Petition for Writ of Certiorari — Rio Grande Foundation, Petitioner v. City of Santa Fe, New Mexico, et al.
Supreme Court briefDec 22, 2021
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In The
Supreme Court of the United States
---------------------------------♦--------------------------------RIO GRANDE FOUNDATION,
Petitioner,
v.
CITY OF SANTA FE, NEW MEXICO; CITY OF
SANTA FE ETHICS AND CAMPAIGN REVIEW BOARD,
Respondents.
---------------------------------♦--------------------------------On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Tenth Circuit
---------------------------------♦--------------------------------PETITION FOR WRIT OF CERTIORARI
---------------------------------♦--------------------------------TIMOTHY SANDEFUR*
JONATHAN RICHES
SCHARF-NORTON CENTER FOR
CONSTITUTIONAL LITIGATION
AT THE GOLDWATER INSTITUTE
500 E. Coronado Rd.
Phoenix, AZ 85004
(602) 462-5000
litigation@goldwaterinstitute.org
*Counsel of Record
Counsel for Petitioner
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
QUESTION PRESENTED
This Court has held that a plaintiff may challenge
the constitutionality of a burden on speech by alleging that it objectively deters people from exercising
their speech rights—i.e., a “chilling effect.” Rio Grande
Foundation (RGF) challenged the constitutionality of a
Santa Fe ordinance that forces nonprofits to reveal
their donors’ private information whenever the nonprofit spends more than $250 supporting or opposing a
ballot initiative. RGF alleged that this mandate would
chill speech by a person of ordinary firmness. The
Tenth Circuit, however, held that “an element of a
chilled speech injury is an actual intention not to
speak,” and because RGF expects to support or oppose
ballot initiatives in the future, it lacks standing to
bring its chill claim, regardless of whether the ordinance would chill speech by a person of ordinary firmness. Did the Tenth Circuit err?
ii
PARTIES TO THE PROCEEDINGS
Petitioner Rio Grande Foundation, which was the
Plaintiff and Appellant below, is a New Mexico nonprofit corporation.
Respondents, who were Defendants and Appellees
below, are the City of Santa Fe, New Mexico, and the
City of Santa Fe Ethics and Campaign Review Board,
a department of the City of Santa Fe.
CORPORATE DISCLOSURE STATEMENT
Petitioner Rio Grande Foundation has no parent
corporations, and no publicly held company owns 10
percent more of its stock.
RELATED CASES
Rio Grande Foundation v. City of Santa Fe, et al., No.
1:17-cv-00768-JCH-CG, U.S. District Court, District of
New Mexico. Judgment entered January 29, 2020.
Rio Grande Foundation v. City of Santa Fe, et al., No.
20-2022, U.S. Court of Appeals for the Tenth Circuit.
Judgment entered August 3, 2021. Petition for Rehearing denied September 27, 2021.
iii
TABLE OF CONTENTS
Page
QUESTION PRESENTED...................................
i
PARTIES TO THE PROCEEDINGS ...................
ii
CORPORATE DISCLOSURE STATEMENT ......
ii
RELATED CASES ...............................................
ii
TABLE OF CONTENTS ......................................
iii
TABLE OF AUTHORITIES .................................
vi
OPINIONS BELOW.............................................
1
JURISDICTION ...................................................
1
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED...........................................
1
INTRODUCTION AND STATEMENT OF THE
CASE ................................................................
1
A.
The Santa Fe soda tax campaign ..............
2
B.
The City’s disclosure requirement ............
3
C.
The 2017 enforcement proceedings ...........
4
D.
The hearing before the City’s ethics board ....
6
E.
This lawsuit ...............................................
7
F.
The appeal .................................................
8
REASONS FOR GRANTING THE PETITION ... 10
I.
The Tenth Circuit’s newly crafted elements of chill claims, in conflict with at
least eight other Circuits, holds that
plaintiff must actually desist from speaking before bringing suit ............................. 11
iv
TABLE OF CONTENTS—Continued
Page
A. The court below established a new test
for “chill” case that, in conflict with
other Circuits and this Court’s precedent, requires a subjective inquiry
into whether the plaintiff is actually
refraining from speaking ..................... 11
B. Walker did not say plaintiffs must refuse to speak in order to sue—it only
said plaintiffs who do choose not to
speak can still sue ............................... 16
II.
The Court of Appeals’ new element for
chill claims will bar plaintiffs from bringing legitimate challenges to donor disclosure mandates ........................................... 18
III. The Court of Appeals’ new test for chill
conflicts with this Court’s principles regarding standing ....................................... 21
CONCLUSION..................................................... 27
APPENDIX
Opinion, United States Court of Appeals for the
Tenth Circuit (filed Aug. 3, 2021) .................... App. 1
Judgment, United States Court of Appeals for
the Tenth Circuit (filed Aug. 3, 2021) ............ App. 12
Memorandum Opinion and Order, United States
District Court for the District of New Mexico
(filed Jan. 29, 2020) ........................................ App. 14
v
TABLE OF CONTENTS—Continued
Page
Final Judgment, United States District Court
for the District of New Mexico (filed Jan. 29,
2020) ............................................................... App. 67
Order Denying Rehearing, United States Court
of Appeals for the Tenth Circuit (filed Sep. 27,
2021) ............................................................... App. 68
Constitutional and Statutory Provisions Involved .............................................................. App. 70
Complaint, United States District Court for the
District of New Mexico................................... App. 74
vi
TABLE OF AUTHORITIES
Page
CASES
ACORN v. City of Tulsa, 835 F.2d 735 (10th Cir.
