Some state laws on political ads are too vague, federal judge rules

By Chris Dickerson | Apr 22, 2008


CHARLESTON – A federal judge on Tuesday agreed with an advocacy group that some state laws concerning political advertising are too vague.

While partially granting the preliminary injunction filed by the Center for Individual Freedom, U.S. District Judge David A. Faber did rule that spending and donor reports for broadcast advertising still are required.

"Protection of freedom of speech in a democratic society is of critical public interest," Faber wrote. "In this case, it appears that several provisions in the West Virginia Election Code are vague, and consequently chill the public's right to speak on political matters. Accordingly, the court finds that the public has a strong interest in having the challenged laws enjoined or clarified."

A 2005 state law regulates a variety of advertising that refers to an identifiable candidate within 30 days of a primary election or 60 days of a general election. The West Virginia primary is May 13. The CFIF sued to have that statute overturned because it wants run ads regarding the state Supreme Court race.

The CFIF had named Secretary of State Betty Ireland -- the state's chief elections officer -- and Mercer County Prosecutor Timothy Boggess -- a representative county prosecutor.

In Tuesday's ruling, Faber noted that a similar federal law applies only to broadcast advertising. The ruling exempts other forms of media such as "mailings, faxes, e-mails, phone banks, leaflets, pamphlets and other printed or published materials."

Saying that the CFIF likely would win its challenge to provisions that forbids direct corporate spending or "independent expenditures" because of vagueness, Faber also limited disclosure reports on those ads that "expressly advocate the election or defeat of a clearly identified candidate."

The president of the West Virginia Association of Justice said her group was disappointed by the full ruling.

"I commend the court for not allowing the secrecy with respect to the
broadcast media," Teresa Toriseva said. "But I don't think it goes far enough. The secrecy still is there.

"I think the Legislature got it right. Whoever wants to speak to West Virginia voters ... I don't know why anybody would want to keep it a secret. They know it tarnishes their message.

"I was pleased to see the broadcast media can't be utilized. I think
the rest of it is unfortunate."

Three Democratic state Supreme Court candidates – Bob Bastress, Menis Ketchum and Margaret Workman – had intervened in the case opposing the CFIF's suit.

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