September that PACs violate federal law if they use social media or domain names in this manner, because some voters might confuse PAC webpages with a candidate’s official page.
To anyone who actually uses the internet and social media, this kind of broad ban on using a candidate’s name should sound absurd. There is no evidence that people who use the internet are having difficulty distinguishing between PAC-run fan pages and candidates’ official campaign sites. Indeed, Facebook and Twitter already help users distinguish between fan pages and official campaign pages, denoting verified pages of politicians and other public figures with blue checkmarks next to their names. If that weren’t enough, PACs like Pursuing America’s Greatness already include disclaimers on their websites and social media pages that explain the pages are not authorized or endorsed by any candidate.
The government can and should ban fraudulent pages that masquerade as a candidate’s official website, especially when those pages seek money from supporters. But that doesn’t mean the government should ban PACs from all use of a candidate’s name in a page title—especially when the webpages are not used for fundraising, like in this case. As PLF explained in our friend-of-the-court brief, the FEC’s ban goes too far, violating the First Amendment by banning non-confusing, accurate page names.
Fortunately, the three DC Circuit judges who are considering the case appear to agree. The judges scoffed yesterday at the FEC attorney’s suggestion that this speech ban was really just a disclaimer requirement that forced PACs to clarify their identity. (A disclosure requirement is one that requires a PAC to state in a clear manner that its efforts are not authorized by the candidate it supports). The judges also asked the FEC attorney whether context matters, questioning how the FEC could ban names seemingly non-confusing names like “Steelworkers for Mike Huckabee” or “Children for Mike Huckabee.” The FEC’s answers—like its name prohibition—did not make sense.
The audio from the argument is available here.