Brief: Vague Criminal Laws Threaten First Amendment

Supreme Court should take Ring case and clarify the reach of criminal laws in connection with First Amendment rights


For Immediate Release

July 19, 2013

Contact: Joe Trotter

210-352-0055 (Cell)

The Center for Competitive Politics (CCP) filed a friend-of-the-court brief with the U.S. Supreme Court on Wednesday urging that the Court hear a case and clarify that legal campaign contributions cannot be used to imply the existence of an illegal quid pro quo.

“For forty years, the U.S. Supreme Court has consistently held that political contributions are protected First Amendment activity,” said Legal Director Allen Dickerson. “Yet, the D.C. Circuit’s opinion permits the government to use records of legal, constitutionally protected contributions as evidence of a lobbyist’s corrupt intent—even when precisely zero evidence exists to connect the contribution to any specific act by a legislator. The First Amendment cannot be squared with a system where the threat of incarceration accompanies the mere act of writing a check to support a candidate of one’s choice.”

The brief was filed in support of certiorari in the case of Ring v. United States.  John Cline, a highly regarded criminal defense lawyer based in San Francisco, joined Dickerson in representing CCP.

The brief warns that “Lower courts have permitted juries to infer corruption in honest service statues and similar criminal laws in cases where conduct is consistent with protected First Amendment activity. . . The D.C. Circuit’s decision in Ring exacerbates uncertainty about what constitutes protected activity, creating a chilling effect on First Amendment activities.”

The brief argues that clear lines are essential to avoid chilling protected First Amendment activities.  The brief reminds the Court that it has previously ruled that vague standards “may not only trap the innocent by not providing fair warning or foster arbitrary and discriminatory application but also operate to inhibit protected expression by inducing citizens to steer far wider of the unlawful zone than if the boundaries of the forbidden areas were clearly marked,” and that “First Amendment standards . . . must give the benefit of the doubt to protecting rather than stifling speech.”

Cline and Dickerson write in the brief that “The need for clear lines in the context of political advocacy is particularly acute when violators face harsh criminal sanctions. . . . The Court thus held that solicitation of campaign contributions constitutes extortion ‘only if the payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act.’”  Despite the establishing this requirement, lower courts have not always followed this precedent.

Although the D.C. Circuit’s decision in this case embraces a stream of benefits instruction and permits the jury to convict based on an implicit quid pro quo, the court of appeals added additional steps, which create unacceptable risks that lobbyists and other citizens will be subject to prosecution for entirely lawful conduct.

The brief points out “the court of appeals permits the use of concededly lawful campaign contributions as evidence of a lobbyist’s corrupt intent.”  Permitting a jury to draw inferences of bribery from protected conduct–particularly if the quid pro quo may be implicit and no specific official act need be identified—is dangerous.  By eliminating the requirement that the quid pro quo agreements must manifest between the person giving the gift and the public official receiving it, the appeals’ court brings us perilously close to blurring the line between lawful and unlawful conduct.

The brief argues “The court of appeals’ decision amounts to a ‘meat-axe’ where a scalpel is needed…Reasonable, precisely targeted laws regulating gifts to public officials are entirely appropriate and consistent with First Amendment standards.”

Legal scholar Ronald D. Rotunda, the Doy and Dee Henley Chair and Distinguished Professor of Jurisprudence at Chapman University School of Law, joined CCP as an amicus in the case.

You can find a copy of brief here.


The Center for Competitive Politics promotes and defends the First Amendment’s protection of the political rights of speech, assembly, and petition. It is the nation’s largest organization dedicated solely to protecting First Amendment political rights.



The Center for Competitive Politics is now the Institute for Free Speech.