1987) ............................................................ 22, 23, 25
Agosto–de–Feliciano v. Aponte–Roque, 889 F.2d
1209 (1st Cir. 1989) .................................................14
Americans for Prosperity Foundation v. Bonta,
141 S. Ct. 2373 (2021) ....................................... 19, 20
Bart v. Telford, 677 F.2d 622 (7th Cir. 1982) ........ 12, 14
Bennett v. Hendrix, 423 F.3d 1247 (11th Cir.
2005) ...................................................... 12, 13, 14, 26
Bigelow v. Virginia, 421 U.S. 809 (1975) ................ 9, 24
Brady Campaign to Prevent Gun Violence v.
Brownback, 110 F. Supp.3d 1086 (D. Kan.
2015) ........................................................................23
Buckley v. Valeo, 424 U.S. 1 (1976) ........................... 8, 9
Cmty.-Serv. Broad. of Mid-Am., Inc. v. FCC, 593
F.2d 1102 (D.C. Cir. 1978) .......................................11
Coalition for Secular Government v. Williams,
815 F.3d 1267 (10th Cir. 2016) ..................................9
Colorado Outfitters Ass’n v. Hickenlooper, 823
F.3d 537 (10th Cir. 2016) .........................................23
Crawford-El v. Britton, 93 F.3d 813 (D.C. Cir.
1996) ........................................................................12
Curley v. Vill. of Suffern, 268 F.3d 65 (2d Cir.
2001) ........................................................................14
Dombrowski v. Pfister, 380 U.S. 479 (1965).......... 22, 26
vii
TABLE OF AUTHORITIES—Continued
Page
Dorsett v. Cnty. of Nassau, 732 F.3d 157 (2d Cir.
2013) ........................................................................15
Eaton v. Meneley, 379 F.3d 949 (10th Cir. 2004) ..... 10, 13
Holder v. Humanitarian Law Project, 561 U.S. 1
(2010) .......................................................................22
Initiative & Referendum Institute v. Walker, 450
F.3d 1082 (10th Cir. 2006) ........................... 16, 17, 19
Laird v. Tatum, 408 U.S. 1 (1972) ..................... 9, 11, 16
Lujan v. Defenders of Wildlife, 504 U.S. 555
(1992) .......................................................................22
Mangino v. Inc. Vill. of Patchogue, 808 F.3d 951
(2d Cir. 2015) ...........................................................15
Mendocino Envtl. Ctr. v. Mendocino Cnty., 192
F.3d 1283 (9th Cir. 1999) ....................... 12, 13, 14, 25
Mitchell v. Horn, 318 F.3d 523 (3d Cir. 2003) ............14
NAACP v. Alabama ex rel. Patterson, 357 U.S.
449 (1958) ................................................................19
Nieves v. Bartlett, 139 S. Ct. 1715 (2019) ...................12
Patsy v. Bd. of Regents of Fla., 457 U.S. 496
(1982) .......................................................................25
Phelps v. Hamilton, 122 F.3d 1309 (10th Cir.
1997) .................................................................. 22, 23
Poole v. Cnty. of Otero, 271 F.3d 955 (10th Cir.
2001) .................................................................. 14, 15
Pub. Utils. Comm’n of Cal. v. United States, 355
U.S. 534 (1958) ........................................................25
viii
TABLE OF AUTHORITIES—Continued
Page
Rodriguez v. Serna, No. 1:17-cv-01147-WJ-LF,
2019 WL 2340958 (D.N.M. June 3, 2019) ......... 13, 18
Sampson v. Buescher, 625 F.3d 1247 (10th Cir.
2010) .................................................................... 9, 20
Smith v. Plati, 258 F.3d 1167 (10th Cir. 2001) ...........24
Thaddeus–X v. Blatter, 175 F.3d 378 (6th Cir.
1999) ........................................................................14
Toolasprashad v. Bureau of Prisons, 286 F.3d
576 (D.C. Cir. 2002) .................................................14
Wooley v. Maynard, 430 U.S. 705 (1977) ....................24
Zwickler v. Koota, 389 U.S. 241 (1967) ................. 25, 26
STATUTES
28 U.S.C. § 1254 ............................................................1
REGULATIONS
Santa Fe City Campaign Code Ordinance § 9.2-6 .........3
OTHER AUTHORITIES
Timothy R. Zinnecker, Syllogisms, Enthymemes
and Fallacies, 56 Wayne L. Rev. 1581 (2010) .........17
1
OPINIONS BELOW
The Tenth Circuit’s opinion is reported at 7 F.4th
956 and is reproduced in the Appendix at App. 1–11.
The district opinion is reported at 437 F. Supp.3d 1051,
and is reproduced in the Appendix at 14–66.
---------------------------------♦---------------------------------
JURISDICTION
The Tenth Circuit issued its opinion on August 3,
2021. Petitioners filed a timely petition for rehearing,
or in the alternative, for rehearing en banc. That petition was denied on September 27, 2021. This Court has
jurisdiction under 28 U.S.C. § 1254.
---------------------------------♦---------------------------------
CONSTITUTIONAL AND
STATUTORY PROVISIONS INVOLVED
The First Amendment of the United States Constitution and the relevant Santa Fe City Campaign
Code (Santa Fe Ordinance) are reproduced at App. 70–
73.
---------------------------------♦---------------------------------
INTRODUCTION AND
STATEMENT OF THE CASE
This case is about a Santa Fe, New Mexico, ordinance that forces nonprofit organizations that spend
more than $250 supporting or opposing a ballot initiative to place on a publicly-accessible government list
2
the names, addresses, and employment information of
any donor who contributes even a penny to the organization for that purpose.
Rio Grande Foundation (RGF) sued to challenge
the constitutionality of this mandate, arguing that conditioning speech on a waiver of these privacy rights violates the First Amendment and objectively chills free
speech.
