Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: MONDAY, March 13, 1995 TAG: 9503140010
SECTION: VIRGINIA PAGE: A-1 EDITION: METRO
SOURCE: JAN VERTEFEUILLE STAFF WRITER
DATELINE: LENGTH: Long
Christian Action Network's commercial lasted just three days on a Houston TV station before public pressure got it pulled.
Other stations wouldn't even give it that much play.
No network would touch it. Neither would national cable stations.
But the Lynchburg-based conservative organization found small independent stations around the country willing to run its ad during the fall of 1992. The commercial charged that Bill Clinton supported ``job quotas for homosexuals'' and that Al Gore was for marriage and adoption by gay couples.
One scene in the ad showed two men arm-in-arm, one holding a leash wrapped around the other's neck. In another scene, a shouting man sported a T-shirt reading ``Gay Father.'' A voice-over asked viewers if this was their vision of a better America.
``These ads,'' says Christian Action Network treasurer Brad Butler, ``ran on little tiny stations where you could buy a one-minute slot for 10 bucks.''
And, he says, ``Those who started running it quickly shut us down anyway.''
Some stations, according to CAN, were getting threatening calls and bomb threats. On Election Day, CBS dubbed it the ``most mean-spirited'' ad of the campaign.
Clinton, of course, went on to win the election. He never responded to the commercial or to two full-page newspaper ads in which CAN challenged his campaign.
Three years later, the federal agency charged with regulating elections has not forgotten it.
The commercial is being analyzed, scrutinized and picked apart in preparation for a federal trial.
Because of the ad's content and its timing before the presidential election, the government argues CAN's commercial is subject to federal election statutes. When speech advocates the defeat or election of a candidate, it can be restricted under federal election laws.
The Federal Election Commission has filed five pounds' worth of briefs, backed up by a 19-page analysis of the commercial by a Brown University professor and 31 supporting documents to bolster its case.
All this to dissect a 30-second video.
Christian Action Network is a nonprofit organization started five years ago by Martin Mawyer, a former Moral Majority employee, in his basement. It raised $1.6 million last year, has a full-time Capitol Hill lobbyist and concentrates on supporting ``traditional family values.'' Mostly, that means lobbying against gay rights and the National Endowment for the Arts, and for school prayer.
The case has made for some interesting bedfellows.
The Virginia chapter of the American Civil Liberties Union, rarely on the same side of issues as CAN, is watching the case with interest. The ACLU saw the press coverage of the lawsuit last fall and called CAN to see if it could help.
How important is this case?
``The principle is extremely important,'' ACLU legal director Steve Pershing says. ``There's not much that's more important than free political discourse in the heat of a campaign.''
Pershing disagrees with the content of CAN's commercial but will defend it nonetheless.
``I could not disagree more [with the content] because, after all, the ACLU is a passionate supporter of gay rights,'' Pershing says. ``But we're just as passionate about free speech.''
CAN doesn't think it is the group the Federal Election Commission is really after. Mawyer says it's just a warm-up before the FEC goes after its real target - Pat Robertson's Christian Coalition.
``I feel we are the example the FEC wants to set,'' Mawyer says. The agency decided ``to take someone to court that doesn't have the money Christian Coalition has. I think we're just the guinea pigs.''
The Christian Coalition, Butler says, is the ``brass ring.'' By going after CAN first, the FEC can find out what federal courts in Virginia think, maybe even set a favorable precedent, he says.
Christian Coalition's spokesman did not return phone calls seeking comment.
The Democratic Party filed complaints with the FEC in October 1992 against both Christian Action Network and Christian Coalition.
The Christian Coalition complaint accused the Virginia Beach-based organization of raising money as a tax-exempt entity but spending it on pro-Republican activities without registering as a political group.
The FEC began reviews of both organizations shortly afterward. No suit has been filed against Christian Coalition, and the federal agency will not discuss its reviews.
``The government is doing its job, in one sense,'' Pershing says. ``On the other hand, this is a case the federal government should never have taken. Whatever advocacy people engage in at election time should be restrained as little as possible.''
Adam Sohn, a spokesman for the Democratic National Committee, which filed the complaint, says the case is not a free-speech issue, but a tax issue. When groups like CAN receive tax-exempt status as nonprofit organizations, they agree to certain restrictions on their activities. He believes they have violated those rules by being partisan.
``Why should I pay taxes and this organization not pay taxes?'' he asks. ``My taxes are subsidizing their ability to make partisan attacks on the people of their choice.''
U.S. District Judge James Turk will hold a hearing in Roanoke on March 24 on Christian Action Network's motion to dismiss the case before it goes to trial.
