Majors, Brian v. Abell, Marsha ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-2204
BRIAN MAJORS, et al.,
Plaintiffs-Appellants,
v.
MARSHA ABELL, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. IP 98-1479-C-M/S—Larry J. McKinney, Chief Judge.
____________
ARGUED NOVEMBER 1, 2002—DECIDED JANUARY 23, 2003
____________
Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.
POSNER, Circuit Judge. An Indiana statute, challenged in
this suit as an infringement of free speech, requires that
political advertising that “expressly advocat[es] the election
or defeat of a clearly identified candidate” include “ade-
quate notice of the identity of persons who paid for . . . the
communication,” Ind. Code §§ 3-9-3-2.5(b)(1), (d), and
makes violation a misdemeanor. The district court dis-
missed the suit for lack of federal subject-matter juris-
diction on the ground that the noncandidate plaintiffs
lacked standing and that as to the candidate plaintiffs
the suit was moot.
2 No. 02-2204
The noncandidate plaintiffs are individuals who would
like to take out ads expressly advocating the election or
defeat of particular candidates but are afraid to do so lest
they be prosecuted. The district judge held that they had no
standing to challenge the statute because they had not been
threatened with prosecution (unlike Majors, one of the
candidate plaintiffs) and “apparently” were not even sub-
ject to the statute, which the defendants had argued is
limited to candidates, campaign committees, and the
committee’s agents, despite the statute’s use of the broad
term “persons.”
The judge’s ruling on standing was incorrect. A plaintiff
who mounts a pre-enforcement challenge to a statute that
he claims violates his freedom of speech need not show
that the authorities have threatened to prosecute him,
Virginia v. American Booksellers Ass’n, Inc., 484 U.S. 383, 393
(1988); Sequoia Books, Inc. v. Ingemunson, 901 F.2d 630, 633-34
(7th Cir. 1990); American Booksellers Ass’n, Inc. v. Hudnut,
771 F.2d 323, 327 (7th Cir. 1985), aff’d without opinion, 475
U.S. 1001 (1986); the threat is latent in the existence of the
statute. Not if it clearly fails to cover his conduct, of course.
But if it arguably covers it, and so may deter constitution-
ally protected expression because most people are fright-
ened of violating criminal statutes especially when the
gains are slight, as they would be for people seeking only
to make a political point and not themselves political op-
eratives, there is standing. See Virginia v. American Book-
sellers Ass’n, Inc., supra, 484 U.S. at 392-93; Hoover v. Wagner,
47 F.3d 845, 847 (7th Cir. 1995).
On its face, the Indiana statute applies to all persons
who pay for political advertising that expressly advocates
the election or defeat of a particular candidate. The de-
fendants (various state and local election officials) argue
to us as they did to the district judge that a proper inter-
No. 02-2204 3
pretation of “persons” limits the term to candidates, their
committees, and the committees’ agents. But no Indiana
court has so interpreted the statute—nor did the district
judge, who said only that “apparently” it was so lim-
ited. The website of the Indiana Election Commission,
http://www.in.gov/sos/pdfs/Disclaim.pdf (May 2002),
does not contain the limiting interpretation, but on the
contrary says that the statute applies to “individuals, organ-
izations, or committees who purchase advertisement time
or space or circulate or publish material in support of or
in opposition to a candidate, a political party, or a pub-
lic question” and indeed to “all individuals and political
organizations” who do any of these things (emphasis
added).
The district judge did not doubt that the candidate
plaintiffs, at least, had standing. The principal one, Majors,
had violated the statute and been threatened with prosecu-
tion, though not actually prosecuted. Majors’ standing
might be questioned on the ground that a candidate has
no interest in anonymity that the statute might protect;
for there are no anonymous candidates. But a candidate
can be harmed if his supporters are deterred by loss of
their anonymity from supporting him by paid advertise-
ments. Although it is their interest in anonymity that is
impaired (the candidate has none, as we have said), a
plaintiff who is harmed by the infringement of another
person’s right of free speech has standing to challenge that
infringement. E.g., Virginia v. American Booksellers Ass’n, Inc.,
supra, 484 U.S at 392-93; Secretary of State v. Joseph H. Mun-
son Co., 467 U.S. 947, 954-58 (1984); Shimer v. Washington,
100 F.3d 506, 508-09 (7th Cir. 1996). As these cases explain,
the harm establishes Article III standing; and the easy
deterrability (already noted) of much political speech is a
ground for relaxing the doctrine of “prudential” standing,
which ordinarily precludes a suit by one person to redress
4 No. 02-2204
an infringement of the rights of another even if the infringe-
ment injures the first person as well.
