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Massachusetts Fiscal Alliance v. Sullivan

United States District Court, D. Massachusetts

November 6, 2018

MASSACHUSETTS FISCAL ALLIANCE
v.
MICHAEL SULLIVAN, et al.

          MEMORANDUM OF DECISION AND ORDER

          RYA W. ZOBEL, SENIOR UNITED STATES DISTRICT JUDGE

         Plaintiff Massachusetts Fiscal Alliance challenges the constitutionality of certain Massachusetts campaign finance laws.[1] Now before me is plaintiff's motion for a temporary restraining order and preliminary injunction, Docket # 8, which seeks to enjoin enforcement of Mass. Gen. Laws ch. 55, § 18G's “statement of responsibility, ” “top five contributors, ” and “OCPF website” requirements as applied to plaintiff's proposed election-related communications.[2]

         I. Factual Background

         Plaintiff is a “nonpartisan, nonprofit corporation organized under 26 U.S.C. § 501(c)(4)” which “advocates for fiscal responsibility on the part of the Massachusetts state government, for transparency and accountability, and for increased economic opportunity for all people of the Commonwealth.” See Docket # 1 at ¶ 12.[3]

         As part of its mission to “educat[e] the people of the Commonwealth about the activities of their state government, ” plaintiff seeks to air television, radio, and internet advertisements and disseminate direct mail in advance of the November 6, 2018 elections. See id. ¶¶ 23, 28-37. Since, inter alia, these communications will name a candidate and be disseminated within the 90-day period preceding the election, plaintiff concedes that they constitute “electioneering communications” subject to the requirements of Mass. Gen. Laws ch. 55, § 18G. See Mass. Gen. Laws ch. 55, § 1. Rather than comply with the provisions therein, plaintiff alleges that it will choose to remain silent absent an injunction by this court.[4]

         A. Challenged Aspects of Ch. 55, § 18G

         Plaintiff's claims concern three aspects of Section 18G. As noted above, the law only applies to a narrow category of communications: those which (1) name a candidate seeking election; and (2) are publicly distributed in the 90-day window preceding an election. See Mass. Gen. Laws ch. 55, § 18G. When both of these conditions are met, as would be the case with the advertisements at issue in this case, Section 18G imposes the three requirements that plaintiff challenges.

         First, the law requires that a “statement of responsibility” accompany radio, television, and internet advertisements. For both radio and television, “the chairman or principal officer of the group or association” must state “I am ______ (name) the ______ (office held) of ______ (name of corporation, group, association or labor union) and ______ (name of corporation, group, association or labor union) approves and paid for this message.” Id. In television advertisements, the statement must “be conveyed by an unobscured, full-scene view of the person making the statement.” Id. For internet advertisements, the statement must “appear in a clearly readable manner with a reasonable degree of color contrast between the background and the printed statement.” Id.[5]

         Second, the law requires that television, internet, and certain print advertising, direct mail, and billboards “include a written statement at the bottom of the advertisement or mailing that contains the words ‘Top Contributors' and a written statement that lists the 5 persons or entities or, if fewer than 5 persons or entities, all such persons or entities, that made the largest contributions to that entity, regardless of the purpose for which the funds were given.” Id. This requirement only applies to “contributions in excess of $5, 000 reportable under [Mass. Gen. Laws ch. 55] during the 12-month period before the date of the advertisement or communication ....” Id.

         ______ Third, and finally, the law mandates that non-radio ads must “include a written statement ... that directs viewers to the official web address of the office of campaign and political finance.” Id.; see 970 C.M.R. § 2.20(7) (specifying text: “for more information regarding contributors, go to www.ocpf.us.”).

         II. Legal Principles

         When considering a motion for a preliminary injunction and/or temporary restraining order, the court weighs four factors: “(1) the plaintiff's likelihood of success on the merits; (2) the potential for irreparable harm in the absence of an injunction; (3) whether issuing the injunction will burden the defendants less than denying an injunction would burden the plaintiffs; and (4) the effect, if any, on the public interest.” Sindicato Puertorriqueno de Trabajadores v. Fortuno, 699 F.3d 1, 10 (1st Cir. 2012) (quoting Jean v. Massachusetts State Police, 492 F.3d 24, 26-27 (1st Cir. 2007)). “Likelihood of success is the main bearing wall of the four-factor framework, ” Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 16 (1st Cir. 1996), especially in the First Amendment context. See Sindicato, 699 F.3d at 10.

         III. Application

         A. Likelihood of ...


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