Rio Grande Foundation v. Toulouse Oliver ( 2023 )

Appellate Case: 22-2004 Document: 010110799219 Date Filed: 01/18/2023 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS January 18, 2023
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
RIO GRANDE FOUNDATION;
ILLINOIS OPPORTUNITY PROJECT,
Plaintiffs - Appellants,
v. No. 22-2004
MAGGIE TOULOUSE OLIVER, in her
official capacity as Secretary of State of
New Mexico,
Defendant - Appellee.
_________________________________
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 1:19-CV-01174-JCH-JFR)
_________________________________
Jacob Huebert, Liberty Justice Center (Daniel R. Suhr on the briefs), Chicago, Illinois,
for Plaintiffs – Appellants.
Nicholas M. Sydow, Solicitor General, Office of the New Mexico Attorney General,
Albuquerque, New Mexico, for Defendant – Appellee.
_________________________________
Before HARTZ, McHUGH, and MORITZ, Circuit Judges.
_________________________________
McHUGH, Circuit Judge.
_________________________________
This appeal asks us to explore the boundaries of Article III standing for a First
Amendment challenge to state electioneering rules. Rio Grande Foundation (“RGF”) and
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Illinois Opportunity Project (“IOP”) (collectively, “Appellants”) are nonprofit advocacy
groups challenging an amendment to New Mexico’s Campaign Reporting Act (“CRA”),
which requires groups spending over designated amounts on electioneering
communications to state their identities on the materials and to disclose the identities of
their donors to New Mexico’s Secretary of State (the “Secretary”). Appellants claim
these requirements burden their First Amendment rights and chilled their planned speech
in the 2020 election cycle. The district court dismissed the case at summary judgment for
lack of standing, reasoning Appellants showed no injury-in-fact under the framework we
laid out in Initiative and Referendum Institute v. Walker, 450 F.3d 1082 (10th Cir. 2006).
Exercising jurisdiction under 28 U.S.C. § 1291, we reverse the dismissal in part,
holding that RGF had standing to pursue its First Amendment challenge to the amended
CRA’s disclosure requirement. We affirm the dismissal of IOP’s claims, but on grounds
different than those relied on by the district court.
I. BACKGROUND
A. Factual History1
On de novo review of a grant of summary judgment in a First Amendment
case, we consider the entirety of the record submitted. Citizens for Peace in Space v.
1
Because this matter comes to us on summary judgment, we first recite the
undisputed facts as set forth in the parties’ briefs before the district court. Fed. R.
Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). We then
supplement those facts with the declaration and deposition testimony relevant to the
disputed facts in the record to fulfill our obligation to consider the entire record in
this First Amendment context. See Essence, Inc. v. City of Fed. Heights, 285 F.3d
1272, 1283 (10th Cir. 2002).
2
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City of Colo. Springs, 477 F.3d 1212, 1219 (10th Cir. 2007); Essence, Inc. v. City of
Fed. Heights, 285 F.3d 1272, 1283 (10th Cir. 2002).2
To begin, we set forth the factual background with respect to the change in
New Mexico’s election disclosure laws. We then provide the undisputed facts
presented to the district court in the parties’ motions for summary judgment. Turning
to the disputed facts, we include the nature of the parties’ disagreement on each point
and relevant record evidence. Finally, we provide the procedural background leading
to this appeal.
1. Senate Bill 3 (2019)
In 2019, New Mexico adopted Senate Bill 3 (2019) (“SB3”), which amended
the CRA to include disclaimer and disclosure requirements for certain electioneering
communications. Campaign Finance Reporting Act, ch. 262, 2019 N.M. Laws § 1
(codified as amended at N.M. Stat. Ann. §§ 1-19-26.4, 27.3; id. at § 2-21-1). A
violation of the CRA is a misdemeanor carrying a fine of up to $1,000 or up to one
year imprisonment or both. N.M. Stat. Ann. § 1-19-36.
2
At oral argument, the Secretary objected to Appellants’ reliance on
deposition testimony beyond the portions the Secretary had highlighted for the
district court, and questions arose about whether Appellants could rely in their reply
brief on excerpts from the depositions they did not cite in the district court or in their
opening appellate brief. All the relevant pages of deposition testimony were in the
district court record and are part of the record here, so we properly consider them in
their entirety as part of our review in this First Amendment context. See Essence, 285
F.3d at 1283 (holding that the appellate court’s “review of the record is more
rigorous in a First Amendment context,” and we are “obligated to make an
independent examination of the record in its entirety” (quotation marks omitted)).
3
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The amended CRA requires political committees3 to register with the Secretary
and to disclose (1) the name of the committee with any sponsoring organization and
its address; (2) a statement of purpose; (3) the names and addresses of the officers of
the committee; and (4) any bank account used for contributions or expenditures.4
N.M. Stat. § 1-19-26.1(B) and (C). The amended CRA also requires reporting the
names and addresses of donors if independent expenditures5 exceed certain amounts
(the “disclosure requirement”), as follows:
3
The CRA defines “political committees” as including “an association that
consists of two or more persons whose primary purpose is to make independent
expenditures and that has received more than five thousand dollars ($5,000) in
contributions or made independent expenditures of more than five thousand dollars
($5,000) in the election cycle.” N.M. Stat. Ann. § 1-19-26(Q)(4). The parties do not
dispute that Appellants would qualify as “political committees.”
4
An “expenditure” is “a payment, transfer or distribution or obligation or
promise to pay, transfer or distribute any money or other thing of value for a political
purpose.” N.M. Stat. Ann. § 1-19-26(M).
