Reply Brief — Rio Grande Foundation, Petitioner v. City of Santa Fe, New Mexico, et al.

No. 21-951

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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

---------------------------------♦--------------------------------PETITIONER’S REPLY

---------------------------------♦--------------------------------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

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ......................................

i

TABLE OF AUTHORITIES .................................

ii

INTRODUCTION ................................................

1

ARGUMENT ........................................................

4

I.

II.

The decision below conflicts with those of

this Court and the First, Third, Sixth, Seventh, Ninth, Eleventh, and D.C. Circuits ....

4

This case is an ideal vehicle for resolving

the question presented ..............................

8

A. There’s no uncertainty that RGF will

speak again in ways that incur enforcement—and except for the Tenth

Circuit’s new standing rule, that’s all

RGF needs to show ..............................

9

B. The amendments to the ordinance

change nothing relevant ...................... 11

CONCLUSION..................................................... 13

APPENDIX

Santa Fe, New Mexico—Code of Ordinances—

Chapter IX Election and Political Campaign

Codes, Section 9-2.6 ......................................... App. 1

ii

TABLE OF AUTHORITIES

Page

CASES

AFP v. Bonta, 141 S. Ct. 2373 (2021) .........................10

Babbitt v. United Farm Workers, 442 U.S. 289

(1979) .........................................................................2

Bennett v. Hendrix, 423 F.3d 1247 (11th Cir.

2005) .............................................................. 2, 4, 6, 7

Bennie v. Munn, 822 F.3d 392 (8th Cir. 2016) ..............2

Blanchette v. Conn. Gen. Ins. Corps., 419 U.S. 102

(1974) .........................................................................9

Brown v. Socialist Workers ‘74 Campaign Comm.,

459 U.S. 87 (1982) ...................................................10

Buckley v. Valeo, 424 U.S. 1 (1976) .............................10

Citizens United v. FEC, 558 U.S. 310 (2010) ................3

City of L.A. v. Lyons, 461 U.S. 95 (1983) .......................7

Coalition for Secular Government v. Williams,

815 F.3d 1267 (10th Cir. 2016) ............................ 3, 12

Eaton v. Meneley, 379 F.3d 949 (10th Cir. 2004) ..... 5, 7, 8

Edgar v. Haines, 2 F.4th 298 (4th Cir. 2021)............ 2, 6

Garcia v. Trenton, 348 F.3d 726 (8th Cir. 2003) ....... 2, 5

Initiative & Referendum Inst. v. Walker, 450 F.3d

1082 (10th Cir. 2006) ................................. 3, 9, 10, 11

Keenan v. Tejeda, 290 F.3d 252 (5th Cir. 2002) ............6

Laird v. Tatum, 408 U.S. 1 (1972) ............................. 1, 4

Mirabella v. Villard, 853 F.3d 641 (3d Cir. 2017) ..... 6, 7

iii

TABLE OF AUTHORITIES—Continued

Page

Sampson v. Buescher, 625 F.3d 1247 (10th Cir.

2010) .................................................................... 3, 12

Valley Forge Christian Coll. v. Ams. United for

Separation of Church & State, 454 U.S. 464

(1982) .........................................................................5

Villarreal v. City of Laredo, 17 F.4th 532 (5th Cir.

2021) ..........................................................................6

Wolfe v. Strankman, 392 F.3d 358 (9th Cir. 2004) .... 1, 5

Wooley v. Maynard, 430 U.S. 705 (1977) ......................1

REGULATIONS

Santa Fe Ordinance 9-2.6 .............................................3

1

INTRODUCTION

The City enforced the Ordinance against Rio

Grande Foundation (RGF) in the past and will again,

because RGF intends to engage again in the kind of

speech that triggers enforcement. RGF therefore sought

prospective injunctive relief to prevent such enforcement. That’s a routine application of the law of standing. See, e.g., Wooley v. Maynard, 430 U.S. 705, 711

(1977).

RGF sought no retrospective relief. But past enforcement proves future enforcement is likely. See id.;

Wolfe v. Strankman, 392 F.3d 358, 363 (9th Cir. 2004).