But the judge thought that both Majors’ case and that of
his fellow candidate plaintiffs (whom we need not discuss
separately) had become moot because of his lackadaisical
pursuit both of the litigation and of his political career.
Majors was a candidate for county assessor on the Libertar-
ian Party ticket in 1998 when, on October 28, a week before
the election, he and the other plaintiffs filed this suit and
asked for a preliminary injunction. The election came
and went without the injunction being granted. Majors
was defeated, and the case went into hibernation. Not
until February of 2000 did the plaintiffs make any further
motion in the case. Nor did Majors run for public office
in 2000.
Majors’ inaction, the judge ruled, took the case outside
the rule that when a case is capable of repetition but
avoids review because it cannot be decided in time to
avert mootness, its mootness does not deprive the court
of jurisdiction. Weinstein v. Bradford, 423 U.S. 147, 148-49
(1975) (per curiam); In re Associated Press, 162 F.3d 503, 511-
12 (7th Cir. 1998). The standard example is abortion. A suit
by a pregnant woman challenging a state law limiting the
right to an abortion is unlikely to be decided before the
pregnancy ends one way or another, and so the termination
of the pregnancy is held not to terminate jurisdiction. Roe v.
Wade, 410 U.S. 113, 125 (1973). Challenges to election rules
are treated the same way. Norman v. Reed, 502 U.S. 279,
287-88 (1992); Meyer v. Grant, 486 U.S. 414, 417 n. 2 (1988);
Stewart v. Taylor, 104 F.3d 965, 969-70 (7th Cir. 1997). For all
we know, it wasn’t until shortly before the November 1998
election that Majors was threatened with prosecution, and
by then it was too late for him and the other plaintiffs to
have any hope of invalidating the law before the election
No. 02-2204 5
took place and rendered the suit moot by conventional
standards.
The district judge thus was right not to dismiss the case
the day after the election for lack of jurisdiction. But he was
wrong to dismiss it later merely because Majors hadn’t
pressed the litigation harder or run in the next election. A
candidate plaintiff no more has a duty to run in every
election in order to keep his suit alive than an abortion
plaintiff has a duty to become pregnant again at the earli-
est possible opportunity in order to keep her suit alive.
Politicians who are defeated in an election will often wait
years before running again; obviously this doesn’t show
they’re not serious about their political career. And once
Majors decided that he would not run for county assessor
or some other office in 2000 (we’re not even told whether
the assessor’s term is two years or four years), there was
no reason for him to try to accelerate the lawsuit so that
it could be decided before the 2000 election.
Furthermore, while canonical statements of the excep-
tion to mootness for cases capable of repetition but evad-
ing review require that the dispute giving rise to the case
be capable of repetition by the same plaintiff, e.g., Weinstein
v. Bradford, supra, 423 U.S. at 149; Murphy v. Hunt, 455
U.S. 478, 482 (1982) (per curium); LaRouche v. Fowler, 152
F.3d 974, 978 (D.C. Cir. 1998), the courts, perhaps to avoid
complicating lawsuits with incessant interruptions to as-
sure the continued existence of a live controversy, do
not interpret the requirement literally, at least in abortion
and election cases, Honig v. Doe, 484 U.S. 305, 335-36 (1988)
(dissenting opinion); see Dunn v. Blumstein, 405 U.S. 330,
333 n. 2 (1972); cf. Krislov v. Rednour, 226 F.3d 851, 858 (7th
Cir. 2000); but cf. Van Wie v. Pataki, 267 F.3d 109, 114-15
(2d Cir. 2001)—and possibly more generally, Honig v. Doe,
supra, 484 U.S. at 318-20 and n. 6 (majority opinion), though
6 No. 02-2204
we needn’t worry about that. If a suit attacking an abor-
tion statute has dragged on for several years after the
plaintiff’s pregnancy terminated, the court does not con-
duct a hearing on whether she may have fertility prob-
lems or may have decided that she doesn’t want to be-
come pregnant again. And similarly in an election case
the court will not keep interrogating the plaintiff to assess
the likely trajectory of his political career.