5
An “independent expenditure” is one that is (1) “made by someone other than
a candidate or campaign committee,” (2) “not a coordinated expenditure as defined in
the [CRA],” and (3) “made to pay for an advertisement that:”
(a) expressly advocates the election or defeat of a clearly identified
candidate or the passage or defeat of a clearly identified ballot question;
(b) is susceptible to no other reasonable interpretation than as an appeal
to vote for or against a clearly identified candidate or ballot question; or
(c) refers to a clearly identified candidate or ballot question and is
published and disseminated to the relevant electorate in New Mexico
within thirty days before the primary election or sixty days before the
general election at which the candidate or ballot question is on the
ballot.
N.M. Stat. Ann. § 1-19-26(N).
4
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A person who makes independent expenditures required to be reported
under this section in an amount totaling more than three thousand
dollars ($3,000) in a nonstatewide election or nine thousand dollars
($9,000) in a statewide election, in addition to reporting the information
specified in Subsection C of this section, shall either:
(1) if the expenditures were made exclusively from a segregated
bank account consisting only of funds contributed to the account
by individuals to be used for making independent expenditures,
report the name and address of, and amount of each contribution
made by, each contributor who contributed more than two
hundred dollars ($200) to that account in the election cycle; or
(2) if the expenditures were made in whole or part from funds
other than those described in Paragraph (1) of this subsection,
report the name and address of, and amount of each contribution
made by, each contributor who contributed more than a total of
five thousand dollars ($5,000) during the election cycle to the
person making the expenditures; provided, however, that a
contribution is exempt from reporting pursuant to this paragraph
if the contributor requested in writing that the contribution not be
used to fund independent or coordinated expenditures or to make
contributions to a candidate, campaign committee or political
committee.
N.M. Stat. Ann. § 1-19-27.3(D). The independent expenditure reports filed
under these laws are publicly available online in searchable format. See N.M.
Stat. Ann. § 1-19-32(C).
The amended CRA also requires a person who makes an independent
expenditure for an advertisement over $1,000 (for a single advertisement or in the
aggregate during the election cycle) to include on the advertisement the name of the
person who authorized and paid for the advertisement (the “disclaimer requirement”),
except in certain circumstances where doing so would be impracticable. N.M. Stat.
Ann. § 1-19-26.4(A), (B).
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2. Appellants
a. Undisputed facts
RGF is a charitable organization whose mission is to inform New Mexico’s
citizens “of the importance of individual freedom, limited government, and economic
opportunity.” App. at 76. To support this mission, “RGF engages in issue advocacy
[in New Mexico] around topics central to its mission and publishes the ‘Freedom
Index,’ a real-time online voting scorecard tracking legislators’ positions on free-
market issues.” Id.IOP is a social-welfare organization whose mission is to “educat[e] the public
about policy driven by principles of liberty and free enterprise.” Id. IOP engages in
issue advocacy in Illinois and has been a plaintiff in lawsuits outside Illinois. IOP has
never sent mailers or other advertisements in New Mexico that would have been subject
to SB3.
Both RGF and IOP receive individual contributions over $5,000 during an
election cycle. All RGF’s and IOP’s expenditures are made from their general funds.
Prior to filing this lawsuit, neither organization had taken any action that
would have subjected it to the disclosure requirement. In the November 2020 election
cycle, RGF sent postcards stating whether certain candidates had signed a pledge
demanding no tax hikes through the end of the 2021 New Mexico legislative session
(the “taxpayer pledge”), but the costs of printing and mailing were under the
disclosure requirement’s threshold. IOP did not send any mailers in New Mexico
during that election cycle.
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b. Disputed facts
i. Prior advocacy
The parties dispute whether either Appellant has a history of engaging in the
type of advocacy regulated by SB3 and whether it had any effect on Appellants’
advocacy or lack thereof in the November 2020 election cycle.
RGF’s president testified that RGF has engaged in issue advocacy in New
Mexico since 2000 on many local and state issues through mailers, emails, social
media campaigns, and radio advertisements. He stated that, in the November 2020
election cycle, RGF had planned to publicize the results of its Freedom Index by
spending over $3,000 in individual legislative districts on mail campaigns. However,
instead of its planned advertising campaign, RGF sent the smaller-scale postcard with
the taxpayer pledge information and did some social media advertising at a lower
expense. RGF’s president stated that the decision to downsize the advertising was for
“a variety of practical and logistical reasons,” including the economic environment at
the time. Id. at 147–48. The mailers identified RGF as the author.
In his August 2020 declaration, IOP’s president stated IOP planned to spend
over $9,000 on mailings “to thousands of New Mexico voters within [sixty] days of
the November 2020 general election.” Id. at 30. The mailings were intended to
educate voters about an upcoming referendum on an amendment to the New Mexico
Constitution and to provide information about “the American tradition of
governmental accountability.” Id. In his subsequent deposition, IOP’s president could
not recall the precise amount IOP would have spent but confirmed it was over
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$9,000. However, IOP did not send those mailers. When asked why, IOP’s president
replied, “I think we filed a lawsuit because we don’t want our donors disclosed.” Id.
at 163. Unlike RGF, IOP did not do a smaller-scale advertisement.
ii. Concerns about SB3’s disclosure requirement
The parties dispute the extent of Appellants’ concerns about the potential risks
of donor disclosure.
Both Appellants express concern that donors might experience harassment by
“intolerant elements in society” due to the groups’ controversial positions. App. at
31, 36. At his deposition, RGF’s president discussed the experience of a Mozilla
executive who had contributed to a controversial campaign and then lost his job, a
situation in Arizona where the head of the Goldwater Institute had been subjected to
harassment and stalking, and “activists on both sides of the political aisle show[ing]
up to Tucker Carlson’s house.” Id. at 153. RGF’s president also declared he was
personally aware of instances where individuals or organizations affiliated with
certain causes or candidates in New Mexico were threatened with or experienced
retaliation, as well as harassment, boycotts, and social ostracism, although at his
deposition he could not recall any details. He further stated that one of RGF’s board
members had “a very aggressive approach taken by somebody involved in an issue
that we were dealing with” and “I’ve had politicians . . . take aggressive approaches
to expressing their displeasure with what we’re doing.” Id. at 155. RGF’s president
admitted, however, that New Mexico does not have as many “volatile issues” as some
states and RGF had no plans to make expenditures on hot-button issues that he had
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flagged as raising a risk of retaliation. Id. at 151. But he immediately qualified that
assertion, explaining “[t]hings can change quickly” and some of those issues were
potentially related to “upcoming mailings, postcards, Freedom Index-related, where
we list X, Y and Z votes, those would certainly be included in there, environmental
especially, in this session.” Id. at 154. He testified, “[W]e haven’t had anything
escalate to a point where it would become a direct threat . . ., yet it’s something that
we definitely want to try to avoid.” Id. at 155. He also expressed concern that
disclosed information is more accessible now, via the internet, than it used to be.
Similarly, IOP’s president expressed apprehension about “the cancel culture
that we’re currently at today” and gave an example of Major League Baseball leaving
Georgia due to harassment and criticism because it disagreed with a policy decision
by the Georgia legislature. Id. at 165.
Although they are not aware of any past harassment of or retaliation against
anyone affiliated with their own organizations, both Appellants’ presidents testified
that donors have expressed fear of disclosing their identities. Both presidents
admitted donors have not explicitly said they would not donate if their identities were
made public, but both declared their belief that donor disclosure would make donors
less likely to contribute and fundraising more difficult, saying they knew donors who
would cease donating if their identities were made public. At his deposition, RGF’s
president testified he has heard people say, “I can’t donate to you because I’m afraid
my donation will be made public.” Id. at 151. He stated, “[I]t is something that comes
up in conversations with donors on a fairly regular basis. . . . It’s an issue that people
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want to know about.” Id. at 154. IOP’s president stated that, based on “general
conversations,” he thinks donors “look at examples . . . that are happening currently
like the All-Star game moving, and they think about their own well-being,” and he
believes privacy is “the reason why they support our organization.” Id. at 165.
In their declarations, both organizations’ presidents also expressed concern
that if their members, supporters, and donors were disclosed, their target audiences
might focus on who is paying for the messages rather than the ideas presented in
them.
iii. Future plans
The parties dispute whether either organization has plans to engage in the type
of speech regulated by SB3 in the future.
In his declaration, RGF’s president stated, “RGF intends to engage in
substantially similar issue speech in future New Mexico elections.” App. at 35. At his
deposition, he testified that RGF was considering a mailing about a federal
congressional election happening less than two months after his deposition, stating,
“this is all very rapid-fire stuff that is happening.” Id. at 152. He said RGF did not
have any plans to make expenditures on hot-button issues, but that things can change
quickly. RGF’s president explained that although RGF believed the taxpayer pledge
information was more important than the Freedom Index scores in the November
2020 election cycle, “I don’t know if we would do something like that again.” Id. at
148. He also testified, “[T]he donor disclosure thing is a very serious issue for us,
and barring some legal change or a victory in court, we probably will withhold
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spending above the $3,000 threshold for the foreseeable future.” Id. at 152. When
asked, “If you were victorious in this lawsuit or did not have the legal restrictions
you discussed, would you spend more than $3,000 in any legislative district to make
these kind of mail communications?” he replied, “It’s quite possible, yes.” Id.IOP’s president declared IOP intends to engage in similar issue speech in
future New Mexico elections. However, at his deposition, he testified he was unsure
if IOP would make independent expenditures in New Mexico in the future. He
admitted IOP had not engaged in any other advocacy in New Mexico and stated IOP
had no immediate plans to do so, although “we look at policy across the country” and
“[t]here may be” issues about which IOP would like to speak. Id. at 165. IOP’s
president affirmed that “depending on what policies might arise in New Mexico,
[IOP] may engage in issue advocacy.” Id. He further explained, “We look at policy
across the country, and if we feel like we want to engage, then we will do that.” Id. at
163. When asked if there were any particular policies about which IOP intended to
engage in substantially similar speech in New Mexico in the future, he replied, “I
don’t know what policies are going to happen in the future, so I can’t answer that.”
Id. He stated, “I don’t know what policy where at [sic], but I’m constantly looking all
over the country and working all over the country.” Id.B. Procedural History
Appellants filed a complaint in December 2019, and an amended complaint in
February 2020, challenging SB3. In their amended complaint, Appellants asserted
they wished to send advertisements that would be subject to the amended CRA in the
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November 2020 election cycle. They requested injunctive and declaratory relief,
claiming that requiring them to disclose their members and supporters violated their
rights to free association and speech and that requiring them to register and disclose
their sponsorship of issue advocacy also violated their free speech rights.6
In August 2020, Appellants moved for a preliminary injunction, attaching
declarations from their organizations’ presidents. The district court denied the
motion, determining Appellants could not show a substantial likelihood of success on
the merits because New Mexico had “an interest in informing the electorate of the
sources of significant funding” for advertisements shortly before an election, which
the district court believed outweighed Appellants’ concerns.7 Id. at 50. The district
court acknowledged that the disclaimer requirement compels speech and infringes on
Appellants’ right to privacy and anonymity, but determined the interests of the state
outweigh those burdens.
After the district court denied the preliminary injunction, the parties proceeded
to discovery and both organizations’ presidents sat for depositions in April 2021. The
parties then filed cross-motions for summary judgment. Making a facial challenge to
SB3, Appellants argued the disclosure and disclaimer requirements were
6
Count III asserted the Secretary lacked constitutional authority to promulgate
SB3. Appellants voluntarily dismissed Count III prior to the district court’s summary
judgment ruling.
7
After the district court denied the preliminary injunction, the Supreme Court
issued Americans for Prosperity Foundation v. Bonta, 141 S. Ct. 2373 (2021), which
held California’s donor disclosure requirements unconstitutional.
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unconstitutional. Appellants relied exclusively on the declarations they had
previously submitted with their preliminary injunction motion without mentioning
the depositions. The Secretary’s response and cross-motion argued Appellants lacked
standing to bring a facial challenge to SB3 because they were not injured by the
challenged laws.8 The Secretary submitted relevant pages of the depositions,
highlighting the portions cited in its brief. In their reply/response, Appellants again
relied almost exclusively on the declarations.
The district court granted the Secretary’s motion for summary judgment,
determining the court lacked subject matter jurisdiction due to lack of Article III
standing. Applying Walker, 450 F.3d 1082, the district court held Appellants lacked
standing because they could not show an injury-in-fact. Specifically, the district court
concluded Appellants had not presented evidence that they had previously engaged in
speech that would be affected by SB3 or that they had a plausible claim their speech
was presently chilled by a credible threat SB3 would be enforced against them.
The Appellants filed a timely appeal.
II. DISCUSSION
On appeal, Appellants argue the district court erred in determining they lacked
standing. They contend the district court (1) wrongly evaluated the facts at the time
of the summary judgment motions rather than at the time the complaint was filed, and
8
In the alternative, on the merits the Secretary contended the laws served
important informational interests for voters and were narrowly tailored.
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(2) failed to make inferences in their favor as required at the summary judgment
stage. They also argue that (3) the district court should have applied the doctrine of
mootness instead of standing, and concluded their case is not moot.
We first set forth the appropriate standard of review. We then address our
power to hear this appeal, beginning with the doctrine of standing and proceeding to
the doctrine of mootness. Ultimately, we hold the district court correctly concluded
Appellants lacked standing to challenge the disclaimer requirement because they
showed no injury-in-fact. With respect to the disclosure requirement, however, we
conclude the district court erred in finding RGF lacked standing, and RGF’s claim is
not moot. Thus, we reverse the dismissal as to that claim. As for IOP, we need not
determine whether it had standing to challenge the disclosure requirement because its
claim is moot. Accordingly, we affirm the decision of the district court as to IOP.
A. Standard of Review
We review a grant of summary judgment de novo, “applying the same standard
for summary judgment that applied in the district court.” Sandoval v. Unum Life Ins.
Co. of Am., 952 F.3d 1233, 1236 (10th Cir. 2020). Summary judgment is warranted if
“the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The court
views the evidence and makes reasonable inferences in the non-movant’s favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). We “need not defer to
factual findings rendered by the district court.” Lincoln v. BNSF Ry. Co., 900 F.3d
1166, 1180 (10th Cir. 2018) (citation and internal quotation marks omitted). On a
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free speech claim, the court must make “an independent examination of the whole
record” to ensure the decision does not “constitute a forbidden intrusion on the field
of free expression.” Citizens for Peace in Space, 477 F.3d at 1219 (quoting Bose, 466
U.S. at 499).
Standing and mootness are questions of law reviewed de novo. Brown v.
Buhman, 822 F.3d 1151, 1168 (10th Cir. 2016). To survive a summary judgment
challenge to standing, “the plaintiff must set forth by affidavit or other evidence
specific facts that, if taken as true, establish each of the elements of standing.” Nova
Health Sys. v. Gandy, 416 F.3d 1149, 1154 (10th Cir. 2005) (citing Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561 (1992)). “A federal court is powerless to
create its own jurisdiction by embellishing otherwise deficient allegations of
standing.” Id. (quoting Whitmore v. Arkansas, 495 U.S. 149, 155–56 (1990)).
B. Legal Standard: Justiciability
Article III of the Constitution permits federal courts to decide only “Cases” or
“Controversies.” U.S. Const. art. III, § 2. This requires “a genuine, live dispute
between adverse parties, thereby preventing the federal courts from issuing advisory
opinions.” Carney v. Adams, 141 S. Ct. 493, 498 (2020). The “case-or-controversy”
requirement “is built on separation-of-powers principles and serves to prevent the
judicial process from being used to usurp the powers of the political branches.”
Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013). Although the primary
concern is jurisdictional, the case-or-controversy requirement also protects judicial
economy, ensuring “the scarce resources of the federal courts are devoted to those
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disputes in which the parties have a concrete stake.” Friends of the Earth, Inc. v.
Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 191 (2000).
The doctrines of standing and mootness aim to ensure federal courts stay
within Article III’s bounds throughout the litigation.9 See id. at 189 (“The requisite
personal interest that must exist at the commencement of the litigation (standing)
must continue throughout its existence (mootness).” (quoting Arizonans for Official
English v. Arizona, 520 U.S. 43, 68 n.22 (1997))). “Standing concerns whether a
plaintiff’s action qualifies as a case or controversy when it is filed; mootness ensures
it remains one at the time a court renders its decision.” Brown, 822 F.3d at 1163. The
party invoking federal jurisdiction “bears the burden of establishing standing as of
the time it brought [the] lawsuit and maintaining it thereafter.” Carney, 141 S. Ct. at
499 (citing Lujan, 504 U.S. at 561). “Failure to satisfy the requirements of either
doctrine places a dispute outside the reach of the federal courts.” Brown, 822 F.3d at
1164.
C. Application
1. Standing
“A party facing prospective injury has standing to sue where the threatened
injury is real, immediate, and direct.” Davis v. Fed. Election Comm., 554 U.S. 724,
9
A third doctrine, ripeness, “aims to prevent courts from entangling
themselves in abstract disagreements by avoiding premature adjudication.” Cellport
Sys., Inc. v. Peiker Acustic GMBH & Co. KG, 762 F.3d 1016, 1029 (10th Cir.
2014) (quotation marks omitted).
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734 (2008). The doctrine of standing requires a litigant to “prove [1] he has suffered
a concrete and particularized injury [2] that is fairly traceable to the challenged
conduct, [3] and is likely to be redressed by a favorable judicial decision.” Carney,
141 S. Ct. at 498 (quoting Hollingsworth v. Perry, 570 U.S. 693, 704 (2013); Lujan,
504 U.S. at 560–61).
In the First Amendment context, the Supreme Court has recognized a
“lessening of prudential limitations on standing” due to the difficulty of showing an
injury-in-fact for certain First Amendment claims, Sec’y of State of Md. v. Joseph H.