It’s therefore not true that RGF “disavowed any reliance on past enforcement . . . as a basis for standing.”

Opp’n at 14. Rather, like the plaintiffs in Wooley and

Wolfe, RGF relied on past enforcement to prove standing.

But rather than apply this rudimentary standing

principle, the Tenth Circuit created a new rule—one

that turns on a subjective inquiry instead of the objective inquiry required by the decisions of other Circuits

and this Court. Under that new rule, a plaintiff must

“mak[e] an affirmative choice not to speak” before she

can challenge a burden on her speech rights. Pet. App.

at 8. That conflicts with the rule in other Circuits, is

illogical, and will lead to deleterious consequences.

The Opposition doesn’t defend that new rule. Instead, its argument is effectively summarized in its

footnote 1, which admits that Laird v. Tatum, 408 U.S.

1, 12 (1972), said the standing inquiry is objective, not

2

subjective, but says a plaintiff “ ‘must show that he has

sustained, or is immediately in danger of sustaining, a

direct injury”—which is true—and that RGF has only

experienced “purely subjective fear”—which is not

true. Opp’n at 13.1 RGF has sustained, and is in danger

of again sustaining, direct injury, because RGF has already been subjected to enforcement. And it intends “to

engage in a course of conduct arguably affected with a

constitutional interest”—i.e., it wants to speak again—

which means there is “a credible threat of prosecution”

when it does. Babbitt v. United Farm Workers, 442 U.S.

289, 298 (1979). Thus, were it not for the new rule

adopted below, RGF would have standing.

In other Circuits and in this Court, the law is that

the test is objective: would the speech burden deter a

person of ordinary sensitivity from speaking? See, e.g.,

Garcia v. Trenton, 348 F.3d 726, 729 (8th Cir. 2003),

Bennett v. Hendrix, 423 F.3d 1247, 1251 (11th Cir. 2005),

Bennie v. Munn, 822 F.3d 392, 400 (8th Cir. 2016). If

the plaintiff can show a likelihood of future enforcement, she has standing, even if she keeps speaking despite the speech burden. Edgar v. Haines, 2 F.4th 298,

310 (4th Cir. 2021). This conflict should be rectified.

The City claims that recent amendments to the

Ordinance render this case moot. That is not true. The

amendment merely increases the amounts that trigger

1

The City says the Ordinance “prohibits no speech.” Opp’n

at 4. This is also untrue. The Ordinance prohibits RGF from communicating a political opinion to the public, absent the surrender

of donors’ privacy. That, by definition, is a prohibition of certain

kinds of speech.

3

the disclosure requirement. Santa Fe Ordinance 9-2.6,

Reply App. 1–2. Now, if RGF spends more than $500 on

a communication that “refers to a clearly identifiable

. . . ballot proposition” and reaches more than 100 voters, it must place on a publicly accessible government

list the names, addresses, phone numbers, and employment information of anybody who donated more than

$25 for that purpose. Id. at 1–3. These are trivial

changes from the original version and would have

made no difference had they been in place from the beginning. These amounts are legally indistinguishable

from the amounts found unconstitutionally low in

Sampson v. Buescher, 625 F.3d 1247, 1249 (10th Cir.

2010), and Coalition for Secular Government v. Williams, 815 F.3d 1267, 1271 (10th Cir. 2016). And because RGF exceeded these thresholds in the past, RGF

would have been subject to the same enforcement proceedings even if they had been the law all along.

The City claims RGF has not specified what communications it plans to engage in in the future, or

when, and therefore lacks standing for prospective relief. Opp’n at 33–34. But no such showing is required.

Initiative & Referendum Inst. v. Walker, 450 F.3d 1082,

1088–89 (10th Cir. 2006). In fact, to force a person to

tell the government what she plans to say before she

may be allowed to say it is contrary to the law. See Citizens United v. FEC, 558 U.S. 310, 335 (2010) (that

would be a prior restraint).

There are no factual disputes to be resolved here,

no ancillary matters or procedural irregularities involved, and the question presented is a clear legal issue

4

with important consequences. The Tenth Circuit’s

new rule conflicts with the law of other Circuits, and

if left unchanged, will bar litigants from vindicating

their free speech rights. The Court should grant the petition.

ARGUMENT

I.

The decision below conflicts with those of

the First, Third, Sixth, Seventh, Ninth,

Eleventh, and D.C. Circuits.

This Court said in Laird, 408 U.S. at 13–14, that

the test for a speech-chill case is objective.2 It asks

whether the challenged speech burden is such that a

reasonable person would be deterred from speaking.

The reason is that one consequence of a speech

burden is self-censorship, and it’s hard to measure or

prove the existence of self-censorship. Moreover, some

people will not self-censor; they will keep speaking despite the speech burden. If that were the benchmark,

unconstitutional restrictions would escape judicial notice whenever someone happened to be bold enough to

continue speaking despite the restriction. Such a rule

would “ ‘reward’ government officials for picking on unusually hardy speakers” by preventing courts from interceding. Hendrix, 423 F.3d at 1252.

2

It is revealing that the decision below never even cites

Laird.

5

Thus, the test is simply whether the burden would

deter a reasonable person from speaking—and someone can sue even if she has continued to speak anyway.

See, e.g., Eaton v. Meneley, 379 F.3d 949, 955 (10th Cir.

2004).

Of course, she cannot sue based on mere subjective

offense at the existence of a law. See Valley Forge Christian Coll. v. Ams. United for Separation of Church &

State, 454 U.S. 464, 473 (1982). A person has standing

to seek prospective injunctive relief only if she shows a

likelihood of future enforcement against her. RGF did

show that, because RGF has suffered enforcement before, Pet. 5–7, and plans to speak again, whereupon it

will be subjected to enforcement again. Pet. App. 86–87

¶¶ 54–60. The best way for a plaintiff to prove standing

for prospective relief is to show past enforcement.

Wolfe, 392 F.3d at 363.

The Tenth Circuit did not deny any of this. Instead, it created a new rule: only someone who has in

fact ceased to speak may bring a speech-chill case. Pet.

App. at 8. Because RGF intends to speak about ballot

initiatives in the future—exposing itself to future enforcement—the Tenth Circuit said it lacks standing to

sue. That’s not only illogical, it also conflicts with the

precedent of other Circuits, which have said that even

a plaintiff who continues to speak may sue to challenge

a speech burden.

For instance, in Garcia, 348 F.3d at 729, the

Eighth Circuit said “[t]he test is an objective one, not

subjective. The question is not whether the plaintiff

6

herself was deterred.” In Hendrix, 423 F.3d at 1250–51,

the Eleventh Circuit rejected the “subjective test,

under which the plaintiffs would have to show that

they were actually chilled,” in favor of the objective

inquiry into whether a speech burden “ ‘would likely

deter ‘a person of ordinary firmness’ from the exercise

of First Amendment rights.” (citation omitted). The

Third Circuit said the same in Mirabella v. Villard,

853 F.3d 641, 650 (3d Cir. 2017), when it rejected the

idea that plaintiffs are barred from suing if they “were

undeterred in the exercise of their constitutional

rights.” And the Fourth Circuit said last summer

that “plaintiffs need not show that the government action led them to stop speaking” in order to have standing to challenge a speech burden—they need only

“show that the [burden] would be ‘likely to deter a person of ordinary firmness from the exercise of First

Amendment rights.’ ” Edgar, 2 F.4th at 310 (citation

omitted). See further Pet. at 14–16 (citing other conflicting cases).

By contrast, the Fifth Circuit requires plaintiffs

to prove that their “exercise of free speech has been

curtailed.” Keenan v. Tejeda, 290 F.3d 252, 259 (5th Cir.

2002). In fact, that Circuit has acknowledged the Circuit split at issue here. In November, it acknowledged

that “the law in other circuits” is “that ‘a chilling injury

does not require the injured party to stop exercising

her First Amendment rights,’ ” but that this is not the

rule in the Fifth Circuit. Villarreal v. City of Laredo, 17

F.4th 532, 542 (5th Cir. 2021).