The Court of Appeals, however, ruled that because
RGF said that it expects to support or oppose ballot initiatives in the future, it lacked standing. Holding that
“an element of a chilled speech injury is an actual intention not to speak,” App. 9–10, the Tenth Circuit concluded that RGF may not seek prospective declaratory
and injunctive relief regarding the law’s constitutionality. That is illogical, contrary to existing precedent,
and likely to bar legitimate lawsuits challenging
speech-chilling laws in the future.
A. The Santa Fe soda tax campaign
RGF is a nonprofit free-market think tank based
in New Mexico, that advocates for limited government,
lower taxes, and private property rights. It is supported primarily by donations from people who agree
with its mission. Its president is Paul Gessing.
In 2017, a citywide ballot initiative was proposed
in Santa Fe, which would have levied a tax of two cents
per ounce on sugared beverages sold in the city. App.
78. RGF opposed the initiative, so it undertook a public information campaign it called “No Way Santa Fe,”
3
which consisted of four parts: a series of newspaper editorials written by Mr. Gessing, a website called NoWaySantaFe.com, a short YouTube video that was
featured on the website, and a postcard campaign. Id.
at 22. RGF spent approximately $1,500 to print the
postcards, which it intended to send to voters. Id. at 24.
But it did not make the video, and it spent no money
on the video or the website. Id. at 23, 25.
On April 6, 2017, RGF issued a news release and a
Facebook post, published its NoWaySantaFe.com website and associated YouTube video, and made other
communications about the proposed soda tax. Id. at 22.
That same day, Santa Fe Assistant City Attorney
Zachary Shandler sent Mr. Gessing a letter asserting
that RGF had spent more than $250 on broadcast advertising referring to a ballot proposition which
reached more than 100 voters, and therefore that RGF
was required to file a campaign finance statement,
pursuant to Santa Fe Ordinance § 9.2-6. Id. at 23.
The letter offered RGF the opportunity to explain, in
the event that RGF believed this requirement was inapplicable, why it was exempt from Section 9-2.6. Id.
B. The City’s disclosure requirement
Santa Fe Ordinance § 9.2-6 requires any organization that spends more than $250 to make “any form of
public communication” in support of, or opposition to,
a ballot initiative to file with the City Clerk a report
which lists all the contributions received for that purpose, regardless of the amount of the contribution. Id.
4
at 70–71. That report must—among other things—list,
for each contribution, the name, address, and occupation of the person who made that donation. App. 19–
20. News media organizations are exempt from these
requirements. Id. at 20. The City makes these reports
available to the general public. Id.
This means that if a nonprofit such as RGF spends
$250 or more on an advertisement opposing a ballot
initiative, it must place on a publicly accessible government list the names, addresses, and employment information of any donor who contributed even a penny to
RGF for that purpose. If, on the other hand, the Albuquerque Journal publishes an editorial opposing that
initiative, it is not required to do likewise.
The Ordinance is enforced by the Santa Fe Ethics
and Campaign Review Board (ECRB), which is empowered to fine individuals or entities that fail to comply. These fines may be $500 per offense per day. Id. at
75. The City Clerk is also empowered to fine individuals or entities $100 for late-filed reports. Id. at 21.
C. The 2017 enforcement proceedings
On April 7, 2017, a day after the City sent RGF the
letter asserting that RGF was in violation of the disclosure mandate, a Santa Fe resident named Edward
Stein filed a complaint with the ECRB, alleging that
RGF violated the Election and Political Campaign
Codes. Id. at 23. Also on April 7, Mr. Gessing responded
to Mr. Shandler’s April 6 letter, informing the City
that the Foundation had not spent more than $250
5
to communicate about the soda tax and that, accordingly, it would not disclose its donors to the City. Id. at
80.
On April 10, 2017, the City Clerk notified RGF
about Mr. Stein’s complaint in a letter which said RGF
could file a sworn, written response within 10 days, but
could also submit a response on or before the already
scheduled ECRB meeting on April 19, 2017. Id. at 80–
81. On April 13, 2017, Mr. Stein amended his complaint
to specifically list the “No Way Santa Fe” website and
video as violating the ordinance. Id.
The following day, Mr. Gessing submitted another
letter to the City, stating that “[w]e were planning to
engage in public communications [i.e., mailing the
postcards] that would have triggered your reporting
requirements and would have done so but for the ordinance. Requiring 501c3 nonprofits to disclose their
donors is a major burden and, accordingly, we are
choosing not to speak rather than expose the privacy
of our donors, including exposing them to potential
harassment.” Id. at 24, 81.
Mr. Gessing then destroyed the postcards—which
cost $1,500—rather than mailing them to voters as
planned. Id. at 24. He did so solely as a consequence of
the anti-privacy mandate in the Ordinance. Id.
On April 20, 2017, Mr. Gessing received yet another letter from the City, stating that—notwithstanding the fact that RGF had refrained from engaging
in further communications about the soda tax—the
ECRB would hold a formal hearing on April 24 about
6
the alleged violations of the Ordinance. Id. The April
20 letter further informed RGF that one day earlier, on
April 19 and without RGF being present, Mr. Stein had
presented his complaint to the ECRB, and had presented an affidavit from a man named Glenn Silber regarding the cost of the video. Id. The letter informed
RGF that the ECRB viewed the video and concluded
that Mr. Stein’s complaint established probable cause
to believe that there was a violation of the Ordinance.
Id.
D. The hearing before the City’s ethics board
Mr. Gessing attended the ECRB’s formal hearing
on April 24 on behalf of RGF, accompanied by an attorney. Id. at 24–25. At the hearing, Mr. Stein called Mr.
