Opinion by Judge Diane Sykes in Barland II “One of the Strongest, Pro-Free Speech Circuit Opinions Post-Citizens United”

January 23, 2017   •  By David Keating   •    •  , ,
Diane Sykes

Hon. Diane Sykes

United States Court of Appeals for the Seventh Circuit (2004-Present); Wisconsin Supreme Court (1999-2004); Milwaukee County Circuit Court (1992-1999)

Using our screen to find cases, and adding other cases that have come to our attention, Judge Sykes wrote or joined a number of opinions in cases that raised significant First Amendment free speech arguments while on the Seventh Circuit.[1] This post is the first in a series exploring her views on free speech.

Judge Sykes wrote all three of these opinions. In each, she strongly favors free speech over government regulation. Barland I and II challenged different sections of the Wisconsin campaign finance laws following Citizens United v. FEC. Alvarez involved the public’s right to record police officers in public. All three evince Judge Sykes’ commitment to free speech. The Barland II case opinion is one of the strongest, if not the strongest, pro-free speech circuit opinions post-Citizens United. However, in some cases we’ve not yet reported on, Sykes rejected significant First Amendment claims.

Barland I

Appellants challenged the overall, or aggregate, contribution limit that constrained donors to independent political committees. The cap limited contributors from supporting state and local candidates, political parties, and political committees beyond $10,000 combined. Relying on Citizens United and Buckley v. Valeo, Judge Sykes concluded Wisconsin could not bar or limit contributors to political committees that only spent independently, and declared the cap unconstitutional as applied to these committees. This case preceded the Supreme Court’s McCutcheon v. FEC opinion that came three years later, which held federal aggregate contribution limits to candidates, parties, and PACs unconstitutional.

Judge Sykes discussed the confluence of political spending and the First Amendment:

Expenditure limits “impose significantly more severe restrictions on protected freedoms of political expression and association.” … “A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.” Because “[p]olitical speech is indispensable to decisionmaking in a democracy” and “[a]ll speakers … use money amassed from the economic marketplace to fund their speech,” government-imposed burdens on political expenditures suppress speech quite directly and raise core First Amendment concerns. Accordingly, laws that burden spending for political speech – whether candidate spending or independent spending – get strict scrutiny and usually flunk.

And she recognized government’s limited interest in curtailing political contributions:

Importantly for our purposes here, Citizens United made it clear that the government’s interest in preventing actual or apparent corruption – an interest generally strong enough to justify some limits on contributions to candidates – cannot be used to justify restrictions on independent expenditures.

The threat of quid pro quo corruption does not arise when independent groups spend money on political speech. “By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate.” “The separation between candidates and independent expenditure groups negates the possibility that independent expenditures will result in the sort of quid pro quo corruption with which [the Court’s] case law is concerned.”

It follows, then, as a matter of law and logic, that Wisconsin’s $10,000 aggregate annual contribution limit is unconstitutional as applied to organizations, like the Right to Life PAC, that engage only in independent expenditures for political speech. This is true even though the statute limits contributions, not expenditures. Whether strict scrutiny or the intermediate “closely drawn” standard applies, the anticorruption rationale cannot serve as a justification for limiting fundraising by groups that engage in independent spending on political speech.

Barland II

This case involved a sweeping challenge to Wisconsin’s campaign finance laws following Citizens United v. FEC. Writing a lengthy opinion for the panel, Judge Sykes tossed or narrowed most of the statutes and regulations. After Citizens United, Wisconsin’s regulatory agency, the Government Accountability Board (Board), issued onerous regulations to capture more political activity. In total, the suit challenged the following sections of Wisconsin’s regulatory regime, as noted in the opinion:

