Amicus Curiae Brief — Florida Association of Professional Lobbyists, Inc. v. Division of Legislative Information (No. 09-154)

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No. 09-154 OFFICE OF THE CLERK

In The

Supreme Court of the United States

FLORIDA ASSOCIATION OF PROFESSIONAL

LOBBYISTS, INC., et al.,

Petitioners,

Vv.

DIVISION OF LEGISLATIVE INFORMATION

SERVICES OF THE FLORIDA OFFICE OF

LEGISLATIVE SERVICES, et al.,

Respondents.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Eleventh Circuit

BRIEF OF THE FOUNDATION FOR FREE

EXPRESSION AS AMICUS CURIAE

SUPPORTING PETITIONERS

DEBORAH J. DEWART JAMES L. HIRSEN

620 E. SABISTON DRIVE Counsel of Record

Swanssporo, NC 28584 505 S. VILLA REAL DRIVE

(910) 326-4554 Suite 208

debcpalaw@earthlink. net ANAHEIM HILLs, CA 92807

(714) 283-8880

hirsen@earthlink.net

| Counsel for Amicus Curiae

September 4, 2009

Becker Gallagher - Cincinnati, OH - Washington, D.C. + 800.890.5001

i

TABLE OF CONTENTS

Sop ge eae are ae

INTRODUCTION AND SUMMARY OF THE

lg ty ears a das & a kw 8 8 1

I. THIS COURT SHOULD GRANT REVIEW TO

HALT TWO TROUBLING TRENDS:

EXPANDING REGULATION OF PROTECTED

POLITICAL SPEECH AND JUDICIAL

REDRAFTING TO SALVAGE STATUTES

THAT ARE OVERLY BROAD OR VAGUE.... 3

A. Legislatures Have Vastly Expanded

Disclosure Requirements And Other

Regulations That Burden Even Indirect

py eee 4

B. Courts Sometimes Engage In Extensive

Rewriting In Order To Salvage Laws That

Burden Indirect Political Speech. ........ 6

ft. THIS COURT SHOULD GRANT REVIEW TO

CLARIFY THE STANDAKi APPLICABLE TO

DISCLOSURE REQUIREMENTS FOR CORE

gi Pe a A, +. ARs er anes a aera 8

A. Disclosure Requirements Should ' Be

Subjected To Exacting Scrutiny And Struck

Down Because The Governmental Interest

In “Self-Protection” Is Not Compelling. ... 10

B. Florida’s Burdensome _ Disclosure

Requirements Leave People To Speak At

Their Own Peril, Risking Retaliation And

i

Gambling On A Favorable Court Ruling In A

Later “As Applied” Challenge. .......... 13

Il. THIS COURT SHOULD GRANT REVIEW TO

SAFEGUARD THE FIRST AMENDMENT

RIGHTS TO PETITION THE GOVERNMENT

AND TO FREELY ASSOCIATE WITH

OTHERS. . .. 5 xaiciee sane Rie sw So 16

A. The Right To Grassroots Lobbying Is

Rooted In The Right To Petition The

Govermmei. 65 Orr a eee ec eee 17

B. The First Amendment Protects The Right To

Associate With Others And Pool Resources

For "Aore Effective Communication. ..... 20

CONCLUSION | os ee eee vances 22

ill

TABLE OF AUTHORITIES

Cases

Abrams v. United States,

OE a rae 12

ACLU of Nev. v. Heller,

378 F.3d 979 (Oth Cir. 2004) .............. 15

AAPS et. al. v. Executive Office of the President,

Civil Action No. 09-1621-EGS, (D.D.C. filed

Aug. 26, 2009, available at

http://www.aapsonline.org/aaps-eop-

SEE ese ne a eae a te bce 2

Austin v. Michigan Chamber of Commerce,

494 U.S. 652 (1990) ............ it, 32, 36, Zz.

Broadrick v. Oklahoma,

er es I gv 5c cpvekovieoswcdencs 10

Brown v. Socialist Workers ‘74 Campaign Comm.

(Comin), GOW US. ST CIBGS) oc cece eee 11

Buckley v. Valeo,

| ote 8 C7}, <i aa aa ae aa aarae 11

California Bankers Assn. v. Schultz,

re sf 6365 oo ae eee 11

Cantu«ll v. Connecticut,

A Ure EN gow cc sce hrs ees seeds 15

lv

Canyon Ferry Baptist Church v. Unsworth,

§56 F.3d 1021 (9th Cir. 2009) ........... 5, 14

Citizens United v. Fed. Electicn Comm’n,

No. 08-205 (U.S. filed Aug. 14, 2008) ........ 4

Communist Party v. Subversive Activities Control

Be POE AE CRE No he oe ee ee ees 13

Davis v. FEC,

ee ee rs ED io: 6 se we ee es 11

Eastern Railroad Presidents Conference v. Noerr

Motor Freight, Inc.,

Do os ooo ic eA eo eas 18

Fed. Election Comm’n v. Wisc. Right to Life, Inc.,

Sat A Be OE) og oe vk ecw wis 3,9, 15

First Nat'l Bank of Boston v. Bellotti,

A el Se re ner 15

Fla. Association of Profl Lobbyists, Inc. v. Division

of Legislative Information Services,

525 F.3d 1073 (11th Cir. 2008) ......... 11,12

Fla. League of Profl Lobbyists, Inc. v. Meggs,

87 F.3d 457 (lith Cir.1996).......... 9,10, 12

Grosjean v. American Press Co., Inc.,

Me Re, OD ss os vc oss ae eee ous 21

Hague v. CIO,

eee a | rn nea 18

McConnell v. FEC,

UD we ce we eee 3, 20, 21

McIntyre v. Ohio Elections Commission,

oo Bik ee. | ne 12,15

Meyer v. Grant,

Bk ES eee 21

Minnesota Citizens Concerned for Life, Inc. v.

Kelley, 427 F.3d 1106 (8th Cir. 2005) ..... 7,14

Minneapolis Star & Tribune Co. v. Minnesota

Comm’r of Revenue,

RN) 2s, | a 21

Minnesota State Ethical Practices v. Nat'l Rifle

Ass’n, 761 F.2d 509 (8th Cir. 1985), cert. denied,

474 U.S. 1082 (1986) ............ 5, 12, 14, 22

Morse v. Frederick,

Ce Ee TT gcc ce ccc ee we te ekawnen 15

NAACP v. Alabama,

ee ee ED gw ce vos web ele eas ews 14

NAACP v. Button,

ee SE 5 we eee cece seeeen 14, 15

North Carolina Right to Life, Inc. v. Bartlett,

168 F.3¢6 705 (4th Cir. 1999) ............ 8, 14

North Carolina Right To Life, Inc. v. Leake,

525 F.3d 274 (4th Cir. 2008) ............ 8, 14

vi

Thomas v. Collins,

ee OD once ct eco cwecewes 8,9, 16

United Mine Workers v. Pennington,

a re 19

United States v. Carolene Products Co.,

Re | ar 10

United States v. Cruikshank,

I I te tect eeeeneve 18

United States v. Harriss,

A OO” ) a passim

United States v. Rumely,

kee eee uw ews 6, 14

Virginia v. Hicks,

fet Wee re 10, 15

Statutes

Se ee ree 11

OT EB 9 |. Sa re 1]

RT, cy eee eeaeevedeveees 6

re eas wn wae eee 6

Other Authorities

Maskell, Jack, Grassroots Lobbying:

Constitutionality of Disclosure Requirement,

(Cong. Research Serv. Jan. 12, 2007), available

Vil

at http://www.aapsonline.org/aaps-eop-

complaint.pdf

1

INTEREST OF AMICI’

The Foundation for Free Expression (“FFE”), as

amicus curiae, respectfully submits that the Petition

for Writ of Certiorari should be granted.

FFE is a California non-profit, tax-exempt

corporation formed on September 24, 1998 to preserve

and defend the constitutional liberties guaranteed to

American citizens, through education and other

means. FFE’s founder is James L. Hirsen, professor of

law at Trinity Law School (15 years) and Biola

University (7 years) in Southern California and author

of New York Times bestseller, Tales from the Left

Coast: True Stories of Hollywood Stars and Their

Outrageous Politics, and Hollywood Nation: Left Coast

Lies, Old Media Spin, and the Revolution. Mr. Hirsen

has taught law school courses on constitutional law.

INTRODUCTION AND SUMMARY

OF THE ARGUMENT

Americans have a vital interest in safeguarding

their cherished, time-honored rights to associate and

petition the government for redress of grievances

without fear of retaliation or prosecution. A

representative form of government stands on the

ability of citizens to communicate effectively with their

' Counsel of record for all parties have consented to the filing of

this brief and have received notice at least ten (10) days prior to

the due date of amicus curiae's intention to file this brief. Amicus

curiae certifies that no counsel for a party authored this brief in

whole or in part and no person or entity, other than amicus, its

members, or its counsel, has made a monetary contribution to its

preparation or submission.

2

elected legislators who will vote on _ legislation

concerning the issues that impact their lives.

Recent headlines exemplify the importance of

preserving these rights. The federal government has

proposed major health care reform. Citizens across the

cecuntry have organized to voice their opinions and

concerns on both sides of the issue. People gather to

talk and they disseminate information over the

internet. But in early August 2009, the White House

began to solicit reports to an e-mail address,

flag@whitehouse.gov, in order to collect data about

allegedly “fishy” information on the web. Because of

grave concerns about the First Amendment and the

Privacy Act, the Association of American Physicians &

Surgeons, Inc. and the Coalition for Urban Renewal &

Education recently joined forces to file suit against the

Obama Administration in the U.S. District Court for

the District of Columbia. AAPS et. al. v. Executive

Office of the President, Civil Action No. 09-1621-EGS,

(D.D.C. filed Aug. 26, 2009), available at

http://www.aapsonline.org/aaps-eop-complaint.pdf.