So the suit should not have been dismissed on juris-
dictional grounds, and we turn to the merits. Although
the parties prudently have briefed the merits, we think
it would be premature for us to decide them. For they
may depend on the meaning of the challenged statute,
which only the Indiana courts can determine authorita-
tively. If the statute is as narrow as the defendants claim
it is, it is a straightforward antifraud statute unlikely to
present serious constitutional problems. For on their inter-
pretation it merely forbids the candidate and his organ-
ization to create the impression that independent voices
support him or oppose his opponent, when in fact the
voices are those of the candidate himself, playing ventrilo-
quist. Cf. McIntyre v. Ohio Elections Comm’n, 514 U.S. 334,
351 (1995) (“it [the statute challenged in that case] ap-
plies not only to the activities of candidates and their or-
ganized supporters, but also to individuals acting inde-
pendently and using only their own modest resources”);
id. at 354. But if instead as the plaintiffs argue the statute
reaches all persons, then it is a blanket prohibition of
anonymous campaign-related speech (unless the speech
is costless, for it is only the identity of the payor of polit-
ical advertising that is required to be disclosed), and thus
puts a crimp in political speech by exposing persons who
want to express themselves for or against a particular
candidate to the risk of retaliation. The McIntyre deci-
sion holds that government cannot forbid the distribu-
No. 02-2204 7
tion of anonymous campaign literature. Id. at 357; see also
Talley v. California, 362 U.S. 60, 64-65 (1960).
Several courts have nevertheless upheld statutes ma-
terially identical to the Indiana statute broadly interpreted
to reach “all persons.” They have offered two grounds. The
first is that the statute struck down in McIntyre applied
to issue referenda as well as to candidate elections and
the decision was limited to the statute’s application to
referenda, a distinction with support in the way McIntyre
distinguished Buckley v. Valeo, 424 U.S. 1, 80 (1976) (per
curiam). See 514 U.S. at 356. Second, in McIntyre the
state had defended its statute only on the basis that know-
ing the author of a document helps one to evaluate its
truthfulness, whereas these courts think it a weightier
ground that disclosure “protects the integrity of the elec-
toral process by ensuring that the words of an independent
group are not mistakenly understood as having come from
the mouth of a candidate.” Federal Election Comm’n v. Pub-
lic Citizen, 268 F.3d 1283, 1288 (11th Cir. 2001) (per curiam);
see also Gable v. Patton, 142 F.3d 940, 944-45 (6th Cir. 1998);
Kentucky Right to Life, Inc. v. Terry, 108 F.3d 637, 646-48 (6th
Cir. 1997); Seymour v. Elections Enforcement Comm’n, 762
A.2d 880, 886-87 (Conn. 2000).
These might be thought fragile distinctions. Interest
groups contest referenda just as candidates and parties
contest elections of officials, and so the public interest
in knowing the source of an anonymous contribution to
the debate is as great in the one case as in the other, but
was not great enough to sway the Court in McIntyre. For
we read there that “insofar as the interest in informing
the electorate means nothing more than the provision
of additional information that may either buttress or
undermine the argument in a document, we think the
identity of the speaker is no different from other compo-
8 No. 02-2204
nents of the document’s content that the author is free to
include or exclude.” 514 U.S. at 348. As for the interest
in forbidding the author of campaign literature to “pass
off” his words as those of the candidate, it does not re-
quire revealing the author’s name. Recall that McIntyre
distinguishes Buckley v. Valeo, supra, 424 U.S. at 60-84,
which upheld the compelled disclosure of the identity of
financial contributors to federal election campaigns. 514
U.S. at 353-56.
The fact that the state in our case is advocating the nar-
row reading of its statute indicates its awareness that if
broadly interpreted, in accordance with decisions such
as Public Citizen, the statute may be unconstitutional. The
statutory language supports the broad interpretation,
but literal interpretations are often rejected when neces-
sary to save a statute from being held unconstitutional.
Regional Rail Reorganization Act Cases, 419 U.S. 102, 134
(1974); Green v. Bock Laundry Machine Co., 490 U.S. 504, 527
(1989) (Scalia, J., concurring); Saadeh v. Farouki, 107 F.3d
52, 58-60 (D.C. Cir. 1997); Hall v. Walter, 969 P.2d 224, 229-31
(Colo. 1998); Sassone v. Lepore, 629 A.2d 357, 363-64 (Conn.
1993) (“if literal construction of a statute raises serious
constitutional questions, we are obligated to search for
a construction that will accomplish the legislature’s pur-
pose without risking the statute’s invalidity”); cf. Buckley
v. Valeo, supra, 424 U.S. at 76-81. Indiana’s highest court
has embraced this principle, as explained in A Woman’s
Choice-East Side Women’s Clinic v. Newman, 671 N.E.2d 104,
111 (Ind. 1996) (concurring opinion). Indeed, after we
certified an issue of Indiana election law quite like the one
in this case to the Indiana Supreme Court in Brownsburg
Area Patrons Affecting Change v. Baