Reply Brief — Bemis Pentecostal Church v. Tennessee

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No. 87-317 ~~ |

| een, a) we dRar

IN THE %

Supreme Court of the Gnited States

OcTOBER TERM, 1987

BEMIS PENTECOSTAL CHURCH, et al.,

Appellants,

v.

STATE OF TENNESSEE, et al.,

Appellees.

On Appeal From The Judgment Of The Supreme Court

Of The State Of Tennessee

APPELLANTS’ BRIEF IN RESPONSE TO

MOTION TO DISMISS OR AFFIRM

LEE BooTHBY

(Counsel of Record)

JAMES. M. PARKER

Boorusy, ZIPRICK & YINGST

208 W. Mars Street

Berrien Springs, MI 49103

(616) 471-7787

MICHAEL T. TABOR

202 W. Baltimore

Jackson, TN 38301

Of Counsel (901) 424-3074

ALBERT P. BLAUSTEIN Ivy E. SCARBOROUGH

Rutgers University 203 E. Main Street

Law School Jackson, TN'38301

Camden, New Jersey 08012 (901) 423-0037

Counsel for Appellants

PRESS OF RAM PRINTING, HYATTSVILLE, MD 20781 (301) 864-6662

TABLE OF CONTENTS

I a ee vaiaa

PE aS re eee ee

I. THE CONSTITUTIONALITY OF DISCLOSURE

REQUIREMENTS IN REFERENDA Is Not SETTLED

Rie ee Rees Ee a ot LS walek wiglaitwe ada 0

II. A SuBSTANTIVE ISSUE PRESENTED IN THIS CASE

Is THE CONSTITUTIONALITY OF THE APPLICATION

To CHURCHES OF A CAMPAIGN DISCLOSURE LAW

Tuat Acts As A Prior RESTRAINT. ...........

Ill. WHETHER ACTUAL PROOF OF THE STATE’S

INTEREST Is NECESSARY Is A QUESTION OF SuB-

STANTIAL CONSTITUTIONAL MAGNITUDE. ......

Cs lig Bie Or, tn ua me

Co +]

cc i

ii

TABLE OF AUTHORITIES

Cases Page

American Civil Liberties Union v. Jennings, 366 F.Supp.

1041 (D. D.C. 1973), vacated as moot sub nom Staats

v. ACLU, 422 U.S. 1080 (1975) ....... 02. cceecees 5

Brown v. Hartlage, 456 U.S. 45 (1982) ............... 3

Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam). .... 2, 3, 4

Citizens Against Rent Control v. Berkeley, 454 U.S. 290

- COBBRK ov cksib nse a cd cwe eee 2,4

Commonwealth v. Dennis, 368 Mass. 92, 329 N.E.2d 706

4: | See ferry err Ce ey Oe 3

First National Bank of Boston v. Bellotti, 485 U.S. 765

tA ere PAbS ry hoy fe te ee 2,4

Heffron v. International Society for Krishna Consci-

oneness, 458 U.S. GOO CURBED) i iki icin cccsccdascss 4

Iowans for Tax Relief v. The CIT Finance Dis-

_ closure Commission, 331 N.W.2d 862 (lowa), appeal

dismissed, 464-U.S. 879 (1983). ............02000- 5, 6

Meese v. Kenne, ___._ U.S. ___.,, 107 S.Ct. 1862 (1987) . 6

Metromedia, Inc. v. San Diego, 453 U.S. 490 (1981).... 3,4

New Jersey Citizen Action v. Edison Township, 797 F.2d

1250 (3d Cir. 1986), cert. denied sub nom Piscataway

Township v. New Jersey Citizen Action, 107 S.Ct.

SE oss ocdcvencnncnisceaaeeeeenre 7

New York Civil Liberties Union v. Acito, 459 F.Supp. 75

Ge Be we MOE. cs kins 40440004 0n0o eee 5

United States v. National Committee for Impeachment,

SED Fe Se Ce Cle BTR nk oon s vc cccanccccccdas 5

CONSTITUTION:

United States Constitution Amendment One........ 1, 4,5

STATUTE:

Tennessee Campaign Financial Disclosure Act of 1980,

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1986

No. 87-317

BEMIS PENTECOSTAL, et al.,

Appellants,

V.

STATE OF TENNESSEE, et al.,

Appellees.

On Appeal From The Judgment Of The Supreme Court

Of The State Of Tennessee

APPELLANTS’ BRIEF IN RESPONSE TO

MOTION TO DISMISS OR AFFIRM

ARGUMENT

I. THE CONSTITUTIONALITY OF DISCLOSURE

REQUIREMENTS IN REFERENDA IS NOT SET-

TLED LAW.

The appellees’ motion to dismiss or affirm reveals the

very reasons that this Court should grant plenary review

of this case. Upon inspection, the appellees’ attempts to

show that the question of the constitutionality under the

First Amendment of campaign financial disclosure laws in

- :

referenda presented by this case is settled law ends up

emphasizing how unsettled and important the question is.

The appellees cook up a muddled stew to show that the

issue of the constitutionality of disclosure requirements in

referenda campaigns has been clearly decided by implica-

tion, an argument that seems self-contradicting. They

take selected facts from various cases to approximate the

situation in this case, add a dash of reasoning from one

case and generous helpings of dicta from others, and come

to the conclusion that this case presents no substantial

federal question. The appellees point to the disclosure

requirements in the stdtute upheld in Buckley v. Valeo,

424 U.S. 1(1976) (per curiam), and the fact that referenda

were at issue in first National Bank of Boston v. Bellotti,

435 U.S. 765 (1978), and Citizens Against Rent Control v.

City of Berkeley, 454 U.S. 290 (1981), and rely heavily on

brief dicta contained in Citizens Against Rent Control

and Bellotti. What they ignore is that the state interest

recognized in Buckley and which the appellees specifi-

cally relied on below has been limited by this Court to

candidate elections; that disclosure requirements were

not at issue in Citizens Against Rent Control and Bellotti;

and, that no compelling state interest was recognized in

Bellotti or Citizens Against Rent Control as justifying

any restriction on free speech in referenda.

In order to paper over some of the holes in their reason-

ing, the appellees now assert that the compelling state

interest primarily served by the Tennessee Campaign

Financial Disclosure Act of 1980 is informing the electo-

rate of how referendum campaigns are financed. In the

court below, the appellees repeatedly relied on the state

interest of preventing corruption recognized in Buckley.

They argued that even though there are no candidates to

corrupt in a referendum, the process itself could be cor-

3

rupted. Informing the public of how referendum cam-

paigns were financed was the chosen means to prevent

this corruption. Now the state has elevated this means to

a compelling interest in itself. Unfortunately for

appellees, this Court has never recognized a state interest

in informing the electorate as justifying restrictions on

free speech during campaigns. In fact, the Court has

specifically rejected as justification for campaign speech

restrictions the interest of maintaining an informed elec-

torate. Brown v. Hartlage, 456 U.S. 45 (1982), accord

Commonwealth v. Dennis, 329 N.E.2d 706 (Mass. 1975).

The fact, accurately pointed out by appellees, that the

restrictions in those cases were of a different nature than

the disclosure requirements here cannot by some reverse

reasoning establish that this interest will justify dis-

closure requirements.

Finally, and most importantly, the appellees ignore the:

fact that the statute at issue here contains more than what

appellees constantly characterize as “simple disclosure

requirements.” This statute operates as a prior restraint.

Even the passage from Buckley, 424 U.S. at 81-82, cited

by appellees in their motion (p. 11-12), recognizes that

systems of prior restraint are harder to justify than dis-

closure requirements.

Appellees have attempted to portray the issue in this

case as settled law by drawing parallels, analogies, and

conclusions that not only are unsupported by this Court’s

precedents but represent an improper method of constitu-

tional analysis.

