                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 98-4078
                                  ___________

Iowa Right to Life Committee, Inc.;       *
Iowa Right to Life State Political        *
Action Committee,                         *
                                          *
              Appellees,                  *
                                          *
       v.                                 *
                                          * Appeal from the United States
Kay Williams, in her official             * District Court for the Southern
capacity as Executive Director of the     * District of Iowa.
Iowa Ethics and Campaign Disclosure *
Board; Bernard McKinley; James            *
Albert; Gwen Brooks; Marie Thayer;        *
Michael Forrest, in their official        *
capacities as members of the Iowa         *
Ethics and Campaign Disclosure Board; *
Thomas Miller, in his official capacity *
as Iowa Attorney General; John            *
Sarcone, in his official capacity as      *
County Attorney for Polk County,          *
Iowa, and as a representative of the      *
class of County Attorneys in the          *
State of Iowa,                            *
                                          *
              Appellants.                 *
                                     ___________

                            Submitted: June 17, 1999

                                 Filed: August 13, 1999
                                  ___________
Before BEAM and MORRIS SHEPPARD ARNOLD, Circuit Judges, and KYLE,1
      District Judge.
                          ___________

BEAM, Circuit Judge.

       The State of Iowa (Iowa, or the State) appeals from the grant of a preliminary
injunction enjoining the enforcement of one provision of Iowa's Campaign Disclosure-
Income Tax Check-off Act, Iowa Code § 56.13(1), which establishes reporting
requirements for independent expenditures, and a related provision of the Iowa
Administrative Code, Iowa Admin. Code r. 351-4.100(1)(b), that defines express
advocacy. Iowa Right to Life State Political Action Committee (IRLSPAC) and Iowa
Right to Life Committee, Inc. (IRLC), maintain that the provisions are unconstitutional
and therefore the grant of preliminary injunctive relief was appropriate. We affirm.

I.    BACKGROUND

       IRLSPAC and IRLC are affiliated organizations that have as one of their
purposes, political speech. They attempt to highlight, support, and inform the public
about issues relevant to their interests, and the positions and records of candidates on
those issues. IRLSPAC makes direct contributions to candidates and independently
devotes money and resources to advocate the election or defeat of particular
candidates. In the 1996 Iowa elections, IRLSPAC produced several mailings that
encouraged people to vote for certain candidates because they supported issues of
concern to IRLSPAC. The mailings contained the admonition to "vote for" a specific
candidate. The mailings were reported to the Iowa Ethics and Campaign Disclosure
Board (the Board), and otherwise complied with campaign and election laws.



      1
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota, sitting by designation.

                                          -2-
       IRLC, on the other hand, serves a more purely informative role. One of IRLC's
primary expenditures of money is for the publication of "voter guides" that articulate
the voting records and public policy positions of various candidates. IRLC proposes
to continue publishing voter guides that will contain no language such as "vote for,"
"elect," or any other express words of advocacy for the election or defeat of a clearly
identifiable candidate.

       In July 1998, IRLSPAC and IRLC together challenged four Iowa campaign and
election statutes and several related Iowa administrative regulations, under 42 U.S.C.
§ 1983, as violative of their rights protected by the First and Fourteenth Amendments.
They sought a preliminary injunction, which the district court2 granted. The State
appeals the district court's decision only as to Iowa Code § 56.13(1), and Iowa
Administrative Code r. 351-4.100(1)(b).

        The district court found that IRLSPAC's constitutional challenge to section
56.13(1), regulating independent expenditures that expressly advocate the election or
defeat of a candidate, is likely to be successful on the merits because it is not narrowly
drawn to serve a compelling state interest. As to rule 351-4.100(1)(b), which defines
express advocacy, the district court concluded that IRLC would likely succeed on the
merits in its action to have the regulation declared unconstitutionally overbroad because
it chills legitimate First Amendment rights to public discussion of issues.

II.   DISCUSSION

      We review a grant of a preliminary injunction for abuse of discretion, see
National Credit Union Admin. Bd. v. Johnson, 133 F.3d 1097, 1101 (8th Cir. 1998),
and consider four factors: (1) probability of success on the merits; (2) threat of


      2
      The Honorable Ronald E. Longstaff, United States District Judge for the
Southern District of Iowa, presiding.

                                           -3-
irreparable harm; (3) the balance between this harm and potential harm to others if
relief is granted; and (4) the public interest. See Kirkeby v. Furness, 52 F.3d 772, 774
(8th Cir. 1995); Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir.
1981) (en banc). We consider first whether the district court abused its discretion by
granting a preliminary injunction for the statutory provision, section 56.13(1),
regulating independent expenditures.

       As indicated, IRLSPAC makes independent expenditures, such as direct
mailings, that expressly advocate the election or defeat of candidates. Section 56.13(1)
of the Iowa Code regulates those independent expenditures. It provides that when an
organization makes an independent expenditure expressly advocating the election or
defeat of a candidate, the organization must notify the Board and the candidate within
twenty-four hours. This notification gives the candidate knowledge of the independent
expenditure. The section then requires the candidate to essentially make one of two
choices: (1) file a statement of disavowal including an indication of the "corrective
action" taken within seventy-two hours, or (2) do nothing and have the independent
expenditure presumed to be "approved" by the candidate and deemed an expenditure
by the candidate.3


      3
          Section 56.13 provides:

      Independent Expenditures

              1. Action involving a contribution or expenditure which must be
      reported under this chapter and which is taken by any person, candidate's
      committee or political committee on behalf of a candidate, if known and
      approved by the candidate, shall be deemed action by the candidate and
      reported by the candidate's committee. It shall be presumed that a
      candidate approves the action if the candidate had knowledge of it and
      failed to file a statement of disavowal with the commissioner or board and
      take corrective action within seventy-two hours of the action. A person,
      candidate's committee or political committee taking such action

                                          -4-
        The Constitution protects independent expression of views through independent
expenditures, as "core" First Amendment activity. See Colorado Republican Fed.
Campaign Comm. v. Federal Election Comm'n, 518 U.S. 604, 616 (1996). Thus,
restrictions on independent spending requires more compelling justification than
restrictions on ordinary contributions. See Federal Election Comm'n v. Massachusetts
Citizens for Life, Inc., 479 U.S. 238, 259-60 (1986). Indeed, governmental regulations
that "'suppress, disadvantage, or impose differential burdens upon speech because of
its content'" are subjected to the "'most exacting scrutiny'" and thereby must be
narrowly tailored to a compelling state interest. Day v. Holahan, 34 F.3d 1356, 1361
(8th Cir. 1994) (quoting Turner Broad. Sys., Inc. v. Federal Communications Comm'n,
512 U.S. 622, 642 (1994)).

       In Day, we found that a content-based restriction exists when a regulation
"singles out particular political speech–that which advocates the defeat of a candidate
and/or supports the election of her opponents–for negative treatment." Id. at 1360.


      independently of that candidate's committee shall notify that candidate's
      committee in writing within twenty-four hours of taking the action. The
      notification shall provide that candidate's committee with the cost of the
      promotion at fair market value. A copy of the notification shall be sent to
      the board.

            Any person who makes expenditures or incurs indebtedness, other
      than incidental expenses incurred in performing volunteer work, in
      support or opposition of a candidate for public office shall notify the
      appropriate committee and provide necessary information for disclosure
      reports.

Iowa Code § 56.13(1).

      The State argues various narrow interpretations of the provision. However, we
have found no narrowing interpretation by any Iowa court, see Kirkeby, 52 F.3d at
775, and therefore give a plain meaning to the provision.

                                         -5-
Section 56.13(1) also singles out this particular kind of speech–that which expressly
advocates the election or defeat of a candidate–for negative treatment. The State not
only disputes that the speech is subjected to negative treatment, but also justifies the
regulation as narrowly tailored to a compelling state interest. IRLSPAC argues that the
negative treatment arises from what section 56.13(1) requires of a candidate.
According to the IRLSPAC, the candidate must either disparage the independent
expenditure through a statement of disavowal and corrective action, or have the
independent expenditure presumed to be their own–i.e. coordinated.

       The State contends that a statement of disavowal and of the corrective action
taken is not a disparagement or a statement of disagreement with the independent
expenditure, but merely an expression that there was no prior knowledge of the
independent expenditure. We cannot agree with the State's spin on this requirement,
particularly in the framework of our "cherished right to political speech." Federal
Election Comm'n v. Christian Action Network, Inc., 110 F.3d 1049, 1051 (4th Cir.
1997). Disavowal is "a disowning; repudiation; denial." Random House Webster's
Unabridged Dictionary 561 (2d ed. 1997). To the ordinary reader, the implications of
requiring a candidate to file a statement of disavowal along with a statement of
corrective action taken against an independent expenditure, has a strong negative
connotation. Cf. Day, 34 F.3d at 1362 ("[T]he statute's negative impact on political
speech must be a violation of the First Amendment rights of those who wish to make
the independent expenditures at issue.").