  • Section 11.38(1), the ban on political spending by corporations;
  • Section 11.38(1)(a)3, the cap on the amount a corporation may spend to raise money for an affiliated political committee;
  • Sections 11.01(4) (defining “committee” and “political committee”), 11.01(6) (defining “contribution”), 11.01(7) (defining “disbursement”), and 11.01(16) (defining “political purposes”), to the extent that these definitions trigger (either independently or with the administrative rules) PAC status and other restrictions and requirements for independent groups not under the control of a candidate or candidate’s committee and not engaged in express election advocacy as their major purpose;
  • The two new administrative rules – GAB §§ 1.28 and 1.91 – promulgated in the wake of Citizens United to expand the scope of the regulatory scheme and impose PAC status or PAC-like duties and restrictions on newly liberated independent political speakers;
  • Sections 11.12(5)-(6), the 24–hour–reporting requirement for certain late contributions and expenditures (recently amended to enlarge the reporting time to 48 hours);
  • Section 11.06(7), which requires any independent group that wants to spend money to support or oppose a candidate for state or local office to file an oath affirming that the spending is not coordinated with the candidate or the candidate’s agent (a related administrative rule, GAB § 1.42(1), is also challenged); and
  • GAB § 1.42(5), which requires that independent political communications include a lengthy disclaimer.

The Board did not argue the constitutionality of Wisconsin’s ban on corporate political expenditures.

With respect to the State’s cap on corporate fundraising for an affiliated PAC, the Board suggested it would not pursue appellants for any violations raising a standing issue. Judge Sykes tossed the law in toto:

The Board hasn’t raised the voluntary-cessation doctrine, and its inconsistent and shifting positions do not give us much confidence in its representation that it will not enforce the statute. By not fully disclaiming the right to enforce this facially invalid statute, the Board’s halfhearted concession leaves us with no assurance that it will continue to recognize its unconstitutionality.

On GAB § 1.42(5) (last bullet) the Board admitted the unconstitutionality of the disclaimer as applied to 30-second ads, the only challenge brought by appellants.

On statutory definition of “political purposes” and the regulatory definition of “political committee,” the Board conceded overbroad and vagueness concerns. Both included the open-ended phrase “influence an election.” Judge Sykes narrowed both:

The “influence an election” language in both definitions raises the same vagueness and overbreadth concerns that were present in federal law at the time of Buckley. The Court held that this kind of broad and imprecise language risks chilling issue advocacy, which may not be regulated; the same reasoning applies here. The Board acknowledges as much and suggests a limiting construction to confine the definitions to express advocacy and its functional equivalent.

We’re confident that the proposed narrowing construction is reasonable, readily apparent, and likely to be approved by the state courts. The state’s highest court and its Attorney General have acknowledged that when Chapter 11 is applied beyond candidates, their committees, and political parties, it must be narrowly construed to comply with Buckley’s express-advocacy limitation . . . As applied to political speakers other than candidates, their committees, and political parties, the statutory definition of “political purposes” in section 11.01(16) and the regulatory definition of “political committee” in GAB § 1.28(1)(a) are limited to express advocacy and its functional equivalent as those terms were explained in Buckley and Wisconsin Right to Life II.

The Board created GAB § 1.28 and GAB § 1.91 after Citizens United to limit the effect of the Supreme Court’s holding. The Seventh Circuit narrowed both these disclosure rules:

Wisconsin Right to Life argues that GAB §§ 1.28 and 1.91 unconstitutionally expand the reach of the regulatory scheme by imposing political-committee status and other restrictions on groups engaged in issue advocacy and “PAC-like” burdens on independent political groups not engaged in express advocacy or its equivalent as their major purpose.

As we’ve explained, the 2010 version of GAB § 1.28 deleted the express-advocacy limitation in the old rule and added language specifically designed to bring issue advocacy within the scope of the state’s PAC regulatory system. That was the explicit goal; the Board sought to do by regulation what state lawmakers had failed to do by legislation. Under GAB § 1.28, all independent political speakers – individuals and all types of organizational associations – are “subject to the applicable requirements of ch. 11, Stats, when they [m]ake a communication for a political purpose.” GAB § 1.28(2)(c). The rule defines “communication” and “political purpose” quite expansively.

“‘Communication’ means any printed advertisement, billboard, handbill, sample ballot, television or radio advertisement, telephone call, e-mail, internet posting, and any other form of communication that may be utilized for a political purpose.”

This goes well beyond the federal definition of electioneering communications, which includes only “broadcast, cable, or satellite communication.”

The definition of “political purpose” is similarly comprehensive. No longer confined to express advocacy and its functional equivalent, the rule covers any communication made within 30 days of a primary, or 60 days of a general election, that names or depicts a “clearly identified candidate” and refers to the candidate’s “personal qualities, character, or fitness” or “supports or condemns” the candidate’s record or “position or stance on issues.”