Health care is a vitally important issue to every

American. If “the people” cannot discuss their

questions and voice their opinions to one another and

their representatives--without fear of being “reported”

to the federal government--the First Amendment is in

dire straits.

This newly filed federal case poses issues similar to

those raised in the Petition. Speech is chilled when

people are compelled to make disclosures, whether

they are “reported” to a White House e-mail address or

required to register with the state and make extensive

disclosures of financial transactions and personal data.

Both situations implicate the right to associate and

3

speak freely with elected officials concerning pending

legislation.

I. THIS COURT SHOULD GRANT REVIEW TO

HALT TWO TROUBLING TRENDS:

EXPANDING REGULATION OF PROTECTED

POLITICAL SPEECH AND JUDICIAL

REDRAFTING TO SALVAGE STATUTES

THAT ARE OVERLY BROAD OR VAGUE.

The troubling McConnell ruling upset considerable

precedent by blurring the line between express

advocacy and issue advocacy, calling it a “line in the

sand drawn on a windy day.” McConnell v. FEC, 540

U.S. 93, 126, n. 16 (2003). The McConnell Court went

so far as to deny that there is any constitutional right

to engage in issue advocacy. I/d. at 192-193. This

decision addressed political candidates but its

implications spill over into the lobbying arena, where

a line is needed to distinguish direct contacts with

legislators from the myriad of other activities where

ordinary citizens communicate their views about the

issues that form the subject matter of legislation.

Issue advocacy conveys information and educates.

That information may focus on a legislative issue, take

a position, and urge others to contact public officials.

Fed. Election Comm’n v. Wisc. Right to Life, Inc., 127

S.Ct. 2652, 2667 (2007). Nevertheless, McConnell

escalated the troubling trend toward increased

regulation of political speech generally--including pure

issue advocacy.

4

A. Legislatures Have Vastly Expanded

Disclosure Requirements And Other

Regulations That Burden Even Indirect

Political Activities.

Government regulations cast an ever wider net over

political speech, encompassing independent

expenditures and indirect attempts to influence

legislation that pose no significant threat of corruption

and serve no compelling government interest. The

pending Citizens United case concerns core political

speech about candidates. Citizens United v. Fed.

Elections Comm’n, No. 08-205 (U.S. filed Aug. 14,

2008). This new petition concerns speech to those

candidates, once elected, about the important public

issues they will address when they vote on legislation.

This Court should address both aspects of political

speech to guard the First Amendment rights of

American citizens. In a representative government,

the people must be able to communicate freely with

those they have elected to represent them as well as

other members of the public who share similar

concerns.

The first issue set forth in the Petition shows the

breadth of the problem. Disclosures are mandated

even for “opinion articles, issue advertisements, and

letter writing campaigns”--ordinary components of free

speech that do not necessarily involve any direct

contact with legislators. What if an attorney is

retained to draft an academic article or “white paper”

supporting a position relevant to pending legislation?

This could be deemed an “opinion article” subject to

disclosure. Even letter writing campaigns generated

within the boundaries of a voluntary association have

been captured by overreaching’ disclosure

5

requirements, trampling classic First Amendment

rights of speech and association. Minnesota State

Ethical Practices v. Nat'l Rifle Ass'n, 761 F.2d 509 (8th

Cir. 1985), cert. denied, 474 U.S. 1082 (1986).

A Ninth Circuit case earlier this year illustrates the

chilling impact of imposing disclosure regulations on

grassroots lobbying. Canyon Ferry Baptist Church v.

Unsworth, 556 F.3d 1021 (9th Cir. 2009). A small

church was classified an “incidental political

committee” under Montana law, subject to extensive

disclosures. A church member used her own paper to

make less than fifty copies on the church's copier of a

petition to collect signatures to place a proposed

constitutional amendment on the ballot in November.

The church also broadcast a film, “Battle for

Marriage,” in connection with its regular Sunday

evening service. The service was open to the public,

and five radio stations aired public service

announcements about the film without charge to the

church. The church also photocopied and distributed

fliers about the film, using bulletin inserts and its

lobby. The petition was circulated among church

attendees one Sunday to collect signatures. There was

no express advocacy for any political candidate--only

classic issue advocacy on a matter of serious concern to

the church and its members. The Ninth Circuit held

that the church’s First Amendment rights had been

violated. Jd. at 1028. This case demonstrates both the

stifling effect of disclosure laws and the trend toward

increasingly burdensome regulation of ordinary

political speech. [fthe nominal, one-time expenditures

of a small church can trigger extensive disclosure

requirements and require litigation in federal court,

the First Amendment is in trouble.

6

B. Courts Sometimes Engage In Extensive

Rewriting In Order To Salvage Laws That

Burden Indirect Political Speech.

There is an equally troubling trend in the courts to

facially uphold regulations that burden independent

political expenditures or indirect lobbying activities.

But often they can only do that through a cut-and-

paste job, extensively revising the statutory language

and creating uncertainty for future litigants.

The trend dates back many decades. In Rumely,

this Court wisely concluded that the Regulation of

Lobbying Act could not compel the secretary of the

Committee for Constitutional Government (CCG) to

disclose to a congressional committee the names of

those who made bulk purchases of its books for further

distribution. The CCG distributed printed material in

order to indirectly influence legislation. United States

v. Rumely, 345 U.S. 51 (1953). In order to reach its

conclusion, this Court construed the phrase “lobbying

activities” to mean “representations made directly to

the Congress, its members, or its committees,”

excluding attempts “to saturate the thinking of the

, community.” Id. at 47. But the Act expressly applied

to all persons soliciting or receiving money to be used

principally “to influence, directly or indirectly, the

passage or defeat of any legislation by the Congress of

the United States.” 2 U. S. C. § 266 (b). ZId. at 54

(emphasis added). The Court rewrote the statute in

order to save it.

Similar revisions occurred the next year in United

States v. Harriss, 347 U.S. 612 (1954). The Court

restricted the reach of the Federal Regulation of

Lobbying Act, 2 U.S.C.S. §§ 261-270, to direct

7

communications with members of Congress. But as

Justice Douglas pointed out in his dissent, words had

to be “added and subtracted” from the Act “to produce

that result” because it was specifically applicable to

funds solicited, collected, or received “to influence,

directly or indirectly, the passage or defeat of any

legislation” by Congress. Id. at 629 (Douglas, J.,

dissenting) (emphasis added).

The words “direct communication with

Congress” are not in the Act. Congress was

concerned with the raising of money to aid in

the passage or defeat of legislation, whatever

tactics were used. But the Court not only strikes

out one whole group of activities -- to influence

“indirectly” -- but substitutes a new concept for

the remaining group -- to influence “directly.” To

influence “directly” the passage or defeat of

legislation includes any number of methods --

for example, nationwide radio, television or

advertising programs promoting a particular

measure, as well as the “buttonholing” of

Congressmen. To include the latter while

excluding the former is to rewrite the Act.

Id. at 631 (Douglas, J., dissenting) (emphasis

added)

Not all courts have followed the revisionist tactics

of Rumely and Harriss. For example, the Eighth

Circuit declined to rewrite a disclosure statute it found

“easy to understand,” in spite of its burden on pure

issue advocacy. Minnesota Citizens Concerned for Life,

Inc. v. Kelley, 427 F.3d 1106 (8th Cir. 2005). The

Fourth Circuit invalidated a_ statute imposing

intrusive reporting requirements on pure’ issue

8

advocacy--refusing to rewrite it by striking a portion of

the statutory “political committee” definition. North

Carolina Right to Life, Inc. v. Bartlett, 168 F.3d 705

(4th Cir. 1999). More recently, the Fourth Circuit

again struck down burdensome _ reporting

requirements for the same issue advocacy group.

North Carolina Right To Life, Inc. v. Leake, 525 F.3d

274 (4th Cir. 2008).

Legislatures and courts both need guidance from

this Court in order to return clarity and simplicity to

the First Amendment. The current state of affairs

“blankets with uncertainty” the entire field of

campaign politics, “compelling the speaker to hedge

and trim.” North Carolina Right to Life, Inc. v.

Bartlett, supra, 168 F.3d at 713, citing Thomas uv.

Collins, 323 U.S. 516, 535 (1944).

Il. THIS COURT SHOULD GRANT REVIEW TO

CLARIFY THE STANDARD APPLICABLE TO

DISCLOSURE REQUIREMENTS FOR CORE

POLITICAL SPEECH.

This Court has long recognized the high hurdle that

legislators must jump to burden First Arnendment

liberties. Any such attempt at restriction:

..must be justified by clear public interest,

threatened not doubtfully or remotely, but by

clear and present danger. The rational

connection between the remedy provided and

the evil to be curbed, which in other contexts

might support legislation against attack on due

process grounds, will not suffice. These rights

rest on firmer foundation. Accordingly,

whatever occasion would restrain orderly

9

discussion and persuasion, at appropriate time

and place, must have clear support in public

danger, actual or impending. Only the gravest

abuses, endangering paramount interests, give

occasion for permissible limitation.

Thomas v. Collins, supra, 323 U.S. at 530

Moreover, in drawing lines between regulable and

protected expression, courts must err on the side of

protecting speech rather than suppressing it. Fed.

Election Coinm’n v. Wisc. Right to Life, Inc. supra, 1277

S.Ct. at 2559.

But the bar has been lowered and clarification is

badly needed. In order to justify restrictions on

indirect lobbying, the Eleventh Circuit relied heavily

on one of its own earlier decisions that expressed

uncertainty about this Court’s standards:

Some disagreement has appeared lately among

members of the Supreme Court on exactly how

high the threshold for facial invalidation should

be set. As we understand it, some Justicez

interpret Supreme Court precedent to indicate

that a statute is not facially invalid unless there

is no set of circumstances in which it would

operate constitutionally; others contend the

cases require only that a statute would operate

unconstitutionally in most cases.

Fla. League of Profl Lobbyists, Inc. v. Meggs, 87

F.3d 457, 459 (11th Cir.1996)

The Meggs ruling also declared that Harriss failed to

apply strict scrutiny to lobbying restrictions--but found

10

the government had “sufficient” interests. Jd. at 460.

This confusion in the Eleventh Circuit clashes with

established standards of this Court. A law that

burdens speech should be invalidated if it “punishes a

‘substantial’ amount of protected free speech, ‘judged

in relation to the statute’s plainly legitimate sweep.”

Virginia v. Hicks, 539 U.S. 113, 119-120 (2003), citing

Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973).

A. Disclosure Requirements Should Be

Subjected To Exacting Scrutiny And

Struck L >wn Because The Governmental

Interest In “Self-Protection” Is Not

Compelling.

Where _iegisilation facially burdens _ First

Amendment rights, the normal presumption of

constitutionality should operate within a much

narrower scope. United States v. Carolene Products

Co., 304 U.S. 144, 152, n. 4 (1938). A rat.onal basis is

inadequate to justify such burdens. Although

Carolene Products did not expressly address the level

of scrutiny required for “legislation which restricts

those political processes which can ordinarily be

expected to bring about repeal of undesirable

legislation,” it did enumerate other constitutional

rights and case citations suggesting that exacting

scrutiny would most likely be appropriate. Jd. at 152,

n. 4. Even the Eleventh Circuit has admitted that

facial challenges are more likely to succeed where

First Amendment rights are implicated. Fla. League

of Profl Lobbyists, Inc. v. Meggs, supra, 87 F.3d at 459,

n. 2.

In spite of the uncertainty that Meggs alleged

concerning this Court’s threshold for facial challenges,

1]

there has been repeated affirmation that compelled

disclosures can create significant encroachments on

First Amendment rights and must therefore survive

exacting scrutiny. Buckley v. Valeo, 424 U.S. 1, 64, 68

(1976); Davis v. FEC, 128 S. Ct. 2759, 2774-2775

(2008). The invasion of privacy is substantial where

financial data is required, because “financial

transactions can reveal much about a_person’s

activities, associations, and beliefs.” Buckley v. Valeo,

supra, 424 U.S. at 66, citing California Banke s Assn.

v. Schultz, 416 U.S. 21, 78-79 (1974) (Powell, J.,

concurring). Compelled disclosures of political

associations and beliefs, similarly, “can seriously

infringe on privacy of association and _ belief

guaranteed by the First Amendment.” Brown uv.

Socialist Workers ‘74 Campaign Comm. (Ohio), 459

U.S. 87, 91 (1982), citing Buckley v. Valeo, supra, 424

U.S. at 64. The Florida statutes (§§ 11.045 and

112.3215) require extensive disclosures concerning

both lobbyists and the speakers they represent--

disclosures about financial transactions as well as

political associations and beliefs. Exacting scrutiny is

desperately needed.

When the government abridges fundamental

liberties, it is always with the noblest of objectives--

“dictators promise to bring order, not tyranny” and

“zealous policemen conduct unlawful searches in order

to put dangerous felons behind bars.” Austin v.

Michigan Chamber of Commerce, 494 U.S. 652, 692

(1990) (Scalia, J., dissenting). Lobbying restrictions

are no exception.

The Eleventh Circuit asserted that legislators have

a compelling interest in_ self-protection. Fila.

Association of Profl Lobbyists, Inc. v. Division of

12

Legislative Information Services, 525 F.3d 1073, 1080

(lith Cir. 2008). Harriss, similarly, defended the

Lobbying Act as a means for elected representatives to

evaluate the pressures on them so that “special

interest groups masquerading as proponents of the

public weal” would not drown out the voice of the

people. United States v. Harriss, supra, 347 U.S. at

625. That seemingly honorable goal was echoed thirty

years later in Minnesota State Ethical Practices v.

Nat'l Rifle Ass’n, supra, 761 F.2d 509. Meggs went so

far as to proclaim that the governmental interests are

even more compelling for indirect lobbying where the

sources are more difficult to identity. Fla. League of

Profl Lobbyists, Inc. v. Meggs, supra, 87 F.3d at 461.

The Eleventh Circuit reiterated that questionable

conclusion in the current case. Fla. Association of

Profl Lobbyists, Inc. v. Division of Legislative

Information Services, supra, 525 F.3d at 1080.

But this Court credits the people of America’s

democracy with intelligence. There is “no such thing

as too much speech” because “the people are not foolish

but intelligent, and will separate the wheat from the

_ chaff.” Austin v. Michigan Chamber of Commerce,

supra, 494 U.S. at 695 (Scalia, J., dissenting). The

people are able to evaluate conflicting arguments. Id.

at 706 (Kennedy, J., dissenting). They can even

evaluate anonymous campaign literatu .. McIntyre v.

