This article originally provided by The Charleston Gazette

April 23, 2008

Election ad restrictions loosened

By Andrew Clevenger
Staff writer

A federal judge granted a partial injunction Tuesday to an out-of-state advocacy group that wants to run political ads in West Virginia, ruling that state laws covering political advertising are too vague.

U.S. District Judge David A. Faber prohibited state officials from enforcing election laws that would have required the Center for Individual Freedom, a Virginia-based organization, to disclose its funding sources on certain kinds of political ads.

"The court has reviewed those provisions of West Virginia law and determined that they appear to be vague," Faber wrote. "Because of this vagueness, it is fair to say that the Center has been discouraged from engaging in speech safeguarded by the First Amendment."

His decision left intact rules that prohibit anonymous "express advocacy" advertising on television and radio - that is, ads that directly encourage voters to support or oppose a particular candidate. However, the injunction allows the center to run issue-driven ads without disclosing its funding.

Faber's ruling removes the restrictions on advertising in mailings, faxes, e-mails, phone banks, leaflets, pamphlets "and other printed or published materials."

State law enacted in 2005 requires disclosure in campaign ads run just prior to elections costing $5,000 or more and applying to clearly identifiable candidates for statewide office.

In filing for a preliminary injunction against Secretary of State Betty Ireland and the state's prosecuting attorneys, the center indicated that it does not intend to "expressly advocate" for or against a specific candidate, but will likely "refer to West Virginia candidates to illustrate its points and ask members of the public to contact these candidates and petition them to take or maintain certain positions."

Thomas Kirby, a lawyer for the center, said Tuesday he was pleased with the judge's ruling.

"My client intends to exercise its First Amendment rights, as the judge has ruled it is entitled to do," he said.

Kirby declined to elaborate on the center's specific plans for West Virginia.

"They'll have to look at the situation, and look at what's productive as the situation lies," he said.

Charleston attorney Nick Preservati, who represents Mercer County Prosecuting Attorney Timothy Boggess (named as a defendant as a representative of the state's prosecutors), said he was pleased that Faber's ruling left some of the restrictions on broadcast advertising in place.

"While I wish it applied to all methods of communication, broadcast being the most frequently used, I think it's a partial victory if not a complete victory for transparent elections," he said.

"I think it's going to let the people decide, not only on the message, but also giving weight to who's delivering the message," he said. "Our concern was that if the electioneering statute was found completely invalid that it would allow entities to run misleading ads without disclosing who's behind the ads, and thus misleading the public."

Several groups filed briefs against the center's efforts, including the West Virginia Association for Justice, the West Virginia AFL-CIO, the West Virginia Education Association, West Virginia Citizen Action Group, the West Virginia Council of Churches and the West Virginia State Democratic Executive Committee.

Three of the four Democrats running for state Supreme Court justice - Bob Bastress, Menis Ketchum and Margaret Workman - received permission to join the defendants in fighting the injunction.

Lawyer Anthony Majestro, who represents the three candidates, said his clients may appeal Faber's ruling to a higher court.

"We are disappointed. We believe that the West Virginia Legislature got it right when they mandated that people who want to exercise their First Amendment rights in the context of an election tell us who they are and who's paying for their ads," he said.

Majestro noted that Faber's ruling allows the center to run ads that don't specifically advocate for or against a specific candidate, but are in effect the functional equivalent by praising or decrying a candidate's position on a certain issue.

"The very idea of running [such ads] two weeks before an election is not to talk about issues, it's to affect the election," he said.

To contact staff writer Andrew Clevenger, use e-mail or call 348-1723.