Majors, Brian v. Abell, Marsha

In the

United States Court of Appeals

For the Seventh Circuit

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No. 02-2204

BRIAN MAJORS, et al.,

Plaintiffs-Appellants,

v.

MARSHA ABELL, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. IP 98-1479-C-M/S—Larry J. McKinney, Chief Judge.

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ARGUED NOVEMBER 1, 2002—DECIDED JANUARY 23, 2003

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Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.

POSNER, Circuit Judge. An Indiana statute, challenged in

this suit as an infringement of free speech, requires that

political advertising that “expressly advocat[es] the election

or defeat of a clearly identified candidate” include “ade-

quate notice of the identity of persons who paid for . . . the

communication,” Ind. Code §§ 3-9-3-2.5(b)(1), (d), and

makes violation a misdemeanor. The district court dis-

missed the suit for lack of federal subject-matter juris-

diction on the ground that the noncandidate plaintiffs

lacked standing and that as to the candidate plaintiffs

the suit was moot.

2 No. 02-2204

The noncandidate plaintiffs are individuals who would

like to take out ads expressly advocating the election or

defeat of particular candidates but are afraid to do so lest

they be prosecuted. The district judge held that they had no

standing to challenge the statute because they had not been

threatened with prosecution (unlike Majors, one of the

candidate plaintiffs) and “apparently” were not even sub-

ject to the statute, which the defendants had argued is

limited to candidates, campaign committees, and the

committee’s agents, despite the statute’s use of the broad

term “persons.”

The judge’s ruling on standing was incorrect. A plaintiff

who mounts a pre-enforcement challenge to a statute that

he claims violates his freedom of speech need not show

that the authorities have threatened to prosecute him,

Virginia v. American Booksellers Ass’n, Inc., 484 U.S. 383, 393

(1988); Sequoia Books, Inc. v. Ingemunson, 901 F.2d 630, 633-34

(7th Cir. 1990); American Booksellers Ass’n, Inc. v. Hudnut,

771 F.2d 323, 327 (7th Cir. 1985), aff’d without opinion, 475

U.S. 1001 (1986); the threat is latent in the existence of the

statute. Not if it clearly fails to cover his conduct, of course.

But if it arguably covers it, and so may deter constitution-

ally protected expression because most people are fright-

ened of violating criminal statutes especially when the

gains are slight, as they would be for people seeking only

to make a political point and not themselves political op-

eratives, there is standing. See Virginia v. American Book-

sellers Ass’n, Inc., supra, 484 U.S. at 392-93; Hoover v. Wagner,

47 F.3d 845, 847 (7th Cir. 1995).

On its face, the Indiana statute applies to all persons

who pay for political advertising that expressly advocates

the election or defeat of a particular candidate. The de-

fendants (various state and local election officials) argue

to us as they did to the district judge that a proper inter-

No. 02-2204 3

pretation of “persons” limits the term to candidates, their

committees, and the committees’ agents. But no Indiana

court has so interpreted the statute—nor did the district

judge, who said only that “apparently” it was so lim-

ited. The website of the Indiana Election Commission,

http://www.in.gov/sos/pdfs/Disclaim.pdf (May 2002),

does not contain the limiting interpretation, but on the

contrary says that the statute applies to “individuals, organ-

izations, or committees who purchase advertisement time

or space or circulate or publish material in support of or

in opposition to a candidate, a political party, or a pub-

lic question” and indeed to “all individuals and political

organizations” who do any of these things (emphasis

added).

The district judge did not doubt that the candidate

plaintiffs, at least, had standing. The principal one, Majors,

had violated the statute and been threatened with prosecu-

tion, though not actually prosecuted. Majors’ standing

might be questioned on the ground that a candidate has

no interest in anonymity that the statute might protect;

for there are no anonymous candidates. But a candidate

can be harmed if his supporters are deterred by loss of

their anonymity from supporting him by paid advertise-

ments. Although it is their interest in anonymity that is

impaired (the candidate has none, as we have said), a

plaintiff who is harmed by the infringement of another

person’s right of free speech has standing to challenge that

infringement. E.g., Virginia v. American Booksellers Ass’n, Inc.,

supra, 484 U.S at 392-93; Secretary of State v. Joseph H. Mun-

son Co., 467 U.S. 947, 954-58 (1984); Shimer v. Washington,

100 F.3d 506, 508-09 (7th Cir. 1996). As these cases explain,

the harm establishes Article III standing; and the easy

deterrability (already noted) of much political speech is a

ground for relaxing the doctrine of “prudential” standing,

which ordinarily precludes a suit by one person to redress

4 No. 02-2204

an infringement of the rights of another even if the infringe-

ment injures the first person as well.

But the judge thought that both Majors’ case and that of

his fellow candidate plaintiffs (whom we need not discuss

separately) had become moot because of his lackadaisical

pursuit both of the litigation and of his political career.