Munson Co., 467 U.S. 947, 956 (1984), such as chilled speech or pre-enforcement
challenges, see Peck v. McCann, 43 F.4th 1116, 1133 (10th Cir. 2022) (explaining
the bar to show standing “is not supposed to be a difficult bar for plaintiffs to clear in
the First Amendment pre-enforcement context”); see also Wright & Miller, 13A Fed.
Prac. & Proc. § 3531.4 (3d ed.) (“The nature of First Amendment rights readily
supports recognition of injury; the importance of these rights supports recognition of
rather attenuated injury.”).
We have acknowledged the inherent difficulty of showing an injury-in-fact on
a chilled speech claim, because such injuries are, by definition, inchoate: the speech
“has not yet occurred and might never occur, yet the government may have taken no
formal enforcement action.” Walker, 450 F.3d at 1088. Accordingly, an injury-in-fact
exists where a chilling effect “arise[s] from an objectively justified fear of real
consequences, which can be satisfied by showing a credible threat of prosecution or
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other consequences following from the statute’s enforcement.” D.L.S. v. Utah, 374
F.3d 971, 975 (10th Cir. 2004).
In Walker, we evaluated the standing of advocacy groups making a First
Amendment challenge to a state constitutional provision requiring a supermajority to
pass wildlife-related initiatives. 450 F.3d at 1085. We determined the groups had
standing because they “provide[d] sufficiently concrete manifestations of desire to
pursue a wildlife initiative,” including “past and current conduct in preparation or
support for such initiatives in Utah and surrounding states, their allegations regarding
their desire to use the initiative process (but for the effect of [the challenged
provision]), and their claims that the supermajority requirement is the reason they are
not currently pursuing initiatives.” Id. at 1090. Walker formalized a three-part
framework as follows:
We hold that plaintiffs in a suit for prospective relief based on a
“chilling effect” on speech can satisfy the requirement that their
claim of injury be “concrete and particularized” by (1) evidence that
in the past they have engaged in the type of speech affected by the
challenged government action; (2) affidavits or testimony stating a
present desire, though no specific plans, to engage in such speech;
and (3) a plausible claim that they presently have no intention to do
so because of a credible threat that the statute will be enforced.
Id. at 1089. “If the plaintiffs satisfy these three criteria, it is not necessary to show
that they have specific plans or intentions to engage in the type of speech affected by
the challenged government action.” Id.Walker provides an example of circumstances giving rise to standing on a
chilled speech claim; where those factors exist, standing exists. Id. However, Walker
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acknowledged circumstances might satisfy the relatively relaxed standard for an
injury-in-fact on a chilled speech claim without meeting all the Walker factors. Id.For example, the first Walker factor—evidence of past relevant speech—is not
essential because “people have a right to speak for the first time.”10 Id. While past
relevant speech can lend “concreteness and specificity” to the claimed injury, it
“obviously cannot be an indispensable element” of standing. Id. (explaining plaintiffs
“can” show injury-in-fact on a chilled speech claim by satisfying the three Walker
factors); cf. Peck, 43 F.4th at 1131 (explaining that the fact certain aspects of a
particular case suffice to show an element of standing does not mean those elements
are necessary to show that element of standing). The fundamental inquiry remains the
one that pre-dates Walker: “The chilling effect, to amount to an injury, must arise
from an objectively justified fear of real consequences, which can be satisfied by
showing a credible threat of prosecution or other consequences following from the
statute’s enforcement.” D.L.S., 374 F.3d at 975; see Walker, 450 F.3d at 1088.
It is axiomatic that standing is evaluated as of the time a case is filed. See
Friends of the Earth, 528 U.S. at 180; Brown, 822 F.3d at 1163; see also S. Utah
Wilderness All. v. Palma, 707 F.3d 1143, 1152–53 (10th Cir. 2013) (explaining that,
where an amended complaint supersedes an original complaint, standing is
determined as of the time the first complaint was filed). However, “an initial
10
Additionally, we note that past relevant speech might have been chilled, in
which case lack of past speech would not show lack of injury.
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conclusion that plaintiffs have standing is subject to reexamination, particularly if
later evidence proves inconsistent with that conclusion.” Friends of the Earth, 528
U.S. at 201 (Scalia, J. & Thomas, J., dissenting) (citing Gladstone Realtors v. Vill. of
Bellwood, 441 U.S. 91, 115, 115 n.31 (1979) (“[I]t sometimes remains to be seen
whether the factual allegations of the complaint necessary for standing will be
supported adequately by the evidence.”)); see also Wyoming v. Oklahoma, 502 U.S.
437, 446 (1992) (“[I]f convinced . . . that we were clearly wrong in accepting
jurisdiction of this case, we would not hesitate to depart from our prior rulings.”).
Furthermore, “the proof required to establish standing increases as the suit proceeds.”
Davis, 554 U.S. at 734. “At the pleading stage, general factual allegations of injury
resulting from the defendant’s conduct may suffice,” while on summary judgment,
the plaintiff “must ‘set forth’ by affidavit or other evidence ‘specific facts,’ . . .
which for purposes of the summary judgment motion will be taken to be true.” Lujan,
504 U.S. at 561 (quoting Fed. R. Civ. P. 56(e)).
Regardless of the stage of litigation at which the court evaluates standing, the
standing inquiry remains focused on whether the party invoking jurisdiction had a
sufficient stake in the outcome when the suit was filed. Davis, 554 U.S. at 734;
Friends of the Earth, 528 U.S. at 180; Arizonans for Official English, 520 U.S. at 68
n.22. Thus, the inquiry before the district court was—and our question is—whether
Appellants had a personal stake in a case or controversy at the time they filed their
complaint, in light of all the evidence we now have, construed in the light most
favorable to Appellants and making reasonable inferences in their favor.
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a. The disclaimer requirement
The district court rightly determined Appellants lacked standing to challenge
the requirement that they identify themselves on their electioneering materials
because there is no evidence suggesting this disclaimer requirement ever affected
Appellants’ speech or conceivably would affect their speech. Cf. Rio Grande Found.
v. City of Santa Fe, 7 F.4th 956, 960–61 (10th Cir. 2021), cert. denied, 142 S. Ct.
1670 (2022) (determining RGF lacked standing to make a chilled speech claim where
it averred intent to speak despite challenged municipal ordinance, negating the
claimed chill). Appellants’ past mailers and advertisements voluntarily included the
identity of the senders and both organizations’ presidents stated they preferred to
identify themselves on their materials. See App. at 155 (explaining if RGF is “going
to spend money on something, [it is] going to put [its] name on it”); id. at 162(expressing IOP’s belief it was “best practice” to identify itself on its materials).
Where both organizations are already committed to identifying themselves on their
materials, neither will be deterred from speaking by a requirement that they continue
to do so.
Appellants suggest they do not need to show the disclaimer requirement would
chill their speech, only that it would deprive them of their right to choose whether to
identify themselves. This is little more than a statement that Appellants disagree with
the requirement, and disagreement is not an injury-in-fact. See Laird v. Tatum, 408
U.S. 1, 13 (1972) (explaining mere disagreement with government policy was not
enough for standing; there must be a direct injury). Because Appellants cannot show
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any past, present, or future injury from the disclaimer requirement, they lack standing
to challenge it.
b. The disclosure requirement
The district court concluded RGF lacked standing to challenge the disclosure
requirement because it could not satisfy the first and third Walker factors. We
disagree with that conclusion and the district court’s interpretation of Walker. Put
simply, Walker intended to reflect the low bar for showing standing on a chilled
speech claim, not raise that bar.
i. Past relevant speech
In concluding RGF failed to satisfy the first Walker factor, the district court
focused on the fact RGF has not historically spent the amount of money on political
advertisements that would trigger SB3.11 But RGF was not required to make such a
showing. In Walker, we noted that past speech was not necessary at all, 450 F.3d at
1089, let alone past speech of the precise scale as would trigger the challenged law.
Past relevant speech, where it exists, simply helps to differentiate the plaintiff’s
specific, concrete alleged injury from the general, hypothetical interest of the public.
Id; see generally O’Rourke v. Dominion Voting Sys., Inc., No. 21-1161, 2022 WL
11The parties do not dispute that RGF’s prior expenditures were below the
amount that would have triggered the disclosure requirement, so we assume that fact
for purposes of this appeal. However, we do not express an opinion on the
correctness of that conclusion. It appears to be based on an underlying assumption
that the only costs to advertising considered “expenditures” under the CRA are the
costs of dissemination, e.g., printing and mailing costs, an assumption that may not
be warranted given the lack of limiting language in the statute or regulations.
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1699425, at *2 (10th Cir. May 27, 2022) (explaining injury-in-fact cannot be harm
identical to “every citizen’s interest in proper application of the Constitution and
laws” or seek “relief that no more directly and tangibly benefits [them] than it does
the public at large” (quoting Lance v. Coffman, 549 U.S. 437, 439 (2007) (per
curiam))). Even advertisements of a smaller scale may help to define the contours of
the alleged injury to distinguish it from the generalized interest everyone has in free
speech.
RGF’s past advocacy does just that. It is undisputed that RGF’s mission since
2000 has been to inform New Mexico’s citizens of its views and it engages in issue
advocacy in pursuit of that mission. RGF’s president testified that, in addition to
publishing the online Freedom Index, RGF has engaged in issue advocacy in New
Mexico on many local and state issues through mailers, emails, social media
campaigns, and radio advertisements. Furthermore, RGF made plans to publicize the
results of its Freedom Index by spending over $3,000 in individual legislative
districts on mail campaigns within sixty days of the November 2020 election. These
past actions lend ample “concreteness and specificity” to what would otherwise be an
“inchoate” injury, satisfying the first Walker factor. See 450 F.3d at 1088.
The district court determined that RGF’s failure to send its planned 2020
mailers weighed against standing. But the fact that RGF planned the mailers in the
first place supports that they had a concrete interest in challenging SB3 at the time
they filed the lawsuit. Cf. id. at 1090–91 (concluding the first Walker factor satisfied
by “past and current conduct in preparation or support for such initiatives in Utah
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and surrounding states” (emphasis added)). Furthermore, their eventual failure to
send the mailers weighed in favor of standing, not against it, because it suggested the
speech was chilled. Cf. Aptive Env’t, LLC v. Town of Castle Rock, 959 F.3d 961, 976
(10th Cir. 2020) (explaining acquiescence to a law does not defeat standing to
challenge it). It is true RGF’s president did not explicitly blame SB3 for abandoning
the original mailers and cited other factors as relevant to the decision. But he also
testified about his organization’s practice of tailoring its advertisements to avoid
triggering disclosure requirements, making it reasonable to infer that the disclosure
requirement played at least some part.
ii. Evidence showing a present desire to engage in affected speech
Walker’s second factor is not meant to be difficult to satisfy; affidavits stating
a general desire suffice. Peck, 43 F.4th at 1130–32; Rio Grande, 7 F.4th at 960
(stating affidavit averring a “desire to continue speaking about municipal ballot
measures in the future” sufficed because “[n]othing more concrete than this general
aspiration is needed to meet [Walker’s] second prong”). Even in the absence of direct
evidence, circumstances from which a court can infer a present desire also suffice.
See Walker, 450 F.3d at 1091. A plaintiff need not show the specific content or likely
timing of their desired speech. Peck, 43 F.4th at 1131–32 (“Such a barrier would be
so daunting as to obviate the leniency we generally apply to First Amendment
standing inquiries.”).
RGF’s president declared his organization wished to send mailers in the 2020
election cycle and “intends to engage in substantially similar issue speech in future
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New Mexico elections.” App. at 35. The district court properly determined this met
the low bar for standing purposes. The Secretary’s arguments to the contrary are
primarily challenges to the strength of the evidence, arguing the deposition testimony
contradicted this statement and was vague. At the summary judgment stage, however,
the court must view the evidence in the light most favorable to RGF and make
reasonable inferences in its favor. Thus, the district court properly found RGF
adequately showed a desire to engage in future speech affected by SB3.
iii. A plausible chill
The district court found that RGF did not show a “plausible claim” because the
district court believed evidence cast doubt on whether RGF would engage in speech
regulated by SB3 in the future. Id. at 229 (quoting Rio Grande, 7 F.4th at 959). But
the third Walker factor is not an invitation for the district court to evaluate the
strength of the plaintiff’s evidence that it will, in fact, be chilled.12 See Day v. Bond,
500 F.3d 1127, 1137 (10th Cir. 2007) (“Practically speaking, Walker mandates that
we assume, during the evaluation of the plaintiff’s standing, that the plaintiff will
prevail on his merits argument.”). And it certainly does not require the plaintiff to
prove he will actually engage in speech affected by the law in the future; a plaintiff
on a chilled-speech claim “by definition does not—indeed, should not—have a
present intention to engage in that speech at a specific time in the future.” Walker,
12
We admit our use of the word “plausible” in Walker and Rio Grande may
have injected confusion into the district court’s analysis of the third Walker factor.
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450 F.3d at 1089; accord Susan B. Anthony List v. Driehaus, 573 U.S. 149, 163
(2014) (“Nothing in this Court’s decisions requires a plaintiff who wishes to
challenge the constitutionality of a law to confess that he will in fact violate that
law.”).
Rather, the third Walker factor asks whether the alleged chill “arise[s] from an
objectively justified fear of real consequences.” D.L.S., 374 F.3d at 975. Put another
way, standing on a chilled-speech claim requires both subjective and objective
deterrence—i.e., not just that the plaintiff claims to be deterred by the challenged law
but that the challenged law would plausibly deter a reasonable person in the
plaintiff’s position. Rio Grande, 7 F.4th at 960. The subjective chill here is obvious:
evidence shows that donor privacy is important to RGF and it tailors its speech to
avoid triggering donor disclosure requirements. The objective chill is equally
obvious: the law punishes violations with penalties including a fine or imprisonment.
N.M. Stat. Ann. § 1-19-36; see Peck, 43 F.4th at 1133 (assuming a state will enforce
its own laws in the absence of evidence to the contrary). A reasonable organization
would refrain from desired speech—here, larger-scale and therefore costlier
advertisements—where speaking without disclosing donors would subject it to
statutory penalties but disclosing donors would alienate them.
In sum, RGF showed an injury-in-fact because it did far more than claim harm
identical to “every citizen’s interest in proper application of the Constitution and
laws” or seek “relief that no more directly and tangibly benefits [them] than it does
the public at large.” O’Rourke, 2022 WL 1699425, at *2 (quoting Lance, 549 U.S. at
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439). At the time it filed its complaint, RGF had a specific interest in challenging the
disclosure requirement because there was an objective risk the law would affect
RGF’s ability to engage in desired speech, and relief from the court would have
eliminated the potential chilling effect of the law. Thus, RGF had standing to
challenge the disclosure requirement.
Because we now conclude IOP’s challenge to the disclosure requirement is
moot, we do not address whether it had standing to bring its claim.
2. Mootness
The district court did not address mootness because it determined Appellants
lacked standing. Because we have an independent duty to ensure ourselves of our
own jurisdiction, Amazon, Inc. v. Dirt Camp, Inc., 273 F.3d 1271, 1274 (10th Cir.
2001), we evaluate whether the passing of the November 2020 election mooted
Appellants’ challenges to the disclosure requirement. We conclude RGF’s claim is
not moot. In contrast, IOP’s claim is moot and ineligible for the claimed exception.
The doctrine of mootness ensures that a case or controversy exists throughout
the proceedings. See Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 71 (2013)
(explaining that an “actual controversy must be extant at all stages of review, not
merely at the time the complaint is filed” (quoting Arizonans for Official English,
520 U.S. at 67)). Mootness is often described as “standing set in a time frame”;
although the comparison is not a perfect one, with rare exceptions “[t]he requisite
personal interest that must exist at the commencement of the litigation (standing)
must continue throughout its existence (mootness).” Ajaj v. Fed. Bureau of Prisons,
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25 F.4th 805, 811 (10th Cir. 2022) (internal quotation marks omitted). The defendant
generally has the “stringent” burden of persuasion on mootness by showing that
“subsequent events ma[k]e it absolutely clear that the allegedly wrongful behavior
could not reasonably be expected to recur.” Friends of the Earth, 528 U.S. at 189(quoting United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203
(1968)).
In deciding whether a case is moot, “[t]he crucial question is whether granting
a present determination of the issues offered . . . will have some effect in the real
world.” Kan. Jud. Rev. v. Stout, 562 F.3d 1240, 1246 (10th Cir. 2009) (quotation
marks omitted). “When it becomes impossible for a court to grant effective relief, a
live controversy ceases to exist, and the case becomes moot.” Id.; see also Ind v.
Colo. Dep’t of Corr., 801 F.3d 1209, 1213 (10th Cir. 2015) (“[A] case becomes moot
when a plaintiff no longer suffers actual injury that can be redressed by a favorable
judicial decision.” (internal quotation marks omitted)).