       Conversely, if a candidate fails to file a statement of disavowal and corrective
action, then the independent expenditure is presumed approved and deemed an
expenditure by the candidate. The negative impact IRLSPAC imports to this is that an
entirely independent expenditure is automatically presumed to be a coordinated
expenditure, eliminating the independent nature of the speech and thus diminishing its
value. We agree. The Supreme Court in Colorado Republican, considered "whether
the Government may conclusively deem independent party expenditures to be

                                          -6-
coordinated," Colorado Republican, 518 U.S. at 625, and concluded that simply calling
an independent expenditure a "coordinated expenditure," or presuming such, cannot
make it so. See id. at 621-22.

       There is a fundamental constitutional difference between independent and
coordinated expenditures. The difference is that independent expenditures, by their
nature, do not involve prearrangement or coordination. And without the prearranged
or coordinated nature of expenditures, the danger that the expenditure is given as a quid
pro quo for improper commitments is alleviated. See id. at 614-15. Based upon what
section 56.13(1) requires candidates to do, we agree with the district court that it is a
content-based restriction that must be "narrowly drawn to serve a compelling state
interest." Day, 34 F.3d at 1361.

       The State seeks to justify section 56.13(1) as serving three alleged compelling
state interests. The State's first attempt is to show that the provision is narrowly
tailored to deter actual corruption and avoid the appearance of corruption. In view of
the provision's treatment of independent expenditures, we do not think it is narrowly
tailored to this asserted interest, at least absent convincing evidence or findings that
the statute is necessary to combat a substantial danger of corruption of the electoral
system. See Colorado Republican, 518 U.S. at 617-18; cf. Russell v. Burris, 146 F.3d
563, 569 (8th Cir. 1998) (requiring credible evidence of actual undue influence or
corruption). The State neither asserts such evidence nor points us to such a finding.

       The State advances two additional state interests: providing information to the
electorate about candidate funding and therefore a likely direction of future
performance, and the gathering of data necessary to detect violations of campaign and
election laws. We are not persuaded, since a portion of the statute, not challenged by
the IRLSPAC, already requires that those making independent expenditures send notice
to the Board, thus serving the data gathering and electoral information interests.
Therefore, we agree with the district court that IRLSPAC's challenge to section

                                          -7-
56.13(1) is likely to succeed on the merits. The State has not carried its burden of
showing that the regulation is narrowly tailored to a compelling state interest.

       The State also appeals the preliminary injunction against enforcement of
administrative code rule 351-4.100(1)(b), containing a definition of express advocacy.
The definition is relevant to IRLC's interests because express advocacy is subject to
tighter regulation than pure issue advocacy. Failure to comply with the regulations
established for express advocacy can subject the speaker to more onerous
consequences. As indicated, IRLC plans to expend money and resources to produce
voter guides that contain no express words of advocacy for the election or defeat of a
clearly identifiable candidate. IRLC argues that rule 351-4.100(1)(b) acts to chill its
legitimate First Amendment rights to public discussion of issues because the State's
definition of express advocacy is unconstitutionally overbroad and sweeps in a
substantial amount of protected speech, creating uncertainty.

       "Discussion of public issues and debate on the qualifications of candidates are
integral to . . . our Constitution. The First Amendment affords the broadest protection
to such political expression in order 'to assure (the) unfettered interchange of ideas . .
. .'" Buckley v. Valeo, 424 U.S. 1, 14 (1976) (quoting Roth v. United States, 354 U.S.
476, 484 (1957)). This does not mean that government cannot regulate at all or subject
such speech to some amount of scrutiny. It does mean, however, that in this area "'so
closely touching our most precious freedoms,'" precision of regulation must be the
touchstone. Id. at 41 (quoting NAACP v. Button, 371 U.S. 415, 438 (1963)).
Ambiguity and uncertainty in a regulation compel a speaker "'to hedge and trim,'" and
can invalidate the regulation. Id. at 43 (quoting Thomas v. Collins, 323 U.S. 516, 535
(1945)).