Majors was a candidate for county assessor on the Libertar-

ian Party ticket in 1998 when, on October 28, a week before

the election, he and the other plaintiffs filed this suit and

asked for a preliminary injunction. The election came

and went without the injunction being granted. Majors

was defeated, and the case went into hibernation. Not

until February of 2000 did the plaintiffs make any further

motion in the case. Nor did Majors run for public office

in 2000.

Majors’ inaction, the judge ruled, took the case outside

the rule that when a case is capable of repetition but

avoids review because it cannot be decided in time to

avert mootness, its mootness does not deprive the court

of jurisdiction. Weinstein v. Bradford, 423 U.S. 147, 148-49

(1975) (per curiam); In re Associated Press, 162 F.3d 503, 511-

12 (7th Cir. 1998). The standard example is abortion. A suit

by a pregnant woman challenging a state law limiting the

right to an abortion is unlikely to be decided before the

pregnancy ends one way or another, and so the termination

of the pregnancy is held not to terminate jurisdiction. Roe v.

Wade, 410 U.S. 113, 125 (1973). Challenges to election rules

are treated the same way. Norman v. Reed, 502 U.S. 279,

287-88 (1992); Meyer v. Grant, 486 U.S. 414, 417 n. 2 (1988);

Stewart v. Taylor, 104 F.3d 965, 969-70 (7th Cir. 1997). For all

we know, it wasn’t until shortly before the November 1998

election that Majors was threatened with prosecution, and

by then it was too late for him and the other plaintiffs to

have any hope of invalidating the law before the election

No. 02-2204 5

took place and rendered the suit moot by conventional

standards.

The district judge thus was right not to dismiss the case

the day after the election for lack of jurisdiction. But he was

wrong to dismiss it later merely because Majors hadn’t

pressed the litigation harder or run in the next election. A

candidate plaintiff no more has a duty to run in every

election in order to keep his suit alive than an abortion

plaintiff has a duty to become pregnant again at the earli-

est possible opportunity in order to keep her suit alive.

Politicians who are defeated in an election will often wait

years before running again; obviously this doesn’t show

they’re not serious about their political career. And once

Majors decided that he would not run for county assessor

or some other office in 2000 (we’re not even told whether

the assessor’s term is two years or four years), there was

no reason for him to try to accelerate the lawsuit so that

it could be decided before the 2000 election.

Furthermore, while canonical statements of the excep-

tion to mootness for cases capable of repetition but evad-

ing review require that the dispute giving rise to the case

be capable of repetition by the same plaintiff, e.g., Weinstein

v. Bradford, supra, 423 U.S. at 149; Murphy v. Hunt, 455

U.S. 478, 482 (1982) (per curium); LaRouche v. Fowler, 152

F.3d 974, 978 (D.C. Cir. 1998), the courts, perhaps to avoid

complicating lawsuits with incessant interruptions to as-

sure the continued existence of a live controversy, do

not interpret the requirement literally, at least in abortion

and election cases, Honig v. Doe, 484 U.S. 305, 335-36 (1988)

(dissenting opinion); see Dunn v. Blumstein, 405 U.S. 330,

333 n. 2 (1972); cf. Krislov v. Rednour, 226 F.3d 851, 858 (7th

Cir. 2000); but cf. Van Wie v. Pataki, 267 F.3d 109, 114-15

(2d Cir. 2001)—and possibly more generally, Honig v. Doe,

supra, 484 U.S. at 318-20 and n. 6 (majority opinion), though

6 No. 02-2204

we needn’t worry about that. If a suit attacking an abor-

tion statute has dragged on for several years after the

plaintiff’s pregnancy terminated, the court does not con-

duct a hearing on whether she may have fertility prob-

lems or may have decided that she doesn’t want to be-

come pregnant again. And similarly in an election case

the court will not keep interrogating the plaintiff to assess

the likely trajectory of his political career.

So the suit should not have been dismissed on juris-

dictional grounds, and we turn to the merits. Although

the parties prudently have briefed the merits, we think

it would be premature for us to decide them. For they

may depend on the meaning of the challenged statute,

which only the Indiana courts can determine authorita-

tively. If the statute is as narrow as the defendants claim

it is, it is a straightforward antifraud statute unlikely to

present serious constitutional problems. For on their inter-

pretation it merely forbids the candidate and his organ-

ization to create the impression that independent voices

support him or oppose his opponent, when in fact the

voices are those of the candidate himself, playing ventrilo-

quist. Cf. McIntyre v. Ohio Elections Comm’n, 514 U.S. 334,

351 (1995) (“it [the statute challenged in that case] ap-

plies not only to the activities of candidates and their or-

ganized supporters, but also to individuals acting inde-

pendently and using only their own modest resources”);

id. at 354. But if instead as the plaintiffs argue the statute

reaches all persons, then it is a blanket prohibition of

anonymous campaign-related speech (unless the speech

is costless, for it is only the identity of the payor of polit-

ical advertising that is required to be disclosed), and thus

puts a crimp in political speech by exposing persons who

want to express themselves for or against a particular

candidate to the risk of retaliation. The McIntyre deci-

sion holds that government cannot forbid the distribu-

No. 02-2204 7

tion of anonymous campaign literature. Id. at 357; see also

Talley v. California, 362 U.S. 60, 64-65 (1960).