Christian Action's attorney is David Carroll of Columbus, Ohio, whose legal briefs are colored with dramatic hyperbole, as when he compares the FEC's ``nibbling at the flesh of freedom of speech'' to ``carnivorous rats'' nibbling the flesh of their prey.
``The FEC, as a typical bureaucracy, wants to expand its own power,'' Carroll says. ``This is an extremely important case. It has the potential of telling the FEC, `Look, you people have gone too far.'''
Exhibit A is the commercial.
While the First Amendment guarantees Americans free speech with only minimal restrictions, election laws limit such speech when it pertains to campaigns.
``This whole question is going to come up again and again and again,'' says political observer Larry Sabato of the University of Virginia. ``It's inevitable, because we've decided to regulate elections and speech during elections.''
People who want to promote a candidate or try to defeat one must do so by forming a political action committee, or PAC, which has strict disclosure laws about contributors and activities.
``You can't regulate political speech out of existence,'' says the ACLU's Pershing. ``You can't require people to speak only through a PAC about the issues of the day, unless - and this is a very narrow standard - it's express advocacy of the election or defeat of a candidate.''
It's the ``express advocacy'' law that the FEC charges CAN violated, along with the rule that corporate funds cannot be used for election expenses.
The case law surrounding ``express advocacy'' makes it clear that very specific words must be used - like ``vote for,'' ``elect'' or ``defeat'' - in order for laws regulating speech to kick in. They have to be words that are unambiguous and open to only one possible interpretation.
Even with those restrictions, Pershing says, the law must be interpreted very narrowly ``for free speech to mean anything.''
But the FEC revised its regulations last year to say that those words don't have to be present if the ads, ``when taken as a whole,'' could only be interpreted by a reasonable person as containing advocacy of the election or defeat of a candidate.
Whether the courts will agree with that interpretation remains to be seen.
FEC spokesman Ian Stirton denies this new regulation is an attempt to expand what speech can be regulated. ``I don't think the commission is trying to broaden the definition of express advocacy,'' he says.
Says Sabato: ``They're calling it a clarification of regulations. Those critical of the FEC would say they're trying to regulate speech.''
Stirton points out that there is a law on the books that says corporations cannot use their money for express advocacy of a candidate. If all those corporations had to do was avoid the words ``elect,'' ``defeat'' and the like, it wouldn't be too hard to get around the law, he says. Therefore, express advocacy must include more than those few words in order for the law to mean anything.
``Obviously, the commission feels of course there was room there for the courts to look at,'' Stirton says.
A lot of people are hoping the Supreme Court will take a case soon to clarify the law. Christian Action Network's case may or may not be the one.
``It might produce an interesting result that clarifies the law, but it might not,'' Sabato says. ``It might be just another opportunity for the courts to sidestep the law.''
To bolster its argument that the video and newspaper ads aimed to defeat Clinton ``when taken as a whole,'' the FEC describes the CAN ad as having ``numerous nonverbal components'' like the visuals, music, editing and production techniques that influence the viewer's response.
``Through its verbal and nonverbal components, the video vividly conveys the message that the viewer's own vision should not include Clinton in the presidency.''
Virginia Tech political analyst Bob Denton agrees that images pack a more powerful punch with viewers than do words and that, ``clearly, our laws have not kept up with technology and manipulation of advertising.''
But it ``scares me to death'' that a regulatory body is policing speech, he says. ``It's certainly not for bureaucrats to interpret political ads.''
Denton proposes a bipartisan board that reviews ads before they air. Taking CAN to court more than two years after the campaign does no good, he says.
``It's just too late now. The message has already done its deed.''
One of the messages in the commercial that the FEC points to as saying ``defeat Clinton'' is a color photo of him that dissolves to an unflattering photo negative.
``That doesn't say vote against Clinton,'' Carroll argues. ``It could just be, `I don't like President Clinton.' Maybe it just says, `I like negative imagery.'''
CAN claims it wasn't trying to get people to vote against Clinton, but to get Clinton to change his position on gay rights.
``Our idea was to hope Bill Clinton would change the promises he made to the gay and lesbian community,'' Mawyer says.
Those promises, he says, were not well-known, and CAN hoped public pressure would make him renege.
``Individually, we didn't like George Bush, either. We weren't hoping to add votes to him.''
The ACLU's Pershing adds: ``Even coming right out and saying, `Clinton is bad,' is not advocating his defeat. They were arguing with Clinton in the press over one issue.
``That is dialogue from the public. It's raucous sometimes, even offensive, but it's totally protected.''
Democratic spokesman Sohn counters: ``That's all fine and good. But make them pay taxes.''
by CNB