Reed Implications – Non-Sign Code Cases
Christina Estes-Werther
ACAA Summer Conference, May 20, 2016
Elections/Contributions
Wolfson v. Concannon, 811 F.3d 1176 (9th Cir. 2016)
A candidate for elected judicial office alleged that Arizona Code of Judicial Conduct prohibitions on judicial candidates personally soliciting or accepting campaign contributions,and soliciting funds for other candidates or publicly endorsing other candidates are an unconstitutional restriction on candidate's political speech and campaign activities. The Court of Appeals held that the rules did not violate the First Amendment sincethere was a compelling interest in preserving public confidence in the integrity of sitting judges and the rules were narrowly tailored. The Court rejected the plaintiff’s argument that recusal and contribution limits were a least restrictive means since recusals would cause significant disruption to the court process and contribution limits would not eliminate the improper appearance of a judicial candidate soliciting campaign funds.
Wagner v. Fed. Election Comm'n, 793 F.3d 1 (D.C. Cir. 2015) cert. denied sub nom. Miller v. F.E.C., 136 S. Ct. 895, 193 L. Ed. 2d 789 (2016)
Federal contractors brought action against Federal Election Commission (FEC), alleging that provision of Federal Election Campaign Act (FECA) that barred individuals and firms from making federal campaign contributions while they negotiated or performed federal contracts violated contractor's First Amendment. The issue was narrowed to the application of contributions by an individual contractor to a federal candidate or political party.
The court found sufficient evidence demonstrating the risk of quid pro quo corruption and its appearance, and of interference with merit-based administration in government contracting. Since the interests supporting the statute are legitimate and important grounds for restricting campaign contributions and certain related associational freedoms, the Court upheld the statute against the constitutional challenge.
Panhandling
Norton v. City of Springfield, Ill., 806 F.3d 411, 412 (7th Cir. 2015) cert. denied, 136 S. Ct. 1173 (2016)
The Springfield's Municipal Codeprohibits panhandling in its “downtown historic district” and defines panhandling as an oral request for an immediate donation of money but does not include signs requesting money or oral pleas to send money later. Plaintiffs contended that the ordinance is a form of content discrimination. The Court agreed and remanded for the entry of an injunction consistent with Reed.
Norton v. City of Springfield, 15-3276, 2015 WL 8023461, at *1 (C.D. Ill. Dec. 4, 2015)
Following the Seventh Circuit's ruling in Norton I, the City adopted a new anti-panhandling ordinance that prohibited panhandling for an immediate donation within five feet of the solicited person. Plaintiffs challenged the new ordinance alleging content-based discrimination. The Court found that the new ordinance is a content-based restriction because the ordinance continues to prohibit speech that requests an immediate donation but allows other type of speech and the city was unable to meet its burden of strict scrutiny.
Thayer v. City of Worcester, CV 13-40057-TSH, 2015 WL 6872450, at *11 (D. Mass. Nov. 9, 2015)
The City’s panhandling ordinance was challenged as unconstitutional. The Court found that ordinance was content-based since it regulated a particular type of speech and the City’s primary concerns for adoption of the ordinance appeared to be blight on the City and safety and welfare concerns. The Court accepted that the City has a legitimate interest in promoting the safety and convenience of its citizens on public sidewalks and streets but the City’s ordinance is not the least restrictive means available to protect the public and therefore, did not satisfy strict scrutiny. The Court indicated that there are legitimate concerns regarding aggressive panhandlers and public safety and a City must define with particularity the threat to public safety they seek to address, and then enact laws that precisely and narrowly restrict only that conduct which would constitute such a threat.
McLaughlin v. City of Lowell, 14-10270-DPW, 2015 WL 6453144, at *4 (D. Mass. Oct. 23, 2015)
The Court found that the City's definition of panhandling targets a particular form of expressive speech, the solicitation of immediate charitable donations, and applies its regulatory scheme only to that subject matter. Under the provisions, a police officer would have to listen to a person's solicitation and determine whether he was asking for an immediate donation before finding a violation. The panhandling provisions are content-based and since the panhandling provisions were passed to promote tourism, there is not a compelling state interest and it cannot survive strict scrutiny under the First Amendment.
Photographs of Ballots
Rideout v. Gardner, 123 F. Supp. 3d 218 (D.N.H. 2015)
Voters alleged that a New Hampshire statute prohibiting voters from taking and disclosing digital or photographic copies of their completed ballots violated First Amendment. The District Court held that the statute was content-based because it restricts speech on the basis of whether the ballot was marked or unmarked ballots. The Court noted that neither the legislative history nor the evidentiary record compiled provide any support for the view that the state has an actual or imminent problem with images of completed ballots being used to facilitate either vote buying or voter coercion and the statute is not narrowly tailored to further a compelling interest.
Political Speech
Susan B. Anthony List v. Driehaus, 814 F.3d 466, 473 (6th Cir. 2016)
Plaintiff challenged Ohio's political false-statements laws that only govern speech about political candidates during an election. While Ohio's interests in preserving the integrity of its elections, protecting “voters from confusion and undue influence,” and “ensuring that an individual's right to vote is not undermined by fraud in the election process” are compelling, Ohio's laws do not pass constitutional muster because they are not narrowly tailored in their (1) timing, (2) lack of a screening process for frivolous complaints, (3) application to non-material statements, (4) application to commercial intermediaries, and (5) over-inclusiveness and under-inclusiveness.
Com. v. Lucas, 472 Mass. 387, 34 N.E.3d 1242 (2015)
An incumbent candidate filed a challenge that the law regarding false statements was unconstitutional. The Court held that the statute was content-based regulation of political speech, and, thus, was presumptively invalid. The State has not proven that the law is necessary to serve the compelling interest of fair and free elections. The Court found that the law is not necessary nor narrowly tailored to advancing the government’s interest in fair and free elections.
Professional Speech
Rosemond v. Markham, 135 F. Supp. 3d 574 (E.D. Ky. 2015)
A newspaper columnistwho offered advice on parenting techniques was issued a voluntary cease and desist affidavit from the Board of Psychology Examiners after a complaint was filed based on his advice to a reader. The columnist refused to sign it and sued, alleging the threat to end the publication of his column violated his First Amendment Rights to free speech.
The Court found that the Board’s action was content-based because Rosemond’s individualized advice to a reader subject him to the Board's action but generalized information would not have prompted Board action. Finding that Rosemond’s advice column was neither commercial or professional speech, the Court held that the Board took issue with the message that was being conveyed and the Board’s goal to protect the public was not met by the Board’s actions. Further, the Board failed to show that any actual harm from Rosemond's behavior therefore the Board’s action was not narrowly tailored to achieve its purpose.
Robocalls
Cahaly v. Larosa, 796 F.3d 399, 402 (4th Cir. 2015)
A self-described Republican political consultantchallenged South Carolina's anti-robocall statute. The Court found that the statute is a content-based regulation that does not survive strict scrutiny because the statute applies to calls with a consumer or political message but does not apply to calls made for any other purpose. As a content-based regulation of speech, the statute fails strict scrutiny and is not narrowly tailored since it does not the stated objective of protecting residential privacy and tranquility from unwanted and intrusive robocalls.
Solicitation/Distribution
Traditionalist Am. Knights of the Ku Klux Klan v. City of Desloge, Missouri, 2016 WL 705128 (E.D. Mo. Feb. 23, 2016)
Plaintiffs alleged that, underReed, the City's ordinance prohibiting solicitation and distribution is content-based on its face. The Court found that the plaintiffs did not have standing on the solicitation provisions and held that Reed did not apply to the distribution provision since the ordinance prohibited distribution of any item to the occupant of any vehicle “without regard for communicative content.” The Court found the provision content neutral although the Court mentioned the solicitation provisions would have been subject to Reed.
Solicitation (Door-to-Door)
Working Am., Inc. v. City of Bloomington, CV 14-1758 ADM/SER, 2015 WL 6756089 (D. Minn. Nov. 4, 2015)
Advocacy organization alleged that the city’s ordinance requiring a solicitor's license for certain door-to-door solicitors prior to soliciting was unconstitutional. The Court found that the on its face, the ordinance treats individuals differently depending on the function or purpose of their speech since the requirement to obtain a permit is based on the communicative content of the message. For example, a solicitor collecting signatures is not required to obtain a permit while a solicitor asking for a donation must obtain a permit. The Court held the ordinance was content based restriction on speech and was not narrowly tailored to further a compelling government interest since it did not eliminate privacy interruptions but instead only required an added step for a solicitor to obtain a license before interrupting residents. Additionally, the City failed to provide evidence of criminal conduct by solicitors to substantiate its claim that the ordinance was a crime deterrent. Therefore, the ordinance could not withstand strict scrutiny.
State Bar Admission
Thaw v. Lynch, 2:15-CV-01703 JWS, 2016 WL 1045527, at *5-6 (D. Ariz. Mar. 16, 2016)
The Local Civil Rule 83.1 limits eligibility for full admission to the bar of the Arizona District Court to attorneys who are members of the Arizona Bar.Plaintiff’s attorneys who are not Arizona Bar membersallege that the ruleviolates their First Amendment right to free speech, stating that it is content-based discrimination. The Ninth Circuit considers “bar admission restrictions to be time, place, and manner restrictions on speech.” In Reed, the Supreme Court explained that “[g]overnment regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.” Plaintiff’s content-based argument fails because even they acknowledge that rule’s bar admission requirements do not depend in any way on the topic, idea, or message expressed. The Court found that Arizona's bar admission restrictions are narrowly tailored, they serve a significant governmental interest, and they leave open ample alternative channels of communication.
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