       Administrative code rule 351-4.100(1) regulates political speech and therefore
is subject to precision of regulation on pain of invalidation under the First Amendment.
Subsection (a) provides a definition of express advocacy which tracks the language

                                           -8-
approved by Buckley. 424 U.S. at 44 & n.52; see Iowa Admin. Code r. 351-
4.100(1)(a) (finding express advocacy includes statements such as "vote for the
Governor," "re-elect your State Senator," etc.). IRLC does not challenge this
definition, but instead challenges subsection (b), which provides that express advocacy
means communication that:

      b. When taken as a whole and with limited reference to external events
      such as the proximity to the election, could only be interpreted by a
      reasonable person as containing advocacy of the election or defeat of one
      or more clearly identified candidate(s) . . . because:
      (1) The electoral portion of the communication is unmistakable,
      unambiguous, and suggestive of only one meaning; and
      (2) Reasonable minds could not differ as to whether it encourages action
      to elect or defeat one or more clearly identified candidate(s) . . . or
      encourages some other kind of action.

Iowa Admin. Code r. 351-4.100(1)(b).

      To avoid uncertainty, and therefore invalidation of a regulation of political
speech, the Supreme Court in Buckley, established a bright-line test. See Buckley, 424
U.S. at 43-44; see also Christian Action Network, 110 F.3d at 1051. The Supreme
Court's focus was on whether the communication contains "express" or "explicit" words
of advocacy for the election or defeat of a candidate. See Buckley, 424 U.S. at 43-44.

       In contrast, the focus of the challenged definition is on what reasonable people
or reasonable minds would understand by the communication. The definition does not
require express words of advocacy. IRLC argues that under the challenged definition,
an organization like IRLC could avoid all express words of advocacy, such as in
informational voter guides, and still be uncertain as to whether the communication
could be viewed as express advocacy under the regulation. There is no way for IRLC
to know ahead of time whether its speech does or does not meet the definition and


                                         -9-
therefore subjects them to government reporting and disclosure requirements. The
possible intent and effect attributed to the speech creates uncertainty.

       Questions of intent and effect, however, are to be excluded from the analysis,
since a speaker, in such circumstances, could not safely assume how anything he might
say would be understood by others. See id. at 43. A speaker should not be put
"'wholly at the mercy of the varied understanding of his hearers and consequently of
whatever inference may be drawn as to his intent and meaning.'" Id. (quoting Thomas,
323 U.S. at 535). When a definition depends on the meaning others attribute to the
speech, there is no security for free discussion because the definition "'blankets with
uncertainty whatever may be said,'" requiring "'the speaker to hedge and trim.'" Id.

       The Supreme Court has made clear that a "finding of 'express advocacy'
depend[s] upon the use of language such as 'vote for,' 'elect,' 'support,' etc."
Massachusetts Citizens for Life, 479 U.S. at 249 (quoting Buckley, 424 U.S. at 44,
n.52). While Buckley did not provide an exclusive list, there is no doubt that the
communication must contain express language of advocacy with an exhortation to elect
or defeat a candidate. See id.; see also Federal Election Comm'n v. Furgatch, 807 F.2d
857, 864 (9th Cir. 1987) ("[S]peech may only be termed 'advocacy' if it presents a clear
plea for action, and thus speech that is merely informative is not covered by the Act.").
Because we find that the State's definition of express advocacy creates uncertainty and
potentially chills discussion of public issues, there is a likelihood of success on the
merits.

       The State is concerned that persons or organizations will surreptitiously advocate
the election or defeat of a named candidate but avoid legitimate government regulation
and reprisal by simply omitting "magic words" of advocacy. We understand the State's
concern. However, absent the bright-line limitation in Buckley, "the distinction
between issue discussion (in the context of electoral politics) and candidate advocacy
would be sufficiently indistinct that the right of citizens to engage in the vigorous

                                          -10-
discussion of issues of public interest without fear of official reprisal would be
intolerably chilled." Christian Action Network, 110 F.3d at 1051.

        As to the remaining preliminary injunction factors, we view the balance clearly
in favor of issuing the injunction. "The loss of First Amendment freedoms, for even
minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns,
427 U.S. 347, 373 (1976). Furthermore, the potential harm to independent expression
and certainty in public discussion of issues is great and the public interest favors
protecting core First Amendment freedoms. Therefore, the district court did not abuse
its discretion by granting a preliminary injunction.

III.   CONCLUSION

       For the foregoing reasons we affirm the district court's grant of preliminary
injunctive relief.

       A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                         -11-
