Petition for Writ of Certiorari — Gaspee Project, et al., Petitioners v. Diane C. Mederos, et al.
Supreme Court briefDec 10, 2021
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No. ________
IN THE
___________
GASPEE PROJECT AND
ILLINOIS OPPORTUNITY PROJECT,
Petitioners,
v.
DIANE C. MEDEROS, STEPHEN P. ERICKSON, JENNIFER
L. JOHNSON, RICHARD H. PIERCE, ISADORE S. RAMOS,
DAVID H. SHOLES, AND WILLIAM E. WEST, IN THEIR
OFFICIAL CAPACITIES AS MEMBERS OF THE RHODE
ISLAND STATE BOARD OF ELECTIONS,
Respondents.
__________
On Petition for a Writ of Certiorari to the
U.S. Court of Appeals for the First Circuit
__________
PETITION FOR A WRIT OF CERTIORARI
__________
CHRISTOPHER E. MILLS
Spero Law LLC
557 E. Bay St. #22251
Charleston, SC 29413
cmills@spero.law
DANIEL R. SUHR
Counsel of Record
JEFFREY M. SCHWAB
Liberty Justice Center
141 W. Jackson St. #1065
Chicago, IL 60604
(312) 637-2280
dsuhr@libertyjustice
center.org
JOSEPH S. LARISA, JR.
Larisa Law
Providence, RI 02903
joe@larisalaw.com
Counsel for Petitioners
i
QUESTION PRESENTED
Rhode Island law requires most issue advocacy
groups that mention a candidate or referendum in a
communication before an election to register with the
State and disclose most donors of at least $1,000. The
law also requires that such communications include a
disclaimer of the sponsoring group as well as an onadvertisement disclaimer of the group’s top five
donors of at least $1,000 during the preceding year.
Does Rhode Island’s on-advertisement donor
disclaimer law impermissibly compel speech in
violation of National Institute of Family & Life
Advocates v. Becerra, 138 S. Ct. 2361 (2018)?
ii
CORPORATE DISCLOSURE STATEMENT
The Gaspee Project, Inc. is a nonprofit, nonstock
corporation incorporated in the State of Rhode Island.
The Illinois Opportunity Project is a nonprofit,
nonstock corporation incorporated in the State of
Illinois. They have no parent companies or publicly
held companies owning stock.
LIST OF ALL PROCEEDINGS
United States Court of Appeals for the First
Circuit, No. 20-1944, Gaspee Project & Illinois
Opportunity Project v. Mederos et al., judgment
entered September 14, 2021.
United States District Court for the District of
Rhode Island, No. 19-cv-609, Gaspee Project & Illinois
Opportunity Project v. Mederos et al., judgment
entered August 28, 2020.
iii
TABLE OF CONTENTS
Page
QUESTION PRESENTED.......................................... i
CORPORATE DISCLOSURE STATEMENT ........... ii
TABLE OF AUTHORITIES....................................... v
DECISIONS BELOW ................................................. 1
STATEMENT OF JURISDICTION........................... 1
PERTINENT CONSTITUTIONAL, STATUTORY,
AND REGULATORY PROVISIONS ......................... 1
INTRODUCTION ....................................................... 2
STATEMENT OF THE CASE ................................... 4
A. Legal framework .............................................. 4
B. Facts ................................................................. 6
C. Proceedings below............................................ 7
REASONS FOR GRANTING THE WRIT ............... 10
I. The decision below conflicts with this
Court’s precedents. ........................................ 10
A. Laws that compel speech are subject
to strict scrutiny. ...................................... 11
B. On-ad disclosure of donors cannot
satisfy even exacting scrutiny. ................ 19
1. The State identified no important
interest. ............................................... 19
2. The State’s law is not narrowly
tailored to its asserted interest. ......... 23
II. The question presented is exceptionally
important. ...................................................... 27
iv
III.This case is an ideal vehicle. ......................... 29
CONCLUSION ......................................................... 31
APPENDIX
Appendix A: United States Court of Appeals
For the First Circuit Opinion
(Sept. 14, 2021) ......................... App. 001
Appendix B: United States District Court
for the District of Rhode Island
Memorandum Opinion and
Order
(August 28, 2020) ...................... App. 034
Appendix C: United States District Court
for the District of Rhode Island
Judgment
(August 28, 2020) ...................... App. 058
Appendix D: Amended Complaint
(March 16, 2020) ....................... App. 059
Appendix E: R.I. Gen. Laws
§ 17-25-3 .................................... App. 073
Appendix F: R.I. Gen. Laws
§ 17-25.3-1 ................................. App. 083
Appendix G: R.I. Gen. Laws
§ 17-25.3-3 ................................. App. 089
Appendix H: R.I. Gen. Laws
§ 17-25.3-4 ................................. App. 095
v
TABLE OF AUTHORITIES
CASES
Abrams v. United States,
250 U.S. 616 (1919)................................................ 21
Americans for Prosperity Found. v. Bonta,
141 S. Ct. 2373 (2021).................................... passim
Arizona Free Enter. Club’s Freedom Club PAC v.
Bennett,
564 U.S. 721 (2011).......................................... 14, 23
Bongo Prods., LLC v. Lawrence, No. 3:21-cv-490,
2021 WL 2897301 (M.D. Tenn. July 9, 2021) ....... 29
Brown v. Ent. Merchants Ass’n,
564 U.S. 786 (2011)................................................ 25
Calzone v. Summers,
942 F.3d 415 (8th Cir. 2019) ................................. 15
Canyon Ferry Rd. Baptist Church of E. Helena, Inc.
v. Unsworth,
556 F.3d 1021 (9th Cir. 2009) ............................... 21
Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah,
508 U.S. 520 (1993)................................................ 22
Citizens United v. Federal Election Commission,
558 U.S. 310 (2010)................................................ 18
Connick v. Myers,
461 U.S. 138 (1983)................................................ 27
Consol. Edison Co. of New York v. Pub. Serv.
Comm’n of New York,
447 U.S. 530 (1980)................................................ 21
vi
Delaware Strong Fams. v. Denn,
136 S. Ct. 2376 (2016)............................................ 30
First Nat’l Bank of Boston v. Bellotti,
435 U.S. 765 (1978)................................................ 20
Hum. Life of Washington Inc. v. Brumsickle,
624 F.3d 990 (9th Cir. 2010) ................................. 30
Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of
Bos.,
515 U.S. 557 (1995).......................................... 11, 17
John Doe No. 1 v. Reed,
561 U.S. 186 (2010).......................................... 20, 23
Majors v. Abell,
361 F.3d 349 (7th Cir. 2004) ................................. 21
McCutcheon v. Fed. Election Comm’n,
572 U.S. 185 (2014).................................... 14, 24, 25
McIntyre v. Ohio Elections Commission,
514 U.S. 334 (1995)........................................ passim
Miami Herald Publishing Co. v. Tornillo,
418 U.S. 241 (1974).......................................... 15, 16
NAACP v. Alabama ex rel. Patterson,
357 U.S. 449 (1958)..................................................8
National Institute of Family & Life Advocates v.
Becerra,
138 S. Ct. 2361 (2018)............................ 2, 10, 12, 18
NetChoice, LLC v. Moody, No. 21-cv-220,
2021 WL 2690876 (N.D. Fla. June 30, 2021) ........ 29
NetChoice, LLC v. Paxton, No. 21-cv-840,
2021 WL 5755120 (W.D. Tex. Dec. 1, 2021) ......... 30
vii
Pac. Gas & Elec. Co. v. Pub. Utilities Comm’n of
California,
475 U.S. 1 (1986).................................................... 15
Reed v. Town of Gilbert, Ariz.,
576 U.S. 155 (2015)........................................ passim
Riley v. Nat’l Fed’n of Blind,
487 U.S. 781 (1988).......................................... 15, 18
Rumsfeld v. F. for Acad. & Institutional Rts., Inc.,
547 U.S. 47 (2006).................................................. 11
Seila Law LLC v. CFPB,
140 S. Ct. 2183 (2020)............................................ 30
Stanley v. Georgia,
394 U.S. 557 (1969)................................................ 16
Turner Broad. Sys., Inc. v. FCC,
512 U.S. 622 (1994)................................................ 11
United States v. L.A. Tucker Truck Lines, Inc.,
344 U.S. 33 (1952).................................................. 19
Vermont Right to Life Comm., Inc. v. Sorrell,
758 F.3d 118 (2d Cir. 2014) ................................... 30
W. Virginia State Bd. of Educ. v. Barnette,
319 U.S. 624 (1943)................................................ 11
Wash. Post v. McManus,
944 F.3d 506 (4th Cir. 2019) ................................. 17
Wooley v. Maynard,
430 U.S. 705 (1977)................................................ 11
Worley v. Fla. Sec’y of State,
717 F.3d 1238 (11th Cir. 2013).............................. 30
STATUTES
28 U.S.C. § 1254 ..........................................................1
viii
28 U.S.C. § 1343 ..........................................................7
42 U.S.C. § 1983 ..........................................................7
Alaska Stat. § 15.13.090 ........................................... 28
Cal. Gov’t Code § 84503 ............................................ 28
Conn. Gen. Stat. § 9-621 ........................................... 28
D.C. Code § 1-1163.15 ............................................... 28
Haw. Rev. Stat.§ 11-393 ............................................ 28
Mass. Gen. Laws ch. 55 § 18G .................................. 28
Me. Rev. Stat. tit. 21-A, § 1014 ................................. 28
R.I. Gen. Laws § 17-25.3-1 ................................ 4, 5, 22
R.I. Gen. Laws § 17-25.3-3 .......................... 5, 6, 12, 22
R.I. Gen. Laws § 17-25.3-4 ..........................................6
R.I. Gen. Laws § 17-25-3 .............................................4
S.D. Codified Laws § 12-27-16.1 ............................... 28
Vt. Stat. tit. 17, § 2972 .............................................. 28
Wash. Rev. Code § 42.17A.350.................................. 28
OTHER AUTHORITIES
Dick Carpenter and Jeffrey Milyo, The Public’s Right
to Know Versus Compelled Speech, 40 Fordham
Urb. L.J. 603 (2012) ............................................... 21
Lilian BeVier, Mandatory Disclosure, “Sham Issue
Advocacy,” and Buckley v. Valeo: A Response to
Professor Hasen, 48 UCLA L. Rev. 285 (2000) ..... 21
DECISIONS BELOW
The District of Rhode Island’s order granting the
motion to dismiss is reported at 482 F. Supp. 3d 11
(D.R.I. 2020), and reprinted in the Appendix (“App.”)
at App. 34-57.
The First Circuit’s opinion affirming is reported at
13 F.4th 79 (1st Cir. 2021), and reprinted at App. 133.
STATEMENT OF JURISDICTION
Petitioners timely file this petition from the First
Circuit’s September 14, 2021, decision. This Court has
jurisdiction under 28 U.S.C. § 1254(1).
PERTINENT CONSTITUTIONAL, STATUTORY,
AND REGULATORY PROVISIONS
The First Amendment to the United States
Constitution provides that “Congress shall make no
law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the
Government for a redress of grievances.”
The relevant statutory provisions are set out at
App. 73-95.
2
INTRODUCTION
This case is about a state’s attempt to compel
speech. Rhode Island law requires most issue
advocacy groups that engage in communications
before an election to register with the State and
disclose most donors giving at least $1,000. Rhode
Island also requires that those communications
disclose the sponsoring group on the advertisement
itself. But the State has taken yet another step,
requiring that these communications display—for at
least four seconds on video ads—the group’s top-five
donors over the preceding year. In radio ads, the top
donors’ names must be read aloud.
This requirement to substitute the government’s
speech for the group’s own violates the First
Amendment. In National Institute of Family & Life
Advocates v. Becerra, 138 S. Ct. 2361 (2018), this
Court held that compelled speech requirements alter
content and are subject to strict scrutiny. Compelled
speech is anathema to the First Amendment because
it forces speakers to adopt views with which they may
disagree. At a minimum, it forces speakers to
substitute the government’s message for their own.
Thus, compelled speech is a content-based speech
restriction under this Court’s precedents. And
because Rhode Island’s on-ad donor disclaimer forces
issue advocacy groups to change the content of their
speech, it contravenes this Court’s precedents,
especially NIFLA.
The First Circuit in the decision below refused to
classify the on-ad donor disclaimer as compelled
speech, reasoning that the requirement only “burdens
speech modestly.” App. 32. Even if forcing an advocacy
group to substitute the government’s message for its
3
own could be classified as a “modest” burden, strict
scrutiny applies to all content-based speech
restrictions. Because this compelled speech
requirement alters the content of private speech, the
Court’s precedents require the application of strict
scrutiny.
Even on its own terms, the decision below deviates
from this Court’s precedents. The First Circuit held
that the on-ad donor disclaimer satisfied exacting
scrutiny because the State has an interest in
informing voters about groups’ donors and because
the disclaimer requirement is “not entirely
redundant” of the other disclosures. App. 22. But this
Court’s precedents require that compelled disclosure
regimes be (at least) narrowly tailored to an important
government interest. Americans for Prosperity Found.
v. Bonta, 141 S. Ct. 2373, 2384 (2021). This Court has
repeatedly cast doubt on the value of an abstract
“informational” interest. And Rhode Island cannot
show an important informational interest here, given
that information about all covered donors is already
available online because of the separate donor
disclosure requirement. Nor could the State show that
the on-ad donor disclaimer is narrowly tailored, given
both the existing disclosure requirement and the
limited
value
of
listing
five
potentially
unrepresentative donors who may not even support
the advertisement at issue. To preserve the integrity
of this Court’s precedents, review is needed.