Several courts have nevertheless upheld statutes ma-

terially identical to the Indiana statute broadly interpreted

to reach “all persons.” They have offered two grounds. The

first is that the statute struck down in McIntyre applied

to issue referenda as well as to candidate elections and

the decision was limited to the statute’s application to

referenda, a distinction with support in the way McIntyre

distinguished Buckley v. Valeo, 424 U.S. 1, 80 (1976) (per

curiam). See 514 U.S. at 356. Second, in McIntyre the

state had defended its statute only on the basis that know-

ing the author of a document helps one to evaluate its

truthfulness, whereas these courts think it a weightier

ground that disclosure “protects the integrity of the elec-

toral process by ensuring that the words of an independent

group are not mistakenly understood as having come from

the mouth of a candidate.” Federal Election Comm’n v. Pub-

lic Citizen, 268 F.3d 1283, 1288 (11th Cir. 2001) (per curiam);

see also Gable v. Patton, 142 F.3d 940, 944-45 (6th Cir. 1998);

Kentucky Right to Life, Inc. v. Terry, 108 F.3d 637, 646-48 (6th

Cir. 1997); Seymour v. Elections Enforcement Comm’n, 762

A.2d 880, 886-87 (Conn. 2000).

These might be thought fragile distinctions. Interest

groups contest referenda just as candidates and parties

contest elections of officials, and so the public interest

in knowing the source of an anonymous contribution to

the debate is as great in the one case as in the other, but

was not great enough to sway the Court in McIntyre. For

we read there that “insofar as the interest in informing

the electorate means nothing more than the provision

of additional information that may either buttress or

undermine the argument in a document, we think the

identity of the speaker is no different from other compo-

8 No. 02-2204

nents of the document’s content that the author is free to

include or exclude.” 514 U.S. at 348. As for the interest

in forbidding the author of campaign literature to “pass

off” his words as those of the candidate, it does not re-

quire revealing the author’s name. Recall that McIntyre

distinguishes Buckley v. Valeo, supra, 424 U.S. at 60-84,

which upheld the compelled disclosure of the identity of

financial contributors to federal election campaigns. 514

U.S. at 353-56.

The fact that the state in our case is advocating the nar-

row reading of its statute indicates its awareness that if

broadly interpreted, in accordance with decisions such

as Public Citizen, the statute may be unconstitutional. The

statutory language supports the broad interpretation,

but literal interpretations are often rejected when neces-

sary to save a statute from being held unconstitutional.

Regional Rail Reorganization Act Cases, 419 U.S. 102, 134

(1974); Green v. Bock Laundry Machine Co., 490 U.S. 504, 527

(1989) (Scalia, J., concurring); Saadeh v. Farouki, 107 F.3d

52, 58-60 (D.C. Cir. 1997); Hall v. Walter, 969 P.2d 224, 229-31

(Colo. 1998); Sassone v. Lepore, 629 A.2d 357, 363-64 (Conn.

1993) (“if literal construction of a statute raises serious

constitutional questions, we are obligated to search for

a construction that will accomplish the legislature’s pur-

pose without risking the statute’s invalidity”); cf. Buckley

v. Valeo, supra, 424 U.S. at 76-81. Indiana’s highest court

has embraced this principle, as explained in A Woman’s

Choice-East Side Women’s Clinic v. Newman, 671 N.E.2d 104,

111 (Ind. 1996) (concurring opinion). Indeed, after we

certified an issue of Indiana election law quite like the one

in this case to the Indiana Supreme Court in Brownsburg

Area Patrons Affecting Change v. Baldwin, 137 F.3d 503, 509-10

(7th Cir. 1998), that court adopted a narrowing interpreta-

tion to preserve the law’s constitutionality. 714 N.E.2d 135,

142 (Ind. 1999). A state court is bound to have a better idea

No. 02-2204 9

of the elasticity of the state’s statutes than a federal court

would have. Cf. Wisconsin Right to Life, Inc. v. Paradise, 138

F.3d 1183, 1186-87 (7th Cir. 1998).

We therefore certify to the Indiana Supreme Court,

pursuant to 7th Cir. R. 52 and Ind. Code § 33-2-4-1, the

following question, upon the answer to which the fur-

ther proceedings in this appeal will depend:

Is the term “persons” in Ind. Code §§ 3-9-3-2.5(b)(1), (d)

limited to candidates, authorized political committees or

subcommittees of candidates, and the agents of such

committees or subcommittees, or does it have a broader

scope, and, if so, how much broader?

One loose end remains to be tied up. In addition to

seeking injunctive relief, the plaintiffs seek damages. As

the unconstitutionality of the statute is debatable, the

defendants are shielded by official immunity from dam-

ages liability. The dismissal of so much of the suit as

seeks damages is therefore affirmed.

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—1-23-03