Because regulation of the noncommunicative aspects

of a medium often impinges to some degree on the

communicative aspects, it has been necessary for the

courts to reconcile the government’s regulartory

interests with the individual’s right to expression.

4

“A] court may not escape the task of assessing the

First Amendment interest at stake and weighing it

against the public interest allegedly served by the

a, ” Linmark Associates, Inc. v.

Willingboro, 431 U.S. 85, 91 (1977), quoting Bigelow

v. Virginia, 421 U.S. 809, 826 (1975). Performance of

this task requires a particularized inquiry into the

nature of the conflicting interests at stake here,

beginning with a precise appraisal of the character of

the ordinance as it affects communication.

Metromedia, Inc. v. San Diego, 453 U.S. 490, 502-503

(1981) (opinion of White, J.). Therefore, this Court's deci-

sion in cases involving other statutes with other types of

restrictions cannot be relied upon as settling this case. It

should be noted that the decisions in Buckley, Bellotti,

and Citizens Against Rent Control, which the appellees

argue have clearly decided the issue in this case, are the

very decisions that the Tennessee Court of Appeals relied

on to reach the opposite conclusion. To determine

whether the burden on First Amendment rights imposed

by the Tennessee statute is constitutional, a precise

appraisal of the character of that ordinance, the interest

purportedly served, and its effect on free speech is

required.

II. ASUBSTANTIAL ISSUE PRESENTED IN THIS CASE

IS THE CONSTITUTIONALITY OF THE APPLICA-

TION TO CHURCHES OF A CAMPAIGN DIS-

CLOSURE LAW THAT ACTS AS A PRIOR

RESTRAINT.

The appellees also assert that the appellants have not

presented any substantial question regarding the applica-

tion of the Act to nonpolitical groups and churches in

particular. The main thrust of their argument is based on

Heffron v. International Society for Krishna Consci-

ousness, 452 U.S. 640 (1981), and the notion that some

5

principle of fairness requires applying the Act to all

organizations. This argument reverses the normal

requirement that the state must prove the necessity of a

broad application of an act restrictive of First Amend-

ment rights and places the burden on appellants to prove

an exemption is required. As stated in the appellants’

Jurisdictional Statement, broad application of campaign

registration and disclosure acts to nonpolitical groups has

been rejected by lower federal courts. New York Civil

Liberties Union v. Acito, 459 F.Supp. 75 (S.D. N.Y. 1978);

American Civil Liberties Union v. Jennings, 366 F.Supp.

1041 (D. D.C. 1973), vacated as moot sum nom Staats v.

ACLU, 422 U.S. 1030 (1975); United States v. National

Committee for Impeachment, 469 F.2d 1135 (2d Cir.

1972).

Appellees’ attempt to distinguish National Committee

for Impeachment and Jennings by saying that those deci-

sions turned on the nature of the statements made (i.e.,

whether or not they were outcome specific) rather than

the nature of the orgnizations making those statements, is

simply not an accurate characterization of those decisions.

| Appellees cite Jowans for Tax Relief v. The Campaign

Finance Disclosure Commission, 331 N.W.2d 862

(lowa), appeal dismissed, 464 U.S. 879 (1983), for the

proposition that this Court has already determined that

; application of campaign financial disclosure requirements

) to organizations not created for the support or defeat of

candidates or ballot issues présents no substantial federal

question. That case does not support such a proposition.

The Iowa law involved in that case limited the definition

of political committees to organizations “organized for the

purpose of accepting contributions, making expen-

ditures, or incurring indebtedness. . . for the purpose of

supporting or opposing a candidate for public office or

teem

6

ballot measure.” 331 N.W.2d at 864. The appellant in

Iowans for Tax Relief amended its articles of incorpora-

tion to show a corporate purpose of promoting the passage

of a particular ballot measure. Jd. at 865. It was this

articulated corporate purpose that brought the appellant

within the scope of the Act. Jd. at 866.