Silber as a witness. Id. at 25. Mr. Silber testified that
he is a local videographer, and that he estimated that
the video cost at least $3,000 to produce. Id. Since this
exceeded the $250 reporting threshold, the citizen complainant argued that RGF was required to disclose its
donors to the City. Although RGF spent no money on
either the video or website, Mr. Stein argued that the
video and website were in-kind donations that nevertheless triggered the disclosure requirements. Id.
Mr. Gessing then testified that RGF had neither
produced nor paid for the video or website, but simply
directed people to these resources, which had been created by a third party at that third party’s expense,
without RGF’s involvement. Id. After the hearing concluded, the ECRB issued a unanimous reprimand to
7
RGF for failing to comply with the Ordinance, and
deemed the video and website to be in-kind contributions to RGF, the value of which it estimated at $3,000.
Id.
After the hearing was completed, RGF filed the paperwork that the City demanded it file. Id. at 25–26.
This included disclosure of the separate 501(c)(3) nonprofit organization that produced the video and website, as well as the identities of individual donors who
funded the Facebook advertising purchased by RGF to
educate voters about the soda tax. Id.
Voters rejected the soda tax at the May 2017 election. Id. at 25.
E. This lawsuit
RGF then filed suit against the City to challenge
the disclosure Ordinance’s constitutionality. App. 27,
74–92. RGF alleged that the Ordinance is a burden on
free speech which cannot withstand exacting scrutiny,
and sought only declaratory and injunctive relief to bar
future application of the Ordinance. Id.
The City alleged that the Ordinance serves an “informational interest”—i.e., it helps inform voters regarding who supports or opposes ballot initiatives.
RGF argued that the City’s interest in information
about donors who contribute as little as a penny to a
nonprofit for the purposes of opposing a ballot initiative was de minimis and was far outweighed by the
8
burden the Ordinance imposes on RGF’s speech rights.
Id. at 59.
As to the latter, RGF alleged that compelled disclosure of donor identities was likely to deter donations
and to chill speech by RGF on other issues of public
importance. Pursuant to Buckley v. Valeo, 424 U.S. 1,
74 (1976), which said that compelled disclosure can
“impose a heavy burden” on free speech, and that “evidence of reprisals and threats directed against individuals or organizations holding similar views” can be
used to demonstrate that burden, RGF offered evidence of harassment, threats, and intimidation that
other free-market organizations have suffered as a
consequence of compulsory disclosure. App. 26–27, 53–
55.
The District Court, however, found that this evidence failed “to show a reasonable probability” that
RGF itself or its donors would suffer from harassment
or intimidation. Id. at 55. It found that RGF has existed since 2000 and had not experienced threats or reprisals in the past, and therefore there was no reason
to believe it would face these in the future. Id. It also
found that RGF had failed to prove that its donors
would choose not to donate if they were forced to place
their names, addresses, employment information, etc.,
on a publicly accessible government list. Id. at 55 n.8.
F. The appeal
On appeal, RGF argued that the Ordinance violates the First Amendment under the tests established
9
by this Court in Buckley and the Tenth Circuit in Coalition for Secular Government v. Williams, 815 F.3d
1267 (10th Cir. 2016), and Sampson v. Buescher, 625
F.3d 1247 (10th Cir. 2010). That is because the informational interest is only minimally served, given the
extremely low (one cent) donation threshold, and such
interest is vastly outweighed by the genuineness of the
risk that the Ordinance’s anti-privacy mandate will
chill speech by both donors and organizations.
That chilling effect is not merely subjective, as in
Laird v. Tatum, 408 U.S. 1 (1972), but is an objective,
concrete and particularized injury, as in Bigelow v. Virginia, 421 U.S. 809, 816–17 (1975), because RGF has
had this Ordinance enforced against it in the past, and
showed at trial that organizations like RGF that have
been forced to disclose information about their donors
have experienced harassment, retaliation, and intimidation. RGF also argued that it was not required to
prove that it, its employees, or its donors had themselves experienced intimidation or harassment, as the
District Court had required, App. 55, and therefore
that the District Court had applied an improper evidentiary burden. RGF asserted further that it intended
to continue endorsing or opposing ballot initiatives,
and therefore it was likely that the Ordinance would
be enforced against it in the future, thereby depriving
it and its supporters of their First Amendment rights.
Id. at 86–87. In other words, RGF showed that there is
an “objective . . . threat of specific future harm.” Laird,
408 U.S. at 13.
10
Yet the Tenth Circuit ruled that RGF lacks standing to sue. It did so on the theory that because RGF
intends to continue speaking out, its speech was not
chilled. App. 8. Asserting that “an element of a chilled
speech injury is an actual intention not to speak,” id.
at 9–10, it concluded that because RGF has “not . . .
[made] an affirmative choice not to speak,” id. at 8, it
lacked standing to present a chilling effect claim.
RGF observed that the fact that a party continues
to speak out despite a chill does not disprove the existence of a chill; on the contrary, precedent firmly establishes that a plaintiff who “perseveres [in speaking]
despite governmental interference” may still bring a
chill claim. Eaton v. Meneley, 379 F.3d 949, 955 (10th
Cir. 2004). But the panel concluded that an “actual intention not to speak” is “an element” of a chilled speech
argument, and the panel and the en banc court denied
rehearing. App. 9, 68–69.
---------------------------------♦---------------------------------
REASONS FOR GRANTING THE PETITION
The decision below creates a new element for
chilled speech cases—an element that stands in direct
conflict with the holdings of other circuits as well as
this Court’s precedent. That new element prevents
plaintiffs from bringing chill claims unless they first
“affirmative[ly] [choose] not to speak.” Id. at 8. The consequence of this new rule is to undermine the objectivity of the speech-chill inquiry and to bar plaintiffs who
11
refuse to be silenced from challenging the constitutionality of laws that burden speech.
I.