7

Here, the Tenth Circuit said the standing inquiry

requires RGF to “mak[e] an affirmative choice not to

speak” before it can sue. Pet. App. at 8. As the Petition

explains (at 18–20), this will probably prevent those

parties who are best suited to bring legal challenges

from doing so. That rewards government officials for

picking on unusually hardy speakers. Hendrix, 423

F.3d at 1252.

Attempting to downplay this Circuit split, the City

claims RGF is conflating standing with merits, and

that the plaintiffs in cases such as Hendrix, Mirabella,

etc., had standing because they “complain[ed] about

distinct official conduct that actually occurred.” Opp’n

at 25. But RGF does complain about distinct official

conduct that actually occurred—and will again. RGF

had the ordinance enforced against it before, and will

again. That’s all standing requires.

The City is right that many of the cases RGF cites

were retrospective, id. at 26, whereas RGF is seeking

prospective relief. But that makes no difference. The

standing test for prospective relief is whether RGF is

likely to suffer a future injury absent an injunction. A

plaintiff can prove this by showing that it has been injured before and will be again. City of L.A. v. Lyons, 461

U.S. 95, 111 (1983). RGF did that.

It’s notable that the City makes no real effort to

defend this new rule. Instead, it tries to distinguish

the cases RGF cites. But these distinctions are red

herrings. For example, the City says Eaton, 379 F.3d

949, involved “retaliatory conduct” instead of the

8

“prospective chill.” Opp’n at 26–27. But the retaliatory

conduct in Eaton was challenged because it chilled

speech. And the court said “our standard for evaluating

that chilling effect on speech is objective, rather than

subjective. . . . [This] objective standard permits a

plaintiff who perseveres despite governmental interference to bring suit.” 379 F.3d at 954–55 (citations

omitted). That’s the opposite of the rule created below.

II.

This case is an ideal vehicle for resolving

the question presented.

This case has a fully developed record leaving only

legal questions to be resolved. The Circuit split is

stark, and if unaltered, will have dramatic consequences. Whether a plaintiff must affirmatively choose

not to speak in order to have standing to bring a chill

claim is a question of great significance that is cleanly

presented, without need for further ripening.

The City concludes with two baseless arguments

that this case is a bad vehicle. First it claims that it’s

either uncertain whether RGF will speak again, or

that RGF must specify when it will speak and what it

will say before it may sue. Opp’n at 32. But it’s not unclear whether RGF will speak again, and it’s unnecessary for RGF to be more specific than that. Second, the

City says the ordinance has been amended in ways

that render this case moot. Id. at 4. That is false. The

amendments are trivial and would have made no difference even if they had been in place from the beginning.

9

A. There’s no uncertainty that RGF will

speak again in ways that incur enforcement—and except for the Tenth Circuit’s new standing rule, that’s all RGF

needs to show.

The City says it’s unlikely there will be future initiatives on which RGF can speak, because citywide ballot questions are “intermittent[ ].” Id. at 32. Putting

aside the fact that a 2019 election featured a bond issue, the law does not say intermittent chilling effects

are acceptable.

The Ordinance’s requirements aren’t in dispute,

nor are the consequences of its enforcement: when

RGF “refers to a clearly identifiable candidate or ballot

proposition within sixty (60) days before an election,”

Pet. App. at 71, it will be forced to disclose its donors’

private information—rendering them liable to retaliation and harassment. Id. at 26–27. And “[w]here the

inevitability of the operation of a statute against certain individuals is patent, it is irrelevant to the existence of a justiciable controversy that there will be a

time delay before the disputed provisions will come

into effect.” Blanchette v. Conn. Gen. Ins. Corps., 419

U.S. 102, 143 (1974).

In Walker, the Tenth Circuit itself rejected the argument the City offers here. That case involved rules

governing petition circulators; the defendants argued

that the plaintiffs lacked standing because it wasn’t

clear when another petition campaign would be

mounted. The court said that was irrelevant: “[t]here

10

is no occasion in this case for speculation about . . .

whether the law will be enforced against the Plaintiffs.