The issue presented in this case, application of the

Tennessee Act to churches, is significantly different, in a

constitutional sense, from application of the Lowa law toa

group whose primary function is lobbying and whose

corporate charter reflects a purpose to win passage of a

particular ballot measure. Further, the questions pre-

sented, as framed in the Jurisdictional Statement filed in

this Court, did not present the issue to this Court as it is

presented by this case. The only question presented in

Iowans for Tax Relief regarding the nature of the organi-

zations subject to the Iowa Act read as follows:

Whether the requirement that a nonpartisan organi-

zation of continuous existence file detailed reports

every 30 days following an election until the o -

tion is dissolved is an unconstitutional burden on

associational rights of permanent organizations?

(Jurisdictional Statement filed in Jowans for Tax Relief v.

The Campaign Finance Disclosure Committee, No.

83-101, at 4).

Appellees’ citation to Meese v. Kenne, __. U.S. —__.,

107 S.Ct. 1862 (1987), and the accompanying argument

trivializes the appellants’ objections to the Tennessee

Act. Their objections are not based upon the pejorative

connotations of the word “political.” Rather, they object

to registering with the state as a precondition to exercis-

ing their right to address moral and ethical issues in the

public forum. Further, to classify churches as political

campaign committee distorts their religious role in the

ee ae

7

eyes of those to whom they seek to minister. Such a state-

imposed restriction on appellants’ ministry has had the

effect of chilling their free exercise of religion and would

draw churches into entangling subservience to govern-

ment (Tr 15, 66-67; see also Exhibit 7; App. p. 57a).

Appellants’ objections are theologically based (Tr 42,

111), thus impacting on their First Amendment rights.

Ill. WHETHER ACTUAL PROOF OF THE STATE’S

INTEREST IS NECESSARY IS A QUESTION OF

SUBSTANTIAL CONSTITUTIONAL MAGNITUDE.

Appellees argue that appellants will become intermedi-

aries for funneling large contributions from those wishing

to avoid the Act (Motion to Dismiss or Affirm, p. 19) and

accuse the appellants of ignoring the conclusions of the

Tennessee Supreme Court regarding the justifictation for

the Act’s requirements (Motion to Dismiss or Affirm, p.

26). It is not that appellants ignore the Tennessee

Supreme Court’s conclusions, it is just that those con-

clusions are unsupported by the record, as is appellees’

argument that appellants act as some sort of intermedi-

aries. Appellees do not seem bothered by this lack of

record support. They end their motion by stating that

there is “no necessity of putting on proof” of the compell-

ing state interest asserted.

Once again, appellees misunderstand the nature of con-

stitutional litigation.

“In general, constitutional litigation demands fact

analysis of the most particularized kind.” Karsi, Leg-

islative Facts in Constitutional Litigation, 1960 Sup.

Ct. Rev. 75, 75. In the First Amendment area

especially, the Supreme Court has stressed the need

for “a particularized inquiry into the nature of the

interests at stake.” Metromedia, 453 U.S. at 503. It

is questionable whether “assumtions and widely-held

8

beliefs” have a role to play in such an analysis.

New Jersey Citizens Action v. Edison Township, 797 F.2d

1250 (3d Cir. 1986), cert. denied sub nom Piscataway

Township v. New Jersey Citizen Action, 107 S.Ct. 1336

(1987).

CONCLUSION

The issues presented by this case are substantial and

unsettled questions of federal constitutional law. They

affect the most fundamental constitutional rights of

appellants and should be decided after plenary review by

this Court.

LEE BOOTHBY

(Counsel of Record)

JAMES. M. PARKER .

BooTHBY, ZIPRICK & YINGST

208 W. Mars Street

Berrien Springs, MI 49103

(616) 471-7787

MICHAEL T. TABOR

202 W. Baltimore

Jackson, TN 38301

(901) 424-3074

Ivy E. SCARBOROUGH

203 E. Main Street

Jackson, TN 38301

(901) 423-0037

Counsel for Appellants

Of Counsel

ALBERT P. BLAUSTEIN

Rutgers University

Law School

Camden, New Jersey 08012