The question presented is important. More and
more states are adopting similar compelled on-ad
donor disclaimer requirements. Review is necessary
to protect the freedom of speech from states’ efforts to
4
push the bounds of this Court’s limited precedents
upholding narrow express advocacy disclosures.
Finally, this case is an ideal vehicle, for it resolved
a pure question of law about a provision typical of such
regimes. And it would give this Court an opportunity
to begin to address the tensions in lower court
decisions after recent cases like NIFLA and AFPF,
which broadly protect speech and association rights.
To vindicate core First Amendment protections of
speech about public issues, the Court should grant the
petition. In the alternative, this case could be held for
City of Austin, Texas v. Reagan National Advertising
of Texas Inc., No. 20-1029, which raises related
questions about how to determine whether a
government regulation constitutes a content-based
restriction subject to strict scrutiny.
STATEMENT OF THE CASE
A. Legal framework
Rhode Island law defines an electioneering
communication as “any print, broadcast, cable,
satellite, or electronic media communication . . . that
unambiguously identifies a candidate or referendum
and is made either within sixty (60) days before a
general or special election or town meeting for the
office sought by the candidate or referendum; or thirty
(30) days before a primary election, for the office
sought by the candidate; and is targeted to the
relevant electorate.” R.I. Gen. Laws § 17-25-3(16). If
any person or organization spends at least $1,000 on
electioneering communications in a calendar year, it
becomes an independent-expenditure entity subject to
several regulatory requirements. R.I. Gen. Laws § 1725.3-1(b).
5
Three requirements are relevant. First, the entity
must register with the State and report its name and
address. R.I. Gen. Laws § 17-25.3-1(f). Second, the
entity must file reports disclosing the identity of all
donors who gave at least $1,000 to the organization’s
general fund if that fund was used to pay for the ad.
R.I. Gen. Laws § 17-25.3-1(h). Third, the entity must
include on all electioneering communications a
disclaimer identifying its sponsorship and a list of its
top-five donors (of at least $1,000) during the one-year
period preceding the communication. R.I. Gen. Laws
§ 17-25.3-3(a) & (c).
This donor requirement is the focus here. Under
this requirement, the top-five donor information must
be displayed or spoken in all television, mail, radio, or
internet advertising. For printed advertising, the
speech must “bear upon its face the words ‘Top Five
Donors’” and the list. R.I. Gen. Laws § 17-25.3-3(a).
The statute exempts “[a]ny editorial, news story, or
commentary”; “[p]olitical paraphernalia including
pins, buttons, badges, emblems, hats, bumper stickers
or other similar materials”; and, “[s]igns or banners
with a surface area of not more than thirty-two (32)
square feet.” Ibid.
For video advertising, the speech must include “at
the end,” “for a period of not less than four (4)
seconds,” “a written message in the following form:
‘The top five (5) donors to the organization responsible
for this advertisement are’ followed by a list.” R.I.
Gen. Laws § 17-25.3-3(b).
For audio advertising longer than 30 seconds, the
speech must include “[a]n audio message in the
following form: ‘The top five (5) donors to the
organization responsible for this advertisement are’
6
followed by a list.” R.I. Gen. Laws § 17-25.3-3(d)(3)(A).
A similar requirement exists for telephone calls. R.I.
Gen. Laws § 17-25.3-3(e). And for shorter audio ads,
the speech must “provid[e] a website address that lists
such five (5) persons or entities,” and the website must
be “maintain[ed]” “for the entire period during which
such person, business entity or political action
committee makes such advertisement.” R.I. Gen.
Laws § 17-25.3-3(d)(3)(B).
If an entity fails to comply with these laws, it is
subject to civil penalties and potentially criminal
prosecution. R.I. Gen. Laws § 17-25.3-4(a)-(b).
B. Facts
Petitioners
are
nonprofit
social-welfare
organizations that seek to exercise their First
Amendment rights to speak about public issues. The
Gaspee Project is a Rhode Island-based organization
that “engages in issue advocacy communications
around its mission to return government to the
people.” App. 64. [Amended Compl. ¶ 26] The Illinois
Opportunity Project (IOP) is a Chicago-based
organization that “engages in issue advocacy in states
across the country on issues that relate to its mission,
which is to promote the social welfare and common
good by supporting policies founded on the principles
of liberty and free enterprise.” App. 64-65. [Id. ¶ 27]
Both groups planned to spend more than $1,000 on
issue advocacy materials mailed to Rhode Island
voters in the weeks before the 2020 election. Gaspee
intended to mail information to voters about the effect
of referenda proposals on local taxes. App. 65. [Id. ¶
28.] IOP planned to inform voters “about how their
legislators voted on a bill expanding the power of
7
government unions.” App. 65. [Id. ¶ 29.] Both groups
sought to engage only in issue advocacy, not express
ballot advocacy. And both groups “have received
donations over $1,000 in the past and intend to solicit
and accept donations over $1,000 in the future.” App.
65. [Id. at ¶ 31.]
Thus, under Rhode Island law, both groups would
have to register with the state, report their donors,
and both disclose their sponsorship and name their
top-five donors on their messages. Petitioners
believed that “compelled disclosure of their members
and supporters could lead to substantial personal and
economic repercussions” such as “harassment, career
damage, and even death threats for engaging and
expressing their views in the public square.” App. 66.
[Id. ¶ 35.]
C. Proceedings below
Faced with the chilling effect of Rhode Island law
on their speech, petitioners sought pre-enforcement
relief under the First Amendment and 42 U.S.C.
§ 1983. See 28 U.S.C. § 1343. Petitioners argued that:
(1) requiring them to register with and report their
supporters to the State violates their right to
organizational privacy; (2) requiring them to disclaim
their sponsorship of electioneering communications
violates their right to anonymous speech; and (3)
requiring them to list their top-five donors on their
messages violates their right against compelled
speech.
The district court rejected these arguments,
granting respondents’ motion to dismiss. App. 57-58.
And the First Circuit affirmed on the same grounds.
Though the court acknowledged that “[r]egulations
8
that burden political speech must typically withstand
strict scrutiny,” it said that “disclosure and disclaimer
regimes are cut from different cloth.” Id. at 8. Such
regimes, the court claimed, do not impose a “ceiling”
on speech or “prevent anyone from speaking.” Id. at __
(cleaned up). The court found it insignificant that
petitioners wish to engage in issue advocacy and not
express political advocacy, even though it
acknowledged that this Court has relied on that
distinction in the context of spending limits. Id.
According to the court, “[u]nlike limits on
expenditures (which place a brake on political speech),
disclosure regimes do not limit political speech at all.”
Id. at 10-11.
The First Circuit used a similar analysis to reject
petitioners’ anonymous speech, organizational
privacy, and compelled speech claims. According to
the court, McIntyre v. Ohio Elections Commission, 514
U.S. 334 (1995), was limited to “outright ban[s] on
anonymous literature.” App. 27. The court dismissed
the relevance of NAACP v. Alabama ex rel. Patterson,
357 U.S. 449 (1958), and Americans for Prosperity
Foundation v. Bonta, 141 S. Ct. 2373 (2021), because
the fit “between the Act and the state’s informational
interest is reasonable.” App. 30.
Turning to the focus here—the donor disclaimer
requirement—the First Circuit said that the
requirement only “modestly” compels speech and
“does not require any organization to convey a
message antithetic to its own principles.” Id. at 32.
The court emphasized that petitioners could, “for the
most part,” “control the content of any particular
communication.” Id.
9
Thus, the First Circuit refused to use strict
scrutiny and instead applied “exacting scrutiny.” Id.
at 9. It found that the State has an important interest
“in promoting an informed electorate.” Id. at 12. And
it found that all the challenged requirements were
narrowly tailored to that interest. As to the
requirements that groups register and disclose
supporters to the state, the court emphasized the
spending threshold ($1,000) within a given time
before an election. Id. at 18. The court also
emphasized that supporters could give less money to
the group or “opt out of having their monies used for
independent
expenditures
or
electioneering
communications” to avoid disclosure to the State. Id.
On the on-air donor disclaimer requirement, the
court again emphasized the law’s “spending and
temporal thresholds.” Id. at 19. The court did not
contest that the donors required to be listed on the
communication would already have been disclosed to
the State and that information would already be
available to citizens. Yet the court thought that the
on-ad donor disclaimer would not be “entirely
redundant” because it might be “a more efficient tool
for a member of the public who wishes to know the
identity of the donors backing the speaker.” Id. at 22.
The court also thought that the disclaimer “may be
more effective in generating discourse” about “the
extent of donor influence on the message.” Id. at 23.
Finally, the First Circuit held that the dispute was
not moot, because “the Act is still on the books” and
the groups state “without contradiction” “that they
plan to engage in similar advocacy during future
election cycles.” App. 7.
10
REASONS FOR GRANTING THE WRIT
I. The decision below
Court’s precedents.
conflicts
with
this
By upholding Rhode Island’s on-ad donor
disclaimer requirement for issue advocacy, the First
Circuit departed from this Court’s precedents. Under
those precedents, laws that compel speech “alter the
content of [private] speech” and are subject to the
same strict scrutiny that applies broadly to contentbased speech regulations. Nat’l Inst. of Fam. & Life
Advocs. v. Becerra, 138 S. Ct. 2361, 2371 (2018)
(cleaned up). Rhode Island’s on-ad donor disclaimer
requirement only applies to speech with a certain
content: that which refers to candidates or referenda.
Even beyond that grounding in content, the State’s
requirement compels petitioners and other issue
advocacy groups to substitute the government’s
speech for their own, thereby altering the content of
those groups’ speech. By refusing to apply strict
scrutiny to this content-based speech restriction, the
First Circuit contradicted this Court’s precedents.
Even the First Circuit’s application of exacting
scrutiny departed from this Court’s precedents, which
require the government to prove that its speech
restriction is a narrowly tailored way to further an
important government interest. Here, the restriction
on speech is great, given that on-ad donor disclaimer
preempts a part of petitioners’ own speech and runs
counter to their views about privacy. The
government’s asserted informational interest in on-ad
donor disclaimer is weak, not least because the same
(and more) information is already available at the
click of a mouse. And the requirement cannot be
narrowly tailored, given that the top five donors may
11
not be representative and that those donors may have
no connection with—or even disapprove of—a
message to which their name is attached. The First
Circuit speculated that the requirement was “not
entirely redundant” of the other disclosures. App. 22.
But that is a far cry from being narrowly tailored to
an important interest. To maintain the integrity of
this Court’s precedents, review is necessary.
A. Laws that compel speech are subject to
strict scrutiny.
The First Amendment protects “both the right to
speak freely and the right to refrain from speaking at
all.” Wooley v. Maynard, 430 U.S. 705, 714 (1977). The
general rule is that the government may not compel a
person “to utter what is not in his mind.” W. Virginia
State Bd. of Educ. v. Barnette, 319 U.S. 624, 634
(1943). Compelled speech on the government’s behalf
is impermissible if it “affects the message conveyed.”
Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of
Bos., 515 U.S. 557, 572 (1995). Put another way, the
government violates the speaker’s First Amendment
rights by “interfer[ing] with the [speaker’s] ability to
communicate its own message.” Rumsfeld v. F. for
Acad. & Institutional Rts., Inc., 547 U.S. 47, 64 (2006).
“Laws that compel speakers to utter or distribute
speech bearing a particular message are subject to the
same rigorous scrutiny” as other content-based laws.
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642
(1994). “Content-based laws—those that target
speech based on its communicative content—are
presumptively unconstitutional and may be justified
only if the government proves that they are narrowly
tailored to serve compelling state interests.” Reed v.
Town of Gilbert, Ariz., 576 U.S. 155, 163 (2015). In
12
other words, such laws are “subject to strict scrutiny.”
Id. at 165.
This Court recently applied these settled
principles in National Institute of Family & Life
Advocates v. Becerra (“NIFLA”), 138 S. Ct. 2361
(2018). At issue was a California statute compelling
clinics licensed to serve pregnant women to post a
notice about abortion rights. Unlicensed clinics were
required to post a notice that they were not licensed
to provide medical services.
The Court concluded the required notices for
licensed clinics were compelled speech. Those clinics
“must provide a government-drafted script about the
availability of state-sponsored services, as well as
contact information for how to obtain them.” Id. at
2371 (cleaned up). “By compelling individuals to
speak a particular message,” this requirement
“alter[s] the content of [the] speech.” Ibid. (cleaned
up). And though the Court focused on the unlicensed
clinic requirement’s lack of tailoring, the Court
characterized this requirement as “a governmentscripted, speaker-based disclosure requirement.” Id.
at 2377.
NIFLA dooms Rhode Island’s donor disclaimer
requirement. Like California’s licensed clinic notice,
Rhode Island’s requirement that petitioners list their
top donors on their speech is a “government-drafted
script” whose exact wording is set by statute.
Petitioners’ printed speech must “bear upon its face
the words ‘Top Five Donors’” and the list; their video
and audio speech are similarly scripted by the
government. Supra, at 5-6; see R.I. Gen. Laws § 1725.3-3. Petitioners are compelled to alter their speech
to incorporate the government’s message just like the
13
pregnancy centers were forced to alter their speech to
incorporate the government’s notice. By requiring
crisis pregnancy centers to post a notice about
California’s state-sponsored abortion services,
California’s licensed clinic notice effectively altered
the message of crisis pregnancy centers seeking to
counsel pregnant women against having an abortion.
Similarly, the donor disclaimer requirement forces
petitioners to alter their advertisements that seek to
inform or convince people on a particularly political
issue, to also provide information petitioners believe
undermines their philosophical commitments. In both
cases, the government has altered the intended
message by forcibly injecting its own message. Thus,
Rhode Island’s donor disclaimer requirement compels
speech and is a content-based restriction.
