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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2009

## Text

3 | ~ Supreme $0 U.S.
ea (2) SEP 8 - 2009
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}, 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0907%3A5. Public record. Not legal advice.