The Tenth Circuit’s newly crafted element
of chill claims, in conflict with at least
eight other Circuits, holds that plaintiff
must actually desist from speaking before
bringing suit.
A. The court below established a new test
for “chill” case that, in conflict with
other Circuits and this Court’s precedent, requires a subjective inquiry into
whether the plaintiff is actually refraining from speaking.
The theory of speech “chill” is that a law that
threatens to impose punishments or burdens on a
speaker is likely to cause that speaker and other
speakers to self-censor, rather than risk enforcement.
This means that actual enforcement cannot be the barometer of the First Amendment injury, because the
mere threat is sufficient to cause speakers to refrain.
See Cmty.-Serv. Broad. of Mid-Am., Inc. v. FCC, 593
F.2d 1102, 1118 (D.C. Cir. 1978) (“the absence of any
direct actions against individuals . . . can be viewed as
much as proof of the success of the chill as of evidence
of the absence of any need for concern.”).
Yet this Court has also recognized that the chill
inquiry cannot be merely subjective—that is, a person
cannot sue based solely on personal fear of enforcement. As this Court explained in Laird, 408 U.S. at 13,
12
there must instead be an objectively realistic risk, one
that would lead reasonable people to hesitate to exercise their free speech rights.
And several circuits have expanded on that objectivity requirement. Beginning with the Seventh Circuit in Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982),
they have held that the proper inquiry is whether
the speech burden would “deter a person of ordinary
firmness” from exercising her speech rights. Accord,
Crawford-El v. Britton, 93 F.3d 813, 826 (D.C. Cir.
1996); Mendocino Envtl. Ctr. v. Mendocino Cnty., 192
F.3d 1283, 1300 (9th Cir. 1999). Cf. Nieves v. Bartlett,
139 S. Ct. 1715, 1721 (2019) (noting use of the “person
of ordinary firmness” test in Courts of Appeals).
But the opposite is also true: there will frequently
be someone willing to continue speaking despite the
risk of enforcement. And that fact cannot defeat a chill
claim, because, as the Ninth Circuit has explained, “it
would be unjust to allow [the government] to escape
liability for a First Amendment violation merely because an unusually determined plaintiff persists in his
protected activity.” Mendocino Envtl. Ctr., 192 F.3d at
1300. Or, as the Eleventh Circuit has put it, “[t]here is
no reason to ‘reward’ government officials for picking
on unusually hardy speakers.” Bennett v. Hendrix, 423
F.3d 1247, 1252 (11th Cir. 2005).
Therefore, the objective inquiry asks not whether
the plaintiff actually desisted from speaking, but
whether the challenged law or action “would chill or
silence a person of ordinary firmness from future First
13
Amendment activities.” Mendocino Envtl. Ctr., 192
F.3d at 1300 (citation omitted). That means even
someone who “perseveres” in speaking “despite governmental interference”—who is of more than ordinary firmness—may still bring a chill claim. Eaton, 379
F.3d at 955.
For example, in Rodriguez v. Serna, No. 1:17-cv01147-WJ-LF, 2019 WL 2340958 (D.N.M. June 3,
2019), the plaintiff was a professor who sued college
officials who retaliated against her for complaining
about financial improprieties at the school. Id. at *1.
She alleged that their threats created a chilling effect
against her free speech rights. Among other things, the
college’s provost personally harassed her and even encouraged people to physically attack her. Id. at *8. Yet
she continued to speak anyway. The District Court said
that this “show[ed] extraordinary persistence” on her
part—and the fact that she continued speaking did not
mean she was barred from suing. “Rather, the inquiry
is objective,” the court said. The test was whether “a
person of ordinary firmness, faced with these alleged
threats . . . would cease their First Amendment activities.” Id. That was all that was required, so the plaintiff
had standing to sue.
Similarly, in Bennett, supra, the plaintiffs sued the
sheriff ’s office for engaging in a campaign of harassment and intimidation against them for supporting a
referendum that the sheriff ’s office opposed. Among
other things, the sheriff ’s office targeted them for surveillance, set up roadblocks near their homes, pulled
them over and ticketed them without justification,
14
obtained confidential information about them, mailed
flyers to voters that called them criminals, and even
obtained warrants for their arrest on baseless charges.
423 F.3d at 1249.
Notably, the plaintiffs continued to speak and to
contribute to political causes, although to a lesser degree than they otherwise would have. Id. The sheriff ’s
office argued that no liability could apply unless the
plaintiffs proved they had “actually [been] chilled in
the exercise of their First Amendment rights,” id. at
1251, but the Eleventh Circuit rejected that argument,
explaining that according to the objective chill inquiry,
even a plaintiff who persists in speaking may bring
suit if the complained-of conduct would have deterred
an ordinary person from speaking. Id. at 1251–52.
In fact, the First, Third, Sixth, Seventh, Ninth,
Eleventh, and D.C. Circuits—and, until this case, the
Tenth Circuit—endorsed the same objective standard.
Agosto–de–Feliciano v. Aponte–Roque, 889 F.2d 1209,
1217 (1st Cir. 1989); Mitchell v. Horn, 318 F.3d 523, 530
(3d Cir. 2003); Thaddeus–X v. Blatter, 175 F.3d 378, 396
(6th Cir. 1999) (en banc); Bart, 677 F.2d at 625; Mendocino Envtl. Ctr., 192 F.3d at 1300; Poole v. Cnty. of Otero,
271 F.3d 955, 960 (10th Cir. 2001); Bennett, 423 F.3d at
1250–51; Toolasprashad v. Bureau of Prisons, 286 F.3d
576, 585 (D.C. Cir. 2002).
