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Monday, September 10, 2012

Ind. Decisions - Two interesting non-Indiana opinions today from 7th Circuit

In Buddy Bell v. Chicago Police (ND Ill.), a 35-page opinion, Circuit Judge Flaum writes:

A Chicago ordinance criminalizes an individual’s refusal to leave a scene when so instructed by a police officer when three or more individuals are engaging in disorderly conduct nearby. Buddy Bell was arrested under that ordinance, the enforcement of which he presently seeks to enjoin as facially violative of the First and Fourteenth Amendments. The district court dismissed his claims, ruling that he lacked standing to sue for injunctive relief.

We hold that Buddy Bell may sue to enjoin the ordinance as facially unconstitutional. We also conclude that Chicago Municipal Code § 8-4-010(d) (hereinafter “Subsection D”) substantially inhibits protected speech and is not amenable to clear and uniform enforcement. We partially invalidate the ordinance and reverse.

In Center for Individual Freedom v. Lisa Madigan, AG (NE Ill.), an 80-page opinion, Circuit Judge Hamilton writes:
The Supreme Court’s decision in Citizens United v. FEC, 130 S. Ct. 876 (2010), is best known for striking down as an unconstitutional restriction of free speech the federal law that bans corporations and labor unions from running campaign-related advertisements in the lead-up to an election. That holding largely overshadowed another part of the decision upholding the same law’s campaign finance disclosure provisions. Those provisions require any outside entity or individual spending significant sums in a federal election to file reports with the Federal Election Commission (FEC) identifying the person or group making the expenditure, its amount, and the names of certain contributors. Describing disclosure requirements as a “less restrictive alternative to more comprehensive regulations of speech,” the Citizens United Court wrote that “prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters. . . . The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way.” Id. at 916. Despite this holding, in the aftermath of Citizens United a number of suits have been filed challenging federal and state disclosure regulations as facially unconstitutional. Of the federal courts of appeals that have decided these cases, every one has upheld the disclosure regulations against the facial attacks.

This case involves another such challenge. Plaintiff-appellant Center for Individual Freedom (the Center) seeks to invalidate Illinois disclosure requirements on the grounds that they are facially vague and overbroad restrictions of speech in violation of the First and Fourteenth Amendments. Illinois’s disclosure law is modeled on the federal one. It requires groups and individuals that accept “contributions,” make “expenditures,” or sponsor “electioneering communications” in excess of $3,000 to make regular financial disclosures to the State Board of Elections. See 10 ILCS 5/9-1.8. The Illinois Election Code drew the key definitions of “contribution,” “expenditure,” and “electioneering communication” from federal law. The only substantive differences are that the Illinois disclosure requirements (1) cover election activity relating to ballot initiatives, which have no federal analog; (2) do not exempt from regulation those groups that lack the “major purpose” of influencing electoral campaigns; and (3) cover campaign-related advertisements that appear on the Internet. The Center argues that these differences, and a few other terms in the Illinois statute, render its disclosure regime unconstitutionally vague and overbroad on its face.

To prevail in such a facial challenge, a plaintiff must cross a high bar. A statute is facially overbroad only when “it prohibits a substantial amount of protected speech,” United States v. Williams, 553 U.S. 285, 292 (2008), and unconstitutionally vague only when its “deterrent effect on legitimate expression is . . . both real and substantial.” Young v. American Mini Theatres, Inc., 427 U.S. 50, 60 (1976) (internal quotation marks omitted). The district court granted the state’s motion to dismiss, finding that the Center could not meet these standards. We affirm.

[Circuit Judge Posner writes, beginning on p. 69 of 80 (concurring in part and dissenting in part)] I agree with much in the majority opinion, but several provisions of the Illinois statute seem to me to burden the plaintiff’s freedom of speech unduly; we should invalidate them. * * *

When the five vague statutory provisions that I have been discussing are considered in combination, it becomes apparent that their cumulative effect on advocacy by CIF and similar organizations could be considerable. To avoid the burden of registration, such groups may take measures to curb their advocacy even if those measures may not in fact (that is, in law) be required in order to avoid having to register. That is the vice of vagueness— that it causes an organization or an individual to give a law a wide berth, in this instance by forgoing constitutionally protected speech. We should insist, in the name of the First Amendment, that the Illinois legislature speak with greater clarity.

Posted by Marcia Oddi on September 10, 2012 02:47 PM
Posted to Ind. (7th Cir.) Decisions