If anyone, Plaintiffs included, mounts an initiative

campaign involving wildlife management, the initiative will be subject to the [challenged] requirement,

and any attendant effects on the freedom of speech will

be felt.” 450 F.3d at 1090. And given the plaintiffs’ “past

and current conduct,” and their “desire to use the initiative process” in the future, there was nothing “abstract or speculative” that might bar their standing. Id.

at 1090–92.

Respondents say RGF is relying on “hypothetical

effects on imagined third parties,” Opp’n at 2, but this,

too, is untrue. RGF is relying on actual effects on actual parties—itself and the similar organizations that

testified at trial. RGF already had this Ordinance enforced against it—and will again when it speaks again.

And the record demonstrated that similar disclosure

mandates have resulted in harassment against people

who support organizations like RGF, Pet. App. 26–27—

matters this Court recognized as grave concerns in

AFP v. Bonta, 141 S. Ct. 2373, 2388 (2021).

Buckley v. Valeo, 424 U.S. 1, 74 (1976), and Brown

v. Socialist Workers ‘74 Campaign Comm., 459 U.S. 87,

94 (1982), said plaintiffs in RGF’s position can prove

the risks of compelled disclosure by “offer[ing] evidence of reprisals and threats directed against individuals or organizations holding similar views.” RGF did

that. There are no hypotheticals or imagined parties

here.

11

The City says RGF did not “allege any ‘specific

statements [it] intend[s] to make in future election cycles.’ ” Opp’n at 32 (citation omitted). But the law

doesn’t require that. Again, Walker, 450 F.3d at 1088–

89, expressly rejected the proposition that a plaintiff

must allege “I have specific plans to engage in XYZ

speech next Tuesday” before suing. It said that “cannot

be right.” Id. Instead, a plaintiff may challenge a burden on speech as long as the plaintiff has “a present

desire, though no specific plans, to engage in such

speech.” Id. at 1089 (emphasis added). RGF easily satisfied that standard. See Pet. App. 86–87 ¶¶ 54–59.

There’s nothing speculative here. For 20 years,

RGF has engaged in advocacy and policy analysis on

issues related to free markets, lower taxes, etc. Id. at

55. It wants to speak again the next time an initiative

is proposed that affects these values—and the City will

enforce the Ordinance then. That’s all standing requires—except for the Tenth Circuit’s new rule requiring self-censorship.

B. The amendments to the ordinance change

nothing relevant.

When this case began, the Ordinance required any

organization spending more than $250 to communicate to the public about a ballot initiative to place on a

publicly accessible government list the names, addresses, and other private information of anyone who

donated even a penny for that purpose.

12

RGF argued that this was facially unconstitutional under Sampson and Williams because the constitutionality of disclosure mandates falls on a “sliding

scale”: the larger the amounts involved, the greater the

legitimate government interest in requiring disclosure—whereas, if the amounts are low, the “informational interest” becomes too small to justify that

burden. See Williams, 815 F.3d at 1278; Sampson, 625

F.3d at 1260–61. Those cases concerned mandates that

included a $200 triggering amount and a $20 disclosure threshold—i.e., any organization spending more

than $200 had to reveal the identities of anyone who

contributed $20. Both cases found these amounts too

low. Such low amounts meant disclosures would not inform the public about who sponsors a political position,

just who supports it—and that’s unconstitutional.

Here, the Ordinance’s original triggering amount

was $250 and its disclosure threshold $0.01—consequently, RGF argued that the ordinance is unconstitutional. That is not changed by the new dollar amounts.

Reply App. 1–3. The $500 trigger is still so low that

practically any effort to use “public communication” to

“communicat[e] with 100 or more voters” will exceed it.

And the new $25 disclosure threshold is indistinguishable from the $20 amount found unconstitutional in

Sampson and Williams. If these new amounts had

been in the Ordinance already, this case would be unchanged.

Remember: RGF spent $1,500 on postcards urging

voters to vote against the initiative. When the City told

RGF that this would trigger the Ordinance, RGF chose

13

to destroy the postcards rather than send them, in a

(futile) effort to avoid being forced to turn over donors’

private information. Pet. App. at 24. That simply is a

chilling effect—and nothing about the amendments

would have changed that result.

CONCLUSION

The petition should 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