Ohio Elections Commission, 514 U.S. 334, 349, n. 11

(1985). That is because “the best test of truth is the

power of the thought to get itself accepted in the

competition of the market.” Jd. at 349, n. 11, citing

Abrams v. United States, 250 U.S. 616, 630 (1919).

Surely, if the common, ordinary people of America

have such intelligence, the professional politicians

elected to public office to represent them also possess

13

the ability to evaluate arguments and separate truth

from fiction--regardless of the speaker's identity or the

funds spent to package and disseminate the message.

Only the most compelling of government interests

can justify a severe intrusion »n the ability of the

people to communicate with their representatives,

including the freedom to associate and hire assistance.

Years ago, this Court upheld the requirement that the

Communist Party of the United States register under

the Subversive Activities Control Act, because the

goverment was “menaced by a world-wide integrated

movement which employs every combination of

possible means, peaceful and violent, domestic and

foreign, overt and clandestine, to destroy the

government itself.” Communist Party v. Subversive

Activities Control Bd., 367 U.S. 1, 96 (1961). Unlike

the Florida lobbying restrictions, the grave danger

posed here is a truly compelling interest that justifies

requiring disclosures.

B. Florida’s Burdensome _ Disclosure

Requirements Leave People To Speak At

Their Own Peril, Risking Retaliation And

Gambling On A Favorable Court Ruling In

A Later “As Applied” Challenge.

The far-reaching Florida disclosure provisions place

the people and their agents in an untenable position.

Either they must reveal sensitive information and risk

danger to themselves, their employees, and/or their

families--particularly if pending legislation is

controversial--or ignore the law and hope for a

successful court decision in the future. In America

today, there are numerous “hot button” issues. Some

of the cases cited in the Petitien involve pro-life

14

groups: Minnesota Citizens Concerned for Life, Inc. v.

Kelley, 427 F.3d 1106 (8th Cir. 2005); North Carolina

Right to Life, Inc. v. Bartlett, supra, 168 F.3d 705;

North Carolina Right To Life, Inc. v. Leake, supra, 525

F.3d 274. One case involves gun rights: Minnesota

State Ethical Practices v. Nat'l Rifle Ass’n, supra, 761

F.2d 509. Cases in past decades have involved heated

civil rights topics: NAACP v. Alabama, 357 U.S. 449

(1958); NAACP v. Button, 371 U.S. 415 (1963). The

recent Ninth Circuit case des.ribed in Section I

involved the battle over defining marriage: Canyon

Ferry Baptist Church v. Unsworth, supra, 556 F.3d

1021. Passions become inflamed on both sides of such

pressing public issues, and mandatory disclosures

create unnecessary risks that stifle communication

with elected representatives.

Harris minimized the dangers associated with

lobbying restrictions, dismissing concerns as

“hypothetical borderline situations...conjured up in

which such persons choose to remain silent because of

fear of possible prosecution” and calling the restraint

“at most an indirect one resulting from self-

censorship.” United States v. Harriss, supra, 347 U.S.

at 626. But only a year earlier, a concurring Justice of

this Court recognized the severe restraint associated

with compelling a publisher to register with the

government and disclose the identities of persons who

purchased his be: ks and other papers. United States

v. Rumely, supra, 345 U.S. at 57 (Douglas, J.,

concurring).

“Self-censorship” is no minor concern. It has the

earmarks of a prior restraint on speech that the First

Amendment cannot tolerate. The Constitution

safeguards “at the least the liberty to discuss publicly

15

and truthfully all matters of public concern without

previous restraint or fear of subsequent punishment.”

First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 775

(1978) (emphasis added). This Court has

acknowledged the severe burden and chilling effect of

forcing a speaker to risk prosecution--or rely on the

vicissitudes of case-by-case litigation--to engage in

protected political speech. Fed. Election Comm’n v.

Wisc. Right to Life, Inc., supra, 127 S.Ct. at 2681;

Virginia v. Hicks, supra, 539 U.S. at 119. If

disclosures truly serve a compelling government

interest, it is imperative that they be “narrowly drawn

to prevent the supposed evil”--and no more. Cantwell

v. Connecticut, 310 U.S. 296, 307 (1940).

Selective enforcement against unpopular causes is

a real danger where statutes burdening the First

Amendment are not narrowly tailored. Morse uv.

Frederick, 551 U.S. 393, 423 (2007) (Alito, J.,

concurring) (it would dangerous to allow public school

officials to censor any student speech that interferes

with the school’s “educational mission”). “A statute

broadly curtailing group activity leading to litigation

may easily become a weapon of oppression, however

even-handed its terms appear.” NAACP v. Button,

supra, 371 U.S. at 435-436. This is equally true of a

statute that deters associations and speech for the

purpose of influencing legislation. The First

Amendment was designed “to protect unpopular

individuals from retaliation--and their ideas from

suppression--at the hand of an intolerant society.”

McIntyre v. Ohio Elections Commission, supra, 514

U.S. at 357. Throughout history, persecuted groups

have sometimes had to conceal their identities in order

to criticize oppressive practices. ACLU of Nev. uv.