The Second Circuit has mixed precedent on the
question of whether a plaintiff has to allege that she
has actually desisted from speaking in order to bring a
chill claim. In Curley v. Vill. of Suffern, 268 F.3d 65, 73
15
(2d Cir. 2001), it said a plaintiff must actually refrain
from speaking in order to have standing to bring a chill
claim, but in Mangino v. Inc. Vill. of Patchogue, 808 F.3d
951 (2d Cir. 2015), it said it had not meant to “ ‘give[ ]
the impression that silencing of the plaintiff ’s speech
is the only injury sufficient to give a First Amendment
plaintiff standing.’ ” Id. at 956 (quoting Dorsett v. Cnty.
of Nassau, 732 F.3d 157, 160 (2d Cir. 2013)). The idea
that a plaintiff only has standing to bring a chill case
if she has actually self-censored, the court said, resulted from “ ‘an imprecise statement of law,’ ” id., and
even people who persist in speaking despite the burden on their rights can still bring suit.
The Tenth Circuit also endorsed the objective
test in Poole, a case in which the plaintiff argued that
he experienced a chilling effect when police officers
brought charges against him to deter him from filing a
civil rights case against them. The court said the case
could proceed even if “the injury [did] not actually . . .
deter[ ] Mr. Poole from filing this lawsuit,” because the
question was whether the government’s conduct “would
chill a person of ordinary firmness.” 271 F.3d at 960 (citation omitted).
But in this case, the Tenth Circuit reversed course
and created an entirely new test whereby “an element
of a chilled speech injury is an actual intention not to
speak.” App. 9–10. Thus, it concluded that RGF lacks
standing to bring this chill claim because it intends
to persist in exercising its First Amendment rights.
The court said that RGF cannot sue because it failed
to “alleg[e] [that] it will not engage in future speech
16
activity,” id. at 8—yet no such allegation is required
under an objective test. That is a subjective inquiry—
precisely the kind of subjectivity this Court rejected in
Laird.
The decision below—creating a new test whereby
a plaintiff must allege that it has actually ceased
speaking before it may bring a chill case—therefore
conflicts with this Court’s precedent and with the precedent of other Circuits and changes the rules for
chilled-speech claims.
B. Walker did not say plaintiffs must refuse to speak in order to sue—it only
said plaintiffs who do choose not to
speak can still sue.
The Court of Appeals was led astray by a misunderstanding of Initiative & Referendum Institute v.
Walker, 450 F.3d 1082 (10th Cir. 2006), a case about
whether a plaintiff who does refrain from speaking can
still challenge the legality of a speech restriction. That
case said that a plaintiff who does refrain from speaking can still bring suit. The panel below interpreted it
as saying that a plaintiff must refrain from speaking
before bringing suit. That fallacy led it to create a new
rule of law that conflicts with the decisions of other Circuits and will bar legitimate speech claims from being
heard.
The Walker case sought to resolve a paradox in
standing law with respect to chill claims: how does a
plaintiff sue if she is afraid to speak? Since plaintiffs
17
must assert a particularized injury, a plaintiff would
normally have to point to a specific plan to act in a way
prohibited by the law, but in a chill case, where the
plaintiff fears to speak because of that prohibition,
such a requirement would “make[ ] no sense.” Id. at
1089. Therefore, the Court said, a plaintiff can still sue
by alleging that she refrained from speaking.
That does not mean a plaintiff who still does speak
lacks standing. Since the test is an objective “person of
ordinary firmness” test, then plaintiffs who show extraordinary firmness are not barred from suing. Yet the
panel read Walker as saying just that. Simply put,
where Walker said a plaintiff “can satisfy” the standing
requirement by alleging she fears to speak, id. (emphasis added), but the court below said the plaintiff must
satisfy the standing requirement by alleging she fears
to speak. Reading Walker that way commits the fallacy
of the disjunctive syllogism. See Timothy R. Zinnecker,
Syllogisms, Enthymemes and Fallacies, 56 Wayne L.
Rev. 1581, 1649 (2010). The Court of Appeals effectively
said:
A. Plaintiffs can bring chill claims by alleging that they’ve self-censored.
B. RGF has not alleged that it has selfcensored.
∴
RGF may not bring a chill claim.
Thus, the panel found that because RGF intends to
speak about ballot initiatives in the future—which
means RGF will be subject to the disclosure mandate
18
and/or punishment for failure to comply—RGF lacks
standing to challenge that law.
Indeed, it said that the decision not to speak is an
element of a chill claim—a truly new proposition of law.
And given that the Tenth Circuit’s decision was published, this new rule—which conflicts with the law of
other Circuits—will bar plaintiffs from bringing legitimate chill cases in the future. That warrants certiorari.
II.
The Court of Appeals’ new element for
chill claims will bar plaintiffs from bringing legitimate challenges to donor disclosure mandates.
The result of the Tenth Circuit’s newly-minted element for chill claims will be to block people and organizations from challenging speech burdens unless
they “mak[e] an affirmative choice not to speak.” App.
8. That principle will effectively close the courthouse
doors to individuals and organizations seeking to bring
legitimate First Amendment cases.
In fact, it is most likely to deter precisely those
plaintiffs who are in the best position to bring suit to
challenge speech burdens. It is precisely those people
of “extraordinary persistence,” Serna, 2019 WL
2340958 at *8, who are most likely to be able to spend
the money and risk the hostility necessary to challenge the constitutionality of a speech burden. By contrast, people who “mak[e] an affirmative choice not to
speak,” App. 8, are also more likely to also make the
19
affirmative choice not to sue. Thus the Tenth Circuit’s
new rule will increase the risk that chills on speech
will remain on the books, unchallenged—precisely because they are effective.