Resisting this conclusion, the First Circuit
purported to distinguish NIFLA in several ways.
First, it said that compelled donor disclaimers on
speech are “simply not comparable” to the notices in
NIFLA because “[d]isclaimers—in the unique
election-related context—serve the salutary purpose
of helping the public to understand where ‘money
comes from.’” App. 31. But that mistakes application
of some level of scrutiny for the antecedent question
of whether the law is a content-based speech
restriction. Here, Rhode Island has forced petitioners
to change their ads from their intended message to
include a message they would not otherwise include.
By forcing petitioners to change the content of their
ads, Rhode Island has forced petitioners to change the
content of their speech. “If the First Amendment
protects flag burning, funeral protests, and Nazi
parades—despite the profound offense such spectacles
14
cause—it surely protects” petitioners’ speech about
important matters of public policy before elections.
McCutcheon v. Fed. Election Comm’n, 572 U.S. 185,
191 (2014). Indeed, because discussions of such issues
“are integral to the operation of our system of
government,” the First Amendment should have “its
fullest and most urgent application” here. Arizona
Free Enter. Club’s Freedom Club PAC v. Bennett, 564
U.S. 721, 734 (2011) (cleaned up).
Next, the First Circuit claimed that the law
“burdens speech modestly” because “[t]he speaker can
for the most part control the content of any particular
communication.” App. 32. That claim misunderstands
this Court’s holdings on compelled speech. Never has
this Court approved only a “modest” or proportionate
compelling of speech. “Government regulation of
speech is content based if a law applies to particular
speech because of the topic discussed or the idea or
message expressed.” Reed, 576 U.S. at 163. Rhode
Island’s law is content-based not just because it
compels the speaker to communicate particular
content, but also because the regulation is triggered
based on the content of the speech. The law applies
only if a message mentions a candidate for public
office close in time to an election. R.I. Gen. Laws § 1725.3-1(e). Such “facial distinctions” that “defin[e]
regulated speech by particular subject matter”
constitute “obvious” content-based restrictions. Reed,
576 U.S. at 163.1
The Court’s resolution of the question presented in City of
Austin, Texas v. Reagan National Advertising of Texas Inc., No.
20-1029, about how to identify content-based speech restrictions
could bear on this issue.
1
15
To read this Court’s precedents as excusing from
strict scrutiny “any regulation involving any sort of
disclosure and burdening any category of speech” is
implausible. Calzone v. Summers, 942 F.3d 415, 427
(8th Cir. 2019) (Grasz, J., concurring). Just because
some precedents apply exacting scrutiny to campaignfinance disclosure is not a warrant to give every law
labeled a campaign finance regulation an automatic
pass on strict scrutiny. A law imposing campaign
finance disclosure based on race would still receive
strict scrutiny; so too should a law compelling and
altering the content of a speaker’s speech.
Regardless, the on-ad donor disclaimer here is
content-based and thus subject to strict scrutiny for
an independent reason: because compelled speech is
content-altering. “Mandating speech that a speaker
would not otherwise make necessarily alters the
content of the speech.” Riley v. Nat’l Fed’n of Blind,
487 U.S. 781, 795 (1988). “Since all speech inherently
involves choices of what to say and what to leave
unsaid,” Pac. Gas & Elec. Co. v. Pub. Utilities Comm’n
of California, 475 U.S. 1, 11 (1986) (plurality opinion),
the compelled speech requirement here harms
petitioners in multiple ways. It both deprives
petitioners of the chance to speak a message they
want to and forces them to speak a message they do
not want to.
First, petitioners cannot use those portions of their
advertisements that the government commandeers.
Such a feature has been recognized in other contentbased compelled speech cases as a “penalty” on
speech. For instance, in Miami Herald Publishing Co.
v. Tornillo, the Court noting that one aspect “of the
penalty resulting from the compelled printing” is “the
16
cost in printing and composing time and materials
and in taking up space that could be devoted to other
material the newspaper may have preferred to print.”
418 U.S. 241, 256 (1974). So too here, where the space
or ad time consumed by the government’s speech
displaces petitioners’ own.
The requirement here also forces organizations
like petitioners to speak the government’s own
message. In the First Circuit’s view, the law “does not
require any organization to convey a message
antithetic to its own principles.” App. 32. That is
incorrect. Petitioners believe strongly in the right to
privacy for citizens and would not include this
information if not forced to by the law. App. 61-61, 67
(Amended Compl. ¶¶ 6, 40). For an organization
committed to limited government and personal
freedom, saying the names of one’s donors is similar
to forcing pro-life groups to share information about
abortion access. Forcing petitioners to appear
hypocritical is hardly a “modest[]” burden. App. 32.
“[W]hen dissemination of a view contrary to one’s own
is forced upon a speaker intimately connected with the
communication advanced, the speaker’s right to
autonomy over the message is compromised.” Hurley,
515 U.S. at 576. Donors may be less likely to support
groups that appear to violate their own principles.
And listeners’ rights are harmed too, for petitioners’
message is distorted by government interference. Cf.
Stanley v. Georgia, 394 U.S. 557, 564 (1969) (“[T]he
Constitution protects the right to receive information
and ideas.”).
The requirement also forces petitioners to modify
their message from informing or trying to convince
listeners about a political issue to talking about
17
petitioners’ donors. The addition of petitioners’ donors
into the content of the ad is extraneous information
that distorts the petitioners’ message, consuming
valuable time and confusing the listener with
information unconnected to the message the speaker
wants to convey. See Wash. Post v. McManus, 944 F.3d
506, 515 (4th Cir. 2019) (Wilkinson, J.) (“Much as our
forebears elected to hash out the architecture of this
nation under the pseudonyms of ‘Publius’ and
‘Agrippa,’ many political advocates today also opt for
anonymity in hopes their arguments will be debated
on their merits rather than their makers.”).
Nor would it matter if the First Circuit’s view
about the nature of the speech mandated here were
correct. The “general rule that the speaker has the
right to tailor the speech[] applies not only to
expressions of value, opinion, or endorsement, but
equally to statements of fact.” Hurley, 515 U.S. at 573.
The problem is the government-mandated change in
the content of petitioners’ speech, not whether the
new content is neutral, factual, or otherwise nonideological. As this Court well-explained in Riley:
[W]e would not immunize a law requiring a
speaker favoring a particular government
project to state at the outset of every address
the average cost overruns in similar projects, or
a law requiring a speaker favoring an
incumbent candidate to state during every
solicitation that candidate’s recent travel
budget. Although the foregoing factual
information might be relevant to the listener,
and, in the latter case, could encourage or
discourage the listener from making a political
donation, a law compelling its disclosure would
18
clearly and substantially burden the protected
speech.
487 U.S. at 798. Stating an organization’s donors is no
less burdensome than stating a candidate’s travel
budget. Thus, the on-ad donor disclaimer requirement
alters the content of petitioners’ speech.
This alteration of speech represents an essential
difference between a regulation of “the mechanics of
the electoral process” and a regulation of “pure
speech.” McIntyre, 514 U.S. at 345. Regulations
pertaining to filings with a state agency might
concern the mechanics of the electoral process. But a
regulation requiring a speaker to read a statemandated script affects pure speech and is contentbased.
“[C]ontent-based regulations of speech are subject
to strict scrutiny,” NIFLA, 138 S. Ct. at 2371, which
means “presumptively unconstitutional.” Reed, 576
U.S. at 163. As shown, the on-ad donor disclaimer
requirement is content-based, yet the First Circuit
refused to apply strict scrutiny. That refusal
contradicts this Court’s precedents and requires
review.2
2 This Court’s pre-NIFLA decision in Citizens United v. Federal
Election Commission, 558 U.S. 310 (2010), is not to the contrary.
There, the Court considered an on-ad statement that “___ is
responsible for the content of this advertising” and that the ad
“is not authorized by any candidate or candidate’s committee.”
Id. at 366. The Court characterized this as a disclosure
requirement subject to exacting scrutiny. Id. at 366–67. The
Court did not consider or decide a compelled speech challenge to
the on-ad disclosure, so its holding cannot be read as deciding the
issue presented here. E.g., United States v. L.A. Tucker Truck
19
B. On-ad disclaimer of donors cannot satisfy
even exacting scrutiny.
Apart from the First Circuit’s refusal to apply
strict scrutiny to this content-based speech
restriction, its application of exacting scrutiny also
contradicted this Court’s precedents. To satisfy
exacting scrutiny, the government must show “a
substantial relation between the disclosure
requirement
and
a
sufficiently
important
governmental interest.” Americans for Prosperity
Found. v. Bonta, 141 S. Ct. 2373, 2383 (2021) (cleaned
up). “[T]he strength of the governmental interest must
reflect the seriousness of the actual burden on First
Amendment rights.” Ibid. (cleaned up). And exacting
scrutiny requires that the law “be narrowly tailored to
the government’s asserted interest.” Ibid. Here, no
important government interest is at stake, and the onad donor disclaimer provision would not be a narrowly
tailored way to further any such interest.
1. The State identified no important
interest.
First, any state interest in on-ad disclaimer of
donors is not important, especially relative to the
burden on speech discussed above. The identity of five
persons who gave money to a fund generally used to
fund an advertisement is not significant information.
No doubt some would also like to know the top 10 or
15 or 100 donors, or the donors’ home addresses, or
Lines, Inc., 344 U.S. 33, 38 (1952) (emphasizing that where an
argument was not “discussed in the opinion of the Court,” “the
case is not a binding precedent on th[at] point”). Moreover,
disclaiming the names of donors is a much greater burden on an
organization that disclaiming the organization’s own
sponsorship.
20
their employers. Others would like to know which
employees or vendors may have been involved with
making an advertisement or otherwise assisting the
entity. All that too theoretically provides a bit more
information. But it is not important information so
necessary that the government may compel speech
and alter content. That is especially true given that
disclaimers like this go hand in hand with a “vast”
“potential . . . for harassment.” John Doe No. 1 v.
Reed, 561 U.S. 186, 209 (2010) (Alito, J., concurring).
This Court’s precedents recognize the limited
scope of informational interests in this context. In
McIntyre, for instance, the Court said that “[t]he
simple interest in providing voters with additional
relevant information does not justify a state
requirement that a writer make statements or
disclosures she would otherwise omit,” so the
government’s “informational interest is plainly
insufficient.” 514 U.S. at 348–49. Thus, this Court has
recognized that informational interests do not carry
the same weight as, for example, “preventing fraud.”
Id. at 49; accord Doe, 561 U.S. at 197 (refusing to rely
on an “informational” interest); id. at 206–08 (Alito,
J., concurring) (explaining why such an interest is
weak); id. at 238–29 (Thomas, J., dissenting) (same).
This makes good sense. “The inherent worth of the
speech in terms of its capacity for informing the public
does not depend upon the identity of its source” or its
supporters. First Nat’l Bank of Boston v. Bellotti, 435
U.S. 765, 777 (1978); contra App. 23. Instead, “the best
test of truth is the power of the thought to get itself
accepted in the competition of the market.” Consol.
Edison Co. of New York v. Pub. Serv. Comm’n of New
York, 447 U.S. 530, 534 (1980) (quoting Abrams v.
21
United States, 250 U.S. 616, 630 (1919) (Holmes, J.,
dissenting)). As Madison, Hamilton, and Jay
understood when they published the Federalist
Papers, anonymity “provides a way for a writer who
may be personally unpopular to ensure that readers
will not prejudge [the] message simply because they
do not like its proponent.” McIntyre, 514 U.S. at 342;
see Majors v. Abell, 361 F.3d 349, 357 (7th Cir. 2004)
(Easterbrook, J., dubitante). Rather than let the
government regulate anonymous speech out of
existence, this Court has trusted “the common man”
“to evaluate” a writing’s “anonymity along with its
message” to ultimately decide “what is truth.”
McIntyre, 514 U.S. at 349 n.11 (cleaned up).
The government’s interest is even less in forcing
on-ad disclaimer of those who merely support an
organization that engages in some speech. As Judge
Noonan asked, “Does any voter exclaim, ‘Hank Jones
gave $76 to this cause. I must be against it!’” Canyon
Ferry Rd. Baptist Church of E. Helena, Inc. v.
Unsworth, 556 F.3d 1021, 1036 (9th Cir. 2009)
(concurring opinion). Judge Noonan’s observation is
backed up by research showing that donor
information provides substantially less useful
information to voters than party affiliation and major
endorsements. See Dick Carpenter and Jeffrey Milyo,
The Public’s Right to Know Versus Compelled Speech,
40 Fordham Urb. L.J. 603, 618–23 (2012); see also
Lilian BeVier, Mandatory Disclosure, “Sham Issue
Advocacy,” and Buckley v. Valeo: A Response to
Professor Hasen, 48 UCLA L. Rev. 285, 303 (2000).
Any informational interest in on-ad donor
disclaimer all but disappears in the face of the other
statutory provisions here—specifically, the on-ad
22
sponsorship disclaimer and the donor disclosure. See
R.I. Gen. Laws §§ 17-25.3-1, 17-25.3-3. Because of
those requirements, an advertisement listener or
viewer will both know the ad’s sponsor and be able to
immediately discover all of the sponsor’s donors who
gave $1,000 or more—not just the top five such
donors. See State of Rhode Island, Campaign Finance
Electronic
Reporting
&
Tracking
System,
http://www.ricampaignfinance.com/RIPublic/Homepa
ge.aspx (official State website collecting this
information in a searchable format).3
The on-ad sponsor disclaimer alone easily satisfies
any informational interest that might exist, and the
separate donor disclosure requirement means that the
viewer already has more information than the on-ad
donor disclaimer would provide. Indeed, as discussed
below, conveying the top-five donors on the ad may
decrease viewers’ information by giving them a
distorted view of the organization’s overall donors.
