Arizona Right to Life Political Action Committee v. Betsy Bayless Janet Napolitano, in Her Official Capacity as the Arizona Attorney General

Negative political advertising is nothing new. Whether the mudslinging came in the form of name calling by Abraham Lincoln’s detractors, taunts about Grover Cleveland’s draft-dodging and his illegitimate child — “Ma, Ma, where’s my pa?” — or the more recent and memorable Willie Horton incident — linking Governor Michael Dukakis with a furloughed convict —the rough and tumble of political campaigning has embraced a wide range of political speech. Arizona’s effort to curb such negative political advertising is the genesis of this lawsuit.

We consider here the extent to which a state may regulate political speech in the final days before an election. To limit negative advertising and to afford candidates an opportunity to respond to “negative hit pieces,” the Arizona legislature passed a statute requiring advance notice before distribution of certain political literature and advertising. Specifically, within ten days before an election, a political action committee advocating the election or defeat of any candidate must mail a copy of the communication to the candidate at least twenty-four hours in advance. We conclude that this regulatory scheme, which imposes a severe…