The reason Walker went out of its way to say plaintiffs can sue even if they choose not to speak is because
the decision to file a lawsuit is itself subject to the
chilling effect. If a person fears being punished for expressing her views, she is also likely to fear suing over
that. The decision below puts a new spin on this paradox. By saying that an element of a chill claim is a
choice to refrain from speaking, the court below essentially said that a person must be both afraid to speak
and also unafraid to file suit before bringing a chill
claim. This is illogical, and is likely to result in barring
the courts to people at risk of punishment for speech.
This is a particular concern in the context of donor
disclosure laws, a subject this Court has addressed in
important recent decisions, such as Americans for
Prosperity Foundation v. Bonta, 141 S. Ct. 2373 (2021).
Such cases have recognized that forcing nonprofits to
publish the names of their donors imposes a serious
burden on speech rights. See id. at 1281 (“the petitioners . . . suffered from threats and harassment in the
past, and . . . donors were likely to face similar retaliation in the future if their affiliations became publicly
known.”).
Bonta cited NAACP v. Alabama ex rel. Patterson,
357 U.S. 449 (1958), and similar cases for the proposition that forcing an organization to publish the
20
identities of its supporters is likely to chill speech both
by the organization and by the supporters, who may
“face[ ] a risk of reprisals if their affiliation with the
organization became known.” Bonta, 141 S. Ct. at 2382.
And Bonta was notably similar to this case. For example, the state interest at issue there—the administrative “efficiency” interest, id. at 2385—was minimal
compared to the burden, which took the form of the
risk of retaliation and harassment. Id. at 2387 (“Mere
administrative convenience does not remotely ‘reflect
the seriousness of the actual burden’ that the demand
for [disclosure] imposes on donors’ association rights.”
(citation omitted)). Likewise here, the alleged informational interest is minimal compared to the burden on
RGF’s free speech rights and those of its donors, given
the low contribution threshold that triggers the disclosure mandate—i.e., even a donor who pays a penny toward RGF’s speech on ballot initiatives must have her
information published. Cf. Sampson, 625 F.3d at 1261
(government’s interest in compelling disclosure of donors
who contributed de minimis amounts was “minimal.”).
In Bonta, this Court was also particularly concerned with the fact that California failed to protect
the privacy of the disclosed information, despite the
state’s promises to do so, see 141 S. Ct. at 2381, which
increased the likelihood of retaliation or harassment.
Here, the City does not promise to keep the information private—on the contrary, the entire point is to
force publication of the names, addresses, and employment information of donors, and to maintain that information on a publicly-accessible list. The likelihood
21
that such an anti-privacy mandate will chill speech is
obvious.
And if it were not, the evidence adduced at trial
revealed that other, similar organizations have suffered harassment, retaliation, and violence due to such
mandates. See App. 26–27. This is sufficient to show
the risk of chill under the objective test. What’s more,
RGF destroyed $1,500 worth of postcards that it had
intended to distribute to voters, in hopes of avoiding
the Ordinance’s anti-privacy rule, id. at 46 n.5, revealing that RGF was in fact deterred from exercising its
First Amendment rights by the Ordinance.
Yet the Tenth Circuit’s newly-minted “element” of
a chill claim means that RGF still cannot bring suit to
challenge that requirement, because RGF intends to
exercise its speech rights in the future. Under its new
rule, only an organization that is both afraid to speak
and unafraid to sue will have standing. This Court
should grant certiorari to provide guidance to lower
courts which will protect the right of speakers to defend their freedom of speech against chilling effects.
III. The Court of Appeals’ new test for chill
conflicts with this Court’s principles regarding standing.
Not only does the decision misconstrue the law
and create a new element in chill claims—one that conflicts with this Court’s precedent and that of other circuits—but it also conflicts in a deeper way with basic
principles of the law of standing.
22
In order to have standing to seek prospective injunctive relief, a plaintiff must have “concrete plans” to
act in ways that will incur the enforcement of the challenged law, Lujan v. Defenders of Wildlife, 504 U.S. 555,
564 (1992)—that is, there must be a “genuine threat of
imminent prosecution,” Holder v. Humanitarian Law
Project, 561 U.S. 1, 12 (2010) (citation omitted), as opposed to a merely speculative possibility.
For example, the plaintiffs in Phelps v. Hamilton,
122 F.3d 1309 (10th Cir. 1997), lacked standing to challenge the constitutionality of certain laws against
stalking and harassment because they “failed to put
forth any objective evidence that they intend to engage
in activities prohibited by the [statute] . . . or that they
face an imminent threat of prosecution.” Id. at 1327.
By contrast, in ACORN v. City of Tulsa, 835 F.2d 735
(10th Cir. 1987), an organization did have standing to
challenge certain speech restrictions because it did
“show[ ] an unmistakable intention to engage in activities that are prohibited by each of the challenged ordinances,” and the government had “demonstrated its
resolve to enforce the ordinances.” Id. at 739. It was not
necessary for the organization to actually be prosecuted before suing. Dombrowski v. Pfister, 380 U.S. 479,
486 (1965). Instead, it only had to “allege[ ] an intention to engage in a course of conduct arguably affected
with a constitutional interest, but proscribed by a statute, and [the existence of ] a credible threat of prosecution thereunder.” ACORN, 835 F.2d at 739 (citation
omitted).
23
Under that rule, RGF would have lacked standing
to sue if it had no intention of speaking in the future—
as with the plaintiffs in Phelps. Only because RGF does
intend to engage in speech that is subject to the challenged ordinance does it have standing, as the plaintiffs did in ACORN.
In Colorado Outfitters Ass’n v. Hickenlooper, 823
F.3d 537, 550–51 (10th Cir. 2016), the Tenth Circuit
held that a plaintiff lacked standing to challenge a
law restricting possession of certain magazines for
firearms because she “expressed no concrete plans to
engage in conduct that had any potential to violate [the
statute].” That meant “she failed to demonstrate an
imminent injury for purposes of mounting a preenforcement challenge.” Id.