First, it sweeps a far wider universe of political speech into the “applicable requirements of chap. 11, Stats.” than does Chapter 11 itself, introducing confusion for ordinary political speakers who lack the background or assistance of a campaign-finance lawyer. In this regard, it may also exceed the Board’s regulatory authority.

[C]ampaign-finance laws operate in a core free-speech zone and directly target protected speech. In this context, we don’t need to ask whether the challenged law reaches a substantial amount of protected speech; by definition, it does, because all political speech is protected. That’s precisely why Buckley held that the ‘government may regulate in th[is] area only with narrow specificity,’ and drew the constitutional line at express election advocacy. So the more focused inquiry here is whether this regulation steers clear of the line drawn in Buckley. Plainly it does not.

[I]t’s a mistake to read Citizens United as giving the government a green light to impose political-committee status on every person or group that makes a communication about a political issue that also refers to a candidate. That’s what GAB § 1.28(3)(b) does.

The First Amendment vagueness and overbreadth calculus must be calibrated to the kind and degree of the burdens imposed on those who must comply with the regulatory scheme. The greater the burden on the regulated class, the more acute the need for clarity and precision. Political-party committees can afford campaign-finance lawyers to advise them about compliance with the rules and restrictions on hard and soft money which was the relevant context of this part of McConnell. In significant contrast, under GAB § 1.28, ordinary citizens, grass-roots issue-advocacy groups, and § 501(c)(4) social-welfare organizations are exposed to civil and criminal penalties for failing to register and report as a PAC if they spend more than $300 to communicate their views about any political issue close to an election and include the name or likeness of a candidate in a way that could be construed by state regulators as a reference to the candidate’s qualifications or as “support” or “condemnation” of the candidate’s record or positions.

Accordingly, the second sentence of GAB § 1.28(3)(b) [which treats issue advocacy during the 30/60–day pre-election period as fully regulable express advocacy if it mentions a candidate] is unconstitutional and must be enjoined. What’s left of subsection (3)(b) basically tracks the boundaries for express advocacy and its functional equivalent established in Buckley, McConnell, and Wisconsin Right to Life II. For the most part … the remaining text of subsection (3)(b) survives review under current doctrine.

The court disposed of GAB § 1.91, which imposed PAC-like registration requirements on any independent political group:

The Board adopted [GAB § 1.91] in the immediate aftermath of Citizens United to bring all independent groups – including newly liberated independent advocacy groups that operate in the corporate form – under the umbrella of the regulatory scheme.

In essence, GAB § 1.91 establishes by rule a special PAC-like disclosure program for “independent disbursement organizations,” a nonstatutory category of political speakers. Disclosure rules are reviewed under intermediate scrutiny.

In the First Amendment context, fit matters. Even when the Court is not applying strict scrutiny, we still require “a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is ‘in proportion to the interest served,’ that employs not necessarily the least restrictive means but a means narrowly tailored to achieve the desired objective.”

It’s well accepted that disclosure requirements in the campaign-finance context serve important governmental interests by providing the public with information about “who is speaking about a candidate shortly before an election” and the sources of funding for campaign-related ads. Here, however, we “find a substantial mismatch” between that informational objective and the means the Board has chosen to achieve it. Under GAB § 1.91, every independent group that crosses the very low $300 threshold in express-advocacy spending must formally organize, register, and report like a political committee.

Why impose full-blown PAC duties so indiscriminately? The Board does not explain. For groups that engage in express election advocacy as their major purpose, the PAC regulatory system – with its organizational prerequisites, registration duties, and comprehensive, continuous financial reporting – is a relevantly correlated and reasonably tailored means of achieving the public’s informational interest. But the same cannot be said for imposing the same pervasive regulatory regime on issue-advocacy groups that only occasionally engage in express advocacy.

As it stands, GAB § 1.91 is a reasonably tailored disclosure rule for independent organizations engaged in express election advocacy as their major purpose, but the same is not true for issue-advocacy groups that only occasionally engage in express advocacy. The public’s informational interest is strong, but requiring all issue-advocacy groups to comply with Chapter 11’s burdensome PAC requirements is not a closely tailored means of achieving it. Accordingly, GAB § 1.91 is unconstitutional as applied to independent organizations whose major purpose is not express advocacy. In other respects, the rule survives First Amendment scrutiny.

