Imagine receiving the following message on your telephone answering machine:
Hello, this is Betty, one of your neighbors. I’m calling to share some thoughts about voting on May 8th of this year. Let me tell you, I’m a Republican and my husband John is an Independent, and we agree on one thing–what are we doing sending Congressman McHenry back to Washington? McHenry is not one of us. McHenry’s politics and personal life style is going to blow up in our face sooner or later. Remember DeLay from Texas, Foley from Florida, and Senator Craig from Idaho. We are also voting for a marriage amendment in May and McHenry is not that kind of Conservative. McHenry is not one of us. Bye now
Does this robocall expressly advocate the defeat of Congressman McHenry? More specifically, under the Federal Election Commission’s (FEC) regulatory definition of “expressly advocating,” does the robocall use words, which in context can have no other reasonable meaning than to urge the defeat of Congressman McHenry? Is it the case that this robocall, 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 defeat of Congressman McHenry because the electoral portion of the communication is unmistakable, unambiguous, and suggestive of only one meaning; and because reasonable minds could not differ as to whether it encourages actions to defeat Congressman McHenry or encourages some other kind of action?