Likewise, in Brady Campaign to Prevent Gun Violence v. Brownback, 110 F. Supp.3d 1086 (D. Kan.
2015), the district court found that an organization
lacked standing to challenge the constitutionality of
certain laws relating to firearms because in order to
have standing, a plaintiff “must set forth ‘concrete
plans’ to perform, in the near future, the conduct that
would subject him to the threatened injury,” but the
plaintiff had not “indicate[d] . . . any concrete plans to
engage in conduct proscribed by” the challenged laws.
Id. at 1097–98.
Thus if RGF had no plans to support or oppose ballot initiatives in the future, and thereby incur the enforcement of the ordinance, it would lack standing. But
RGF does have standing, because it has been punished
24
under the challenged ordinance before, and when RGF
resumes speaking, it will be again. Bigelow, 421 U.S. at
816–17.
This case is therefore like Wooley v. Maynard, 430
U.S. 705 (1977), in which the plaintiffs were punished
for covering up a motto on their license plate that they
found offensive for religious reasons. Id. at 707–08. The
statute prohibited “defacement” of license plates, id. at
713, but the plaintiffs believed that being punished for
this violated their First Amendment rights. Id. at 714.
Rather than appealing the citations they were issued,
or seeking restitution, they sought prospective injunctive relief to prevent future enforcement of the antidefacement statute, if and when they again covered
that part of their license plate. Id. at 711. The Supreme
Court let the case proceed. The plaintiffs had standing
because they had been injured in the past and alleged
a plan to continue behaving in a way that would trigger enforcement of the law again.
RGF has done the same. It intends to support or
oppose ballot initiatives in the future. Doing so will
trigger the disclosure requirement, which RGF alleges
violates the First Amendment, and there’s no dispute
that the ordinance will be enforced against RGF and
its donors again. That is why RGF does have standing.
RGF further contends that the mandate is such that it
would deter a person of ordinary firmness from speaking. Smith v. Plati, 258 F.3d 1167, 1176 (10th Cir. 2001).
These facts should mean RGF may bring this chill case
for prospective injunctive relief.
25
But the Tenth Circuit’s newly-minted “element” of
a chill claim—requiring a plaintiff to actually give up
his or her speech rights before bringing suit—throws
these standing principles out of whack. A plaintiff who
chooses to refrain from speaking out of fear of punishment will have to face the risk of being pleaded out of
court for lack of standing due to the fact that he or she
cannot prove an “unmistakable intention to engage in
activities that are prohibited,” ACORN, 835 F.2d at
739, whereas the “unusually determined plaintiff ” who
“persists in his protected activity” despite the speech
burden will risk being barred from court because he or
she has not affirmatively chosen to remain silent. Mendocino Envtl. Ctr., 192 F.3d at 1300. That is illogical.
The Tenth Circuit’s new rule also conflicts with
this Court’s standing doctrines in another way. In several contexts, this Court has said that a person is not
required to submit to an unconstitutional law before
challenging its constitutionality. See, e.g., Pub. Utils.
Comm’n of Cal. v. United States, 355 U.S. 534, 540
(1958) (“where the only question is whether it is constitutional to fasten the administrative procedure onto
the litigant, the administrative agency may be defied
and judicial relief sought as the only effective way of
protecting the asserted constitutional right.”); cf. Patsy
v. Bd. of Regents of Fla., 457 U.S. 496, 506 (1982) (plaintiffs may “choose the [federal] forum in which to seek
relief ” without first going through a state proceeding).
Thus in Zwickler v. Koota, 389 U.S. 241 (1967),
the Court allowed a lawsuit to proceed against a New
York statute that requires any handbill supporting or
26
opposing a candidate to also include the name and address of the printer of the handbill. The Court said the
plaintiff was not required to first file suit in state court,
because “to force the plaintiff . . . to suffer the delay of
state court proceedings might itself effect the impermissible chilling of the very constitutional right he
seeks to protect.” Id. at 252. And in Dombrowski, 380
U.S. at 486, this Court said a person could bring a
pre-enforcement challenge to a burden on free speech,
because “the sensitive nature of constitutionally protected expression” militated against a rule that would
require plaintiffs to “risk prosecution [before] test[ing]
their rights.”
But the new rule adopted by the Tenth Circuit
would accomplish something contrary to this precedent: it requires a plaintiff to actually surrender her
free speech rights as the price of bringing suit to vindicate those very rights—which “mak[es] vindication
of freedom of expression await the outcome of protracted litigation.” Id. at 487.
In short, the Tenth Circuit’s novel standing “element” will “ ‘reward’ government officials for picking on
unusually hardy speakers.” Bennett, 423 F.3d at 1252.
And those unusually hardy speakers are likely to be
organizations like RGF—institutions that have the
wherewithal to bring lawsuits—whereas those people
most likely to succumb to a chill are those least likely
to file a lawsuit to vindicate their rights.
---------------------------------♦---------------------------------
27
CONCLUSION
The Tenth Circuit’s novel new element of chill—
fashioned in direct conflict with the holdings of other
Circuits and this Court’s precedent—will deter the
most vulnerable plaintiffs from bringing suit to defend
their First Amendment rights and will encourage further burdens on donor privacy and free speech. This
petition should therefore be granted.
Respectfully submitted,
TIMOTHY SANDEFUR*
JONATHAN RICHES
SCHARF-NORTON CENTER FOR
CONSTITUTIONAL LITIGATION
AT THE GOLDWATER INSTITUTE
500 E. Coronado Rd.
Phoenix, AZ 85004
(602) 462-5000
litigation@goldwaterinstitute.org
*Counsel of Record
Counsel for Petitioner
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.