Courts recognize various “exceptions” to mootness that allow jurisdiction
despite an apparent lack of any live case or controversy. See Brown, 822 F.3d at
1166–67. As relevant here, these exceptions include where an alleged injury is
“capable of repetition, yet evading review,” which applies where (1) “the challenged
action ended too quickly to be fully litigated” and (2) “a reasonable expectation
exists for [the plaintiff] to again experience the same injury.” Marks v. Colo. Dep’t of
Corr., 976 F.3d 1087, 1093–94 (10th Cir. 2020) (internal quotation marks omitted).
Challenges to election laws may readily satisfy the first element, as injuries from
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such laws are capable of repetition every election cycle yet the short time frame of an
election cycle is usually insufficient for litigation in federal court. See, e.g., Fed.
Election Comm’n v. Wis. Right to Life, Inc., 551 U.S. 449, 462 (2007). The second
element may be more difficult to show, although the bar is not meant to be high. See
Honig v. Doe, 484 U.S. 305, 318 n.6 (1988) (explaining that, to avail itself of this
exception to mootness, a plaintiff need not show that “a recurrence of the dispute [is]
more probable than not”). Even a statement expressing intent to engage in the
relevant speech might suffice. See Davis, 554 U.S. at 736; see also First Nat. Bank of
Bos. v. Bellotti, 435 U.S. 765, 775 (1978) (applying the exception where
“[a]ppellants insist that they will continue to oppose the constitutional amendment”).
a. RGF
RGF’s challenge to the disclosure requirement is not moot because
determining the law’s constitutionality would have a real effect on RGF. See Kan.
Jud. Rev., 562 F.3d at 1246. RGF’s president testified that donor disclosure laws
continue to shape RGF’s advocacy. He testified, “[T]he donor disclosure thing is a
very serious issue for us, and barring some legal change or a victory in court, we
probably will withhold spending above the $3,000 threshold for the foreseeable
future.” Id. at 152. When asked, “If you were victorious in this lawsuit or did not
have the legal restrictions you discussed, would you spend more than $3,000 in any
legislative district to make these kind of mail communications?” he replied, “It’s
quite possible, yes.” Id. If the disclosure requirement were invalidated, RGF could
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cease tailoring its advocacy to avoid triggering the law. Accordingly, RGF’s
challenge to the disclosure requirement is not moot.
b. IOP
In contrast, IOP’s challenge is moot because invalidating the disclosure
requirement would not affect IOP. There is no evidence from which to infer IOP has
any reasonable probability of engaging in speech in New Mexico in the future, let
alone speech that would be subject to the disclosure requirement. IOP’s president
stated that the organization “look[s] at policy across the country, and if we feel like
we want to engage, then we will do that.” Id. at 163. The vague possibility IOP might
someday be interested in speaking in New Mexico on some unidentified topic hardly
shows that invalidation of the law would redress any potential injury to IOP.
IOP is not eligible for the exception for injuries “capable of repetition yet
evading review” because IOP has not shown any reasonable probability the
controversy will reoccur. Although IOP’s president stated in his declaration that “IOP
intends to engage in substantially similar issue speech in future New Mexico
elections,” App. at 30, his deposition testimony revealed that any such intent is
entirely conditional and speculative. Cf. Kan. Jud. Rev., 562 F.3d at 1248 (explaining
a claim was “so imbued with speculation and remoteness that [it] cannot serve as a
foundation for our circumspect jurisdictional inquiry”). Evidence that IOP will scour
the entire country for issues that pique its interest, and engage if it is so inclined,
does not show intent to engage in speech subject to New Mexico’s disclosure
requirement. There is not even any basis to infer such intent. IOP has never spoken or
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wanted to speak in New Mexico other than during the November 2020 election cycle.
IOP’s one-time attempt to advertise in New Mexico differed materially from its past
advocacy, which has either been in Illinois or taken the form of lawsuits, not
advertising.
The conclusion that IOP is ineligible for the exception does not run afoul of
the Supreme Court’s caution that a plaintiff need not identify specific future speech
that will be affected by the challenged rule to benefit from this mootness exception.
In Wisconsin Right to Life, the Court explained:
We have recognized that the “capable of repetition, yet evading review”
doctrine, in the context of election cases, is appropriate when there are
“as applied” challenges as well as in the more typical case involving
only facial attacks. Requiring repetition of every “legally relevant”
characteristic of an as-applied challenge—down to the last detail—
would effectively overrule this statement by making this exception
unavailable for virtually all as-applied challenges. History repeats itself,
but not at the level of specificity demanded by the [party asserting
mootness].
551 U.S. at 463. The Court explained that, where the speaker (1) credibly claimed
that it planned “materially similar” future advertisements and (2) there was no reason
to believe the government would not prosecute violations, there was “a reasonable
expectation that the same controversy involving the same party will recur.” Id. at
463–64. Here, there is insufficient evidence that IOP has a credible plan to make any
materially similar future advertisement, and thus no reasonable expectation of
recurrence.
Appellants assert the exception should apply because of the future risk to
others even if not to Appellants, citing Storer v. Brown, 415 U.S. 724, 737 n.8
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(1974). We generally disfavor this argument. See Hendrickson v. AFSCME Council
18, 992 F.3d 958 n.10 (10th Cir. 2021) (“[O]ur cases prevent us from applying the
mootness exception based on a risk to others.” (quotation marks omitted), cert.
denied, 142 S. Ct. 423 (2021)). Even if we endorsed it, we would decline to apply it
to IOP because those other interests would be adequately represented by RGF. Thus,
IOP is ineligible for this mootness exception.
III. CONCLUSION
The evidence construed in the light most favorable to RGF shows that RGF
had a personal stake in a case or controversy about the disclosure requirement at the
time it filed its complaint and maintained that interest thereafter. We accordingly
REVERSE the dismissal of RGF’s challenge to the disclosure requirement and
REMAND to the district court. We otherwise AFFIRM the decision of the district
court.
32