Finally, the First Circuit believed that the on-ad
donor disclaimer “may” “generat[e] discourse” about
“the extent of donor influence on the message” and
whether “the top five donors are representative of the
speaker’s donor base.” App. 23. But there is no
important government interest in suppressing some
speech to “generat[e]” other speech. “This sort of
‘beggar thy neighbor’ approach to free speech—
Further, the law expressly exempts from the on-ad donor
disclaimer many communications, from “commentary” to
“paraphernalia” to yard signs. R.I. Gen. Laws § 17-25.3-3(a). “[A]
law cannot be regarded as protecting an interest of the highest
order when it leaves appreciable damage to that supposedly vital
interest unprohibited.” Church of the Lukumi Babalu Aye, Inc. v.
City of Hialeah, 508 U.S. 520, 547 (1993) (cleaned up).
3
23
restricting the speech of some elements of our society
in order to enhance the relative voice of others—is
wholly foreign to the First Amendment.” Arizona Free
Enter., 564 U.S. at 741. And it is unclear why the First
Circuit found it preferable to shift the conversation
from the merits of ideas to the funders behind
messages. It is also unclear how disclosing only the
top five donors would enable “discourse” about
whether those donors “are representative.” App. 23.
The First Circuit’s logic has no stopping point. To
give a bit more information about who donors are and
whether they are “representative,” could the
government also require on-ad disclosure of “all kinds
of demographic information, including [their] race,
religion, political affiliation, sexual orientation, ethnic
background, and interest-group memberships”? Doe,
561 U.S. at 207 (Alito, J., concurring). Under the
sweeping “informational interest” set forth in the
decision below, it is hard to see why not. “Requiring
such disclosures, however, runs headfirst into a half
century of [this Court’s] case law.” Id.
No important informational interest exists in onad donor disclaimer, and certainly not one that could
overcome its content-based restriction on speech and
potential to be used for harassment.
2. The State’s law is not narrowly tailored
to its asserted interest.
Even if the government could show some
important informational interest here, the on-ad
donor disclaimer requirement is not narrowly tailored
to that interest. “Narrow tailoring is crucial where
First Amendment activity is chilled—even if
indirectly—because First Amendment freedoms need
24
breathing space to survive.” AFPF, 141 S. Ct. at 2384
(cleaned). A “reasonable assessment of the burdens
imposed by disclosure should begin with an
understanding of the extent to which the burdens are
unnecessary.” Id. at 2385.
As discussed, all the information conveyed by the
on-ad donor disclaimer is already available to the
public under the law’s other provisions, “at the click of
a mouse” (or less). McCutcheon, 572 U.S. at 224. So
the on-ad disclaimer cannot be narrowly tailored to
further an interest that is already satisfied.
The First Circuit ventured that the on-ad donor
disclaimer is “not entirely redundant” because it
might be a “more efficient tool for a member of the
public who wishes to know the identity of the donors
backing the speaker.” App. 22. But “not entirely
redundant” is a far cry from “narrowly tailored.” And
the First Circuit’s view seems to rest on the
assumption that the public is “too dull” to perform a
quick Internet search when viewing advertisements.
App. 23; see App. 22 (the public may “too easily
overlook[]” this information). No evidence supports
that assumption. As this Court has admonished,
“Don’t underestimate the common man.” McIntyre,
514 U.S. at 349 n.11 (cleaned up). A viewer’s decision
not to do an easy search would only underscore that
the informational value in the identity of five
supporters who gave money potentially used to make
an ad is nil.
Even on the First Circuit’s assumption that on-ad
donor disclaimers could lead to a slight efficiency gain
in conveying a scrap of information, the requirement
is not narrowly tailored to an important interest. At
best, the only interest here could be a minor efficiency
25
one. And the “government does not have a compelling
interest in each marginal percentage point by which
its goals are advanced.” Brown v. Ent. Merchants
Ass’n, 564 U.S. 786, 803 n.8 (2011). Journalists,
opponents, and citizens can already access the same
information at the board’s website. Rhode Island’s
asserted “‘prophylaxis-upon-prophylaxis approach’
requires that [the Court] be particularly diligent in
scrutinizing the law’s fit.” McCutcheon, 572 U.S. at
221.
Yet the law is over- and under-inclusive in several
ways, again underscoring its lack of fit with any
informational interest. E.g., Reed, 576 U.S. at 172 (“In
light of this underinclusiveness, the Town has not met
its burden to prove that its [regulation] is narrowly
tailored”). In the First Circuit’s view, “the on-ad donor
disclaimer provides an instantaneous heuristic by
which to evaluate generic or uninformative speaker
names.” App. 22. Putting aside that the same
information can be obtained—if anyone cared—
instantaneously on every smartphone, this “heuristic”
is unlikely to be informative. In some respects, the law
is vastly underinclusive. Zeroing in on the top five
contributors (of potentially thousands) to the general
fund could provide irrelevant information, especially
for a national organization like Illinois Opportunity
Project. Such a group’s top five donors may be from
different states, but its sixth largest donor may be
from Rhode Island yet will not be listed on the ad. And
the top five donors may be unrepresentative of the
group’s other donors.
The First Circuit dismissed this “line-drawing
exercise” as “a task best left to the legislature.” App.
23. But that is not how exacting scrutiny works. The
26
government must prove that its regulation is
narrowly tailored to an important interest, and the
courts must rigorously assess the government’s proof.
See AFPF, 141 S. Ct. at 2384–85.
The requirement is also over-inclusive. Many
donors may give money for reasons unrelated to the
particular ad. If donors were motivated to support
issue advocacy in another state, or because of
petitioners’ work on another issue, or to support
general office operations rather than issue-oriented
advertisements, they would be disclosed, yet their
disclosure would not provide Rhode Islanders with
particularly interesting or relevant information. Some
disclosed donors might even see their names listed on
a message with which they do not agree—potentially
misleading voters. The First Circuit dismissed this
concern as “not necessarily aris[ing] in all cases.” App.
24. Once again, whatever scrutiny was being applied
below was not exacting.
The First Circuit accused petitioners of
considering citizens “too dull to ask” questions about
donor influence. App. 23. Yet only the State and the
First Circuit think citizens incapable of performing an
easy Internet search to obtain this same information.
According to the decision below, citizens, “flooded with
a profusion of information,” are now “reliant” on
secondary “cues” about a message but may “too easily
overlook[]” “such cues.” App. 22. Neither the First
Amendment nor this Court takes such a dim view of
the
People.
The First
Circuit
erred
by
“underestimat[ing]” citizens’ ability “to evaluate” a
writing and decide—based on the message and all
information provided (or not) about its source—“what
27
is ‘responsible’, what is valuable, and what is truth.”
McIntyre, 514 U.S. at 349 n.11.
Nothing prohibits citizens from rewarding
organizations that voluntarily list five donors on
advertisements by favoring their messages. If that
information were important to citizens, the
marketplace of ideas would lead to disclosure. And
Rhode Island’s law already uses more narrowly
tailored means to provide that same information.
Sanctioning this more speech-restrictive requirement
makes a mockery of this Court’s recent admonition
that “[t]he government may regulate in the First
Amendment area” through “compelled disclosure
regimes” “only with narrow specificity.” AFPF, 141 S.
Ct. at 2384 (cleaned up). Review is necessary.
II.
The question presented is exceptionally
important.
Review is also necessary because the question
presented is exceptionally important. “[T]he First
Amendment’s primary aim is the full protection of
speech upon issues of public concern.” Connick v.
Myers, 461 U.S. 138, 154 (1983). Yet that is what
Rhode Island’s law here regulates: core protected
speech about policy issues before elections. The law
requires substitution of the government’s message for
the speaker’s own, and in so doing exposes individual
supporters to the real possibility of personal
harassment and retribution. In this way, it imposes a
triple burden on free speech by forcing speakers to
mouth the government’s message, preventing them
from saying their own message, and discouraging
others from supporting the speaker.
28
Worse, other jurisdictions are increasingly
adopting similar laws. See, e.g., Alaska Stat.
§ 15.13.090(a)(2)(C) (requiring disclosure “of the name
and city and state of residence or principal place of
business, as applicable, of each of the person’s three
largest contributors”); Cal. Gov’t Code § 84503(a)
(requiring “the names of the top contributors to the
committee paying for the advertisement”); Conn. Gen.
Stat. § 9-621(j)(1) (requiring “the names of the five
persons who made the top five largest aggregate
covered transfers”); D.C. Code § 1-1163.15(a)(2) (top
five); Haw. Rev. Stat.§ 11-393 (top three); Me. Rev.
Stat. tit. 21-A, § 1014(2-B) (top three); Mass. Gen.
Laws ch. 55 § 18G (top five); S.D. Codified Laws § 1227-16.1 (top five); Vt. Stat. tit. 17, § 2972(c) (“any
contributor who contributed more than 25 percent of
all contributions and more than $2,000.00”); Wash.
Rev. Code § 42.17A.350 (top five).
All these laws restrict speech, for “compelled
disclosure of affiliation with groups engaged in
advocacy may constitute as effective a restraint on”
freedom of speech “as other forms of governmental
action.” AFPF, 141 S. Ct. at 2382 (cleaned up). This
Court’s review is necessary to protect the freedom of
speech from states’ efforts to push the bounds of this
Court’s limited precedents upholding narrow express
advocacy disclosures. The relevant precedents that
apply here are those that prohibit compelled speech
and content-based speech restrictions, especially
pertaining to core protected speech like petitioners’
advocacy. To prevent a widespread chill of First
Amendment speech, this Court’s review is needed.
29
III.
This case is an ideal vehicle.
This case presents an ideal vehicle to resolve the
pure legal question about on-ad donor disclaimer
requirements. The courts below expressly considered
and resolved this question of law. App. 32-33, 56-57.
The relevant facts are not in dispute, as the district
court resolved the case on a motion to dismiss. App.
35, 54. As shown above, the legal provision here is
typical. States are increasingly adopting on-ad donor
disclaimer laws like this one. So this case would
resolve the important legal question at issue,
providing clarity for states and speakers going
forward.
Further, resolution of the legal question here will
be outcome-determinative. The State did not argue
below that its on-ad donor disclaimer would satisfy
strict scrutiny as the least restrictive means of
furthering any compelling interest. But even if the
State wanted to make that argument, it could be
resolved on remand.
Finally, this case is a good vehicle for the Court to
begin to address tensions in the lower courts’
application of First Amendment principles. For
instance, recent decisions considering regulations of
social media platforms did not hesitate to apply strict
scrutiny and strike the regulations down as contentbased where, for instance, the regulations “impose[d]
restrictions applicable only to material posted ‘by or
about a candidate.’” NetChoice, LLC v. Moody, No. 21cv-220, 2021 WL 2690876, at *10 (N.D. Fla. June 30,
2021) (appeal filed); see also Bongo Prods., LLC v.
Lawrence, No. 3:21-cv-490, 2021 WL 2897301, at *9
(M.D. Tenn. July 9, 2021) (applying strict scrutiny for
compelled speech to a statute requiring businesses to
30
post a public notice if they permit members of either
sex to use a public restroom). And courts have not
hesitated to invalidate disclosure provisions for social
media platforms, on the ground that it impermissibly
“burden[s] First Amendment expression” to “forc[e]
elements of civil society to speak when they otherwise
would have refrained.” NetChoice, LLC v. Paxton, No.
21-cv-840, 2021 WL 5755120, at *11 (W.D. Tex. Dec.
1, 2021) (cleaned up).
Yet the lower courts refuse to apply these same
rules to laws directly regulating core political speech,
instead applying scrutiny that is “exacting” in name
only and nearly always results in upholding those
laws. E.g., Vermont Right to Life Comm., Inc. v.
Sorrell, 758 F.3d 118, 134 (2d Cir. 2014); Worley v.
Fla. Sec’y of State, 717 F.3d 1238, 1244 (11th Cir.
2013) (collecting cases); Hum. Life of Washington Inc.
v. Brumsickle, 624 F.3d 990, 1013 (9th Cir. 2010); see
generally Delaware Strong Fams. v. Denn, 136 S. Ct.
2376 (2016) (Thomas, J., dissenting from the denial of
certiorari). This Court’s intervention is necessary to
ensure that neutral principles of law govern free
speech jurisprudence.
Of course, this case does not require the Court to
resolve all these tensions within free speech
jurisprudence. The Court could take a small step in
the right direction by correctly applying its recent
precedents “to the new situation” presented by on-ad
donor disclaimer laws in the issue advocacy context.
Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2201 (2020)
(cleaned up). This case provides an excellent vehicle
for the Court’s review of this important question.
31
CONCLUSION
For the foregoing reasons, the Court should grant
the petition for a writ of certiorari. In the alternative,
the Court should hold this case for City of Austin,
Texas v. Reagan National Advertising of Texas Inc.,
No. 20-1029.
Respectfully submitted,
CHRISTOPHER E. MILLS
Spero Law LLC
557 E. Bay St.
#22251
Charleston, SC 29413
(843) 606-0640
cmills@spero.law
JOSEPH S. LARISA, JR.
Larisa Law
Providence, RI 02903
joe@larisalaw.com
DANIEL R. SUHR
Counsel of Record
JEFFREY M. SCHWAB
Liberty Justice Center
141 W. Jackson St.
#1065
Chicago, IL 60604
(312) 637-2280
dsuhr@libertyjustice
center.org
DECEMBER 10, 2021
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.