Heller, 378 F.3d 979, 981 (9th Cir. 2004) (striking

16

down statute requiring certain groups or entities

publishing any material or information relating to

election, candidate, or any question on ballot to reveal

publication names). Moreover, both the people and

their elected representatives are entitled to have

access to protected speech that might be suppressed if

it were subject to onerous disclosures.

Wt. THIS COURT SHOULD GRANT REVIEW

TO SAFEGUARD THE FIRST

AMENDMENT RIGHTS TO PETITION THE

GOVERNMENT AND TO FREELY

ASSOCIATE WITH OTHERS.

The First Amendment guarantees an inseparable

cluster of rights to free speech, press, association,

assembly, and petition for redress of grievances.

These are not identical but are closely related and thus

“coupled in a single guaranty.” Thomas v. Collins,

supra, 323 U.S. at 530. The Florida disclosure

requirements for lobbying activities implicate all of

these rights, but particularly burden the rights of

petition and association. “The government cannot be

trusted to assure, through censorship, the ‘fairness’ of

political debate.” Austin v. Michigan Chamber of

Commerce, supra, 494 U.S. at 679-680 (Scalia, J.,

dissenting). That central truth of the First

Amendment applies to restrictions on the ability of the

people to associate and communicate with their elected

representatives.

17

A. The Right To Grassroots Lobbying Is

Rooted In The Right To Petition The

Government.

The right to petition the government parallels

lobbying activities. Justice Jackson’s dissenting

opinion in Harriss recognizes this connection:

The First Amendment forbids Congress to

abridge the right of the people “to petition the

Government for a redress of grievances.” If this

right is to have an interpretation consistent

with that given to other First Amendment

rights, it confers a large immunity upon

activities of persons, organizations, groups and

classes to obtain what they think is due them

from government. Of course, their conflicting

claims and propaganda are confusing, annoying

and at times, no doubt, deceiving and

corrupting. But we may not forget that our

constitutional system is to allow the greatest

freedom of access to Congress, so that the

people may press for their selfish interests, with

Congress acting as arbiter of their demands and

conflicts.

United States v. Harriss, supra, 347 U.S. at 635

(Jackson, J., dissenting)

Justice Jackson would have left rewriting of the

Lobbying Act to Congress in light of the “delicate and

difficult task” of regulating professional lobbying

without abridging the constitutional right of petition.

Id. at 636 (Jackson, J., dissenting).

18

The right to petition government may not be the

subject of many modern cases, but it has ancient roots

pre-dating the Constitution, which did not create the

right but merely safeguards it against government

infringement. Hague v. CIO, 307 U.S. 496, 512 (1939).

More than a century ago, this Court affirmed it as an

essential attribute of citizenship “found wherever

civilization exists.” United States v. Cruikshank, 92

U.S. 542, 551 (1876).

The very idea of a government, republican in

form, implies a right on the part of its citizens

to meet peaceably for consultation in respect to

public affairs and to petition for a redress of

grievances.

Id. at 552.

Citizenship in the United States, with its

representative system of government, would have little

value if it did not embrace the right to discuss

legislation and communicate with lawmakers. Hague

v. CIO, supra, 307 U.S. at 513. “{[T]he whole concept of

representation depends upon the ability of the people

to make their wishes known to their representatives.”

Eastern Railroad Presidents Conference v. Noerr Motor

Freight, Inc., 365 U.S. 127, 1387 (1961).

Two cases in this Court in the 1960s examined the

right to petition in the context of the Sherman

Antitrust Act. In Noerr, the complaint alleged that the

railroads had used a publicity campaign to restrain

trade and monopolize certain freight business. The

campaign encouraged the adoption of new laws and

law enforcement practices that would harm the

trucking business. This Court ruled that the Sherman

19

Act could not be used to prohibit an association of

persons to attempt to influence legislation, even

though the proposed new law might produce a

monopoly or restrain trade. Eastern Railroad

Presidents Conference v. Noerr Motor Freight, Inc.,

supra, 365 U.S. at 136. The Act could not be stretched

so as to regulate political activity and encroach on the

freedom of petition--it could only regulate business

activity. Jd. at 137-138. In a similar case a few years

later, tiis Court said that:

Joint efforts to influence public officials do not

violate the antitrust laws even though intended

to eliminate competition. Such conduct is not

illegal, either standing alone or as part of a

broader scheme itself violative of the Sherman

Act.

United Mine Workers v. Pennington, 381 U.S.

657, 670 (1965)

Moreover, this Court found the right to petition

broad enough to include the distribution of propaganda

by third parties in a manner that appears to be the

expression of views by independent persons and

groups. Eastern Railroad Presidents Conference v.

Noerr Motor Freight, Inc., supra, 365 U.S. at 140-142.

This third-party technique is comparable to the

artificially stimulated letter campaigns that Harriss

swept within the definition of direct lobbying. United

States v. Harriss, supra, 347 U.S. at 620.

Communication between the people and their

legislators is vital to both of them. Lawmakers are

deprived of a valuable source of information if the

people’s speech is stifled. The people have a

20

corresponding right to communicate with those they

have elected to represent them and vote on their

behalf.

B. The First Amendment Protects The Right

To Associate With Others And Pool

Resources For More Effective

Communication.

In modern America, association is imperative to

facilitate effective lines of communication between

citizens and their representatives. Individuals can

write letters or make phone calls, but a lone voice is

more likely to be drowned out than a well-organized

effort by people who share common concerns and unite

to express their opinions.

But such efforts inevitably require the assistance of

others and a corresponding financial outlay:

In any economy operated on even the most

rudimentary principles of division of labor,

effective public communication requires the

speaker to make use of the services of others....

Division of labor requires a means of mediating

exchange, and in a commercial society, that

means is supplied by money.

McConnell v. FEC, supra, 540 U.S. at 251, 252

(Scalia, J., dissenting)

The right to spend money and to pool financial

resources 1s crucial to effective free speech in modern

America. Id. at 252 (Scalia, J., dissenting). This Court

recognized that reality when it held that the First

21

Amendment encompasses the right to use paid petition

circulators. Meyer v. Grant, 486 U.S. 414 (1988).

The government regulates money in many

legitimate ways. There are laws requiring payment of

income and other taxes, laws prohibiting bribery, laws

against prostitution. However, the Florida lobbying

statutes target money used for speech, and that is

improper:

[W]here the government singles out money used

to fund speech as its legislative object, it is

acting against speech as such, no less than if it

had targeted the paper on which a book was

printed or the trucks that deliver it to the

bookstore.

McConnell v. FEC, supra, 540 U.S. at 252

(Scalia, J., dissenting)

In line with that principle, this Court has consistently

rejected attempts to selectively tax the press. A state

cannot impose a special use tax on the ink and paper

used for publications. Minneapolis Star & Tribune Co.

v. Minnesota Comm’r of Revenue, 460 U.S. 575 (1983).

A taxon newspaper advertisements, similarly, violates

the First Amendment. Grosjean v. American Press

Co., Inc., 297 U.S. 233 (1936).

The lobbyist petitioners in this case utilize many

techniques that invoke association rights, including

the organization of rallies and demonstrations,

communications with association members, and other

strategies. Petition, 7. Minnesota regulations upheld

in the Eighth Circuit severely chilled communications

between the members of a voluntary association by

22

imposing burdensome disclosures. Minnesota State

Ethical Practices v. Nat'l Rifle Ass’n, supra, 761 F.2d

509. That case involved the common technique of

stimulating a letter-writing campaign to influence

legislation on a matter of shared concern among

association members. While that method is

disparaging!y referred to as an “artificially stimulated”

campaign, individual speakers are not compelled to

participate but merely encouraged and provided with

helpful information to make their own views known to

public officials.

Well-financed speech may be successful in reaching

the ears of public officials and persuading them. But

that is no reason to shut down or impose excessive

burdens on the exercise of First Amendment rights.

Austin v. Michigan Chamber of Commerce, supra, 494

U.S. at 705 (Kennedy, J., dissenting). Nor is the

source of a speaker’s funds relevant to either his right

to speak or the right of others--society or legislators--to

hear what he has to say. Jd. at 707 (Kennedy, J.,

dissenting).

CONCLUSION

This Court would surely affirm the desirability of

facilitating political participation by ordinary citizens:

The Supreme Court decisions thus far with

respect to preserving the integrity of the

electoral and legislative processes appear to

attempt to balance competing interests in such

a way as to promote a societal value of

increasing the opportunity, effectiveness, and

thus the encouragement for participation in the

23

democratic process by ordinary citizens vis-a-vis

the more wealth or organized “special” interests.

Jack Maskell, Grassroots Lobbying:

Constitutionality of Disclosure Requirements at

12, (Cong. Research Serv. Jan. 12, 2007)

available at http://assets.opercrs.com/

rpts/RL33794_20070112.pdf

However noble this goal may be, “ordinary citizens”

often need to organize and pool resources in order to

have a meaningful voice in the complex political

machinery of modern America. “Special interest

groups’ are often associations composed of ordinary

citizens who share one or more common concerns.

Moreover, “artificially stimulated letter writing

campaigns” provide ordinary citizens with the very

tools they need for effective expression, including

names and contact information for their legislators

and opportunities to sign petitions as part of a larger

group.

This Court should grant review to halt the

troubling trend toward unconstitutional regulation

and assure the people of their fundamental rights to

speak freely about the issues of the day.

24

Respectfully Submitted,

JAMES L. HIRSEN

Counsel of Record

505 S. Villa Real Drive, Ste. 208

Anaheim Hills, CA 92807

(714) 283-8880

hirsen@earthlink.net

DEBORAH J. DEWART

620 E. Sabiston Drive

Swansboro, NC 28584-9674

(910) 326-4554

debcpalaw@earthlink.net

Counsel for Amicus Curiae