The court held the challenges to Sections 11.12(5)-(6), Reporting of Late Contributions and Expenditures, were not ripe because of legislative changes.

Finally, the court held Section 11.06(7) and GAB § 1.42(1), the Oath for Independent Expenditures, which requires individuals and independent committees to affirm they were not coordinating with candidates, constitutional:

[T]he oath is a simple, one-page form with an attachment that lists the candidates to which it applies. This strikes us as a minimally burdensome regulatory requirement, and it’s reasonably tailored to the public’s informational interest in knowing the sources of independent election-related spending.

ACLU v. Alvarez

Appellants in this case challenged an Illinois eavesdropping statute that made it a felony to audio record “all or any part of any conversation” unless all parties to the conversation give their consent. The court grappled with whether the First Amendment prevents Illinois prosecutors from enforcing the eavesdropping statute against people who openly record police officers performing their official duties in public.

Judge Sykes wrote for the panel, which overturned a district court denial of a preliminary injunction and questioned the public’s right to record these events. The opinion adhered to First Amendment values and analogized campaign finance First Amendment law. Her opinion drew a dissent from Judge Richard Posner.

From the opinion

[T]he State’s Attorney has staked out an extreme position. She contends that openly recording what police officers say while performing their duties in traditional public fora – streets, sidewalks, plazas, and parks – is wholly unprotected by the First Amendment….

This is an extraordinary argument, and it rests in large part on the same misreading of [prior case law] and misapplication of the “willing speaker” principle that infected the district court’s standing determination.

Audio and audiovisual recording are media of expression commonly used for the preservation and dissemination of information and ideas and thus are “included within the free speech and free press guaranty of the First and Fourteenth Amendments.”

The act of making an audio or audiovisual recording is necessarily included within the First Amendment’s guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording. The right to publish or broadcast an audio or audiovisual recording would be insecure, or largely ineffective, if the antecedent act of making the recording is wholly unprotected, as the State’s Attorney insists.

The process of expression through a medium has never been thought so distinct from the expression itself that we could disaggregate Picasso from his brushes and canvas, or that we could value Beethoven without the benefit of strings and woodwinds. In other words, we have never seriously questioned that the processes of writing words down on paper, painting a picture, and playing an instrument are purely expressive activities entitled to full First Amendment protection.

The Supreme Court’s campaign-finance cases illustrate how laws of this sort trigger First Amendment scrutiny. The Court held long ago that campaign-finance regulations implicate core First Amendment interests because raising and spending money facilitates the resulting political speech….

So too with laws that restrict audio recording. Audio and audiovisual recording are communication technologies, and as such, they enable speech. Criminalizing all nonconsensual audio recording necessarily limits the information that might later be published or broadcast – whether to the general public or to a single family member or friend – and thus burdens First Amendment rights. If, as the State’s Attorney would have it, the eavesdropping statute does not implicate the First Amendment at all, the State could effectively control or suppress speech by the simple expedient of restricting an early step in the speech process rather than the end result. We have no trouble rejecting that premise.

In short, the eavesdropping statute restricts a medium of expression – the use of a common instrument of communication – and thus an integral step in the speech process. As applied here, it interferes with the gathering and dissemination of information about government officials performing their duties in public. Any way you look at it, the eavesdropping statute burdens speech and press rights and is subject to heightened First Amendment scrutiny.

The ACLU’s proposed audio recording will be otherwise lawful – that is, not disruptive of public order or safety, and carried out by people who have a legal right to be in a particular public location and to watch and listen to what is going on around them. The State’s Attorney concedes that the ACLU’s observers may lawfully watch and listen to the officers’ public communications, take still photographs, make video recordings with microphones switched off, or take shorthand notes and transcribe the conversations or otherwise reconstruct the dialogue later. The ACLU may post all of this information on the internet or forward it to news outlets, all without violating the Illinois eavesdropping statute. The State’s Attorney has not identified a substantial governmental interest that is served by banning audio recording of these same conversations….

[1] Internal citations to other cases have been omitted from the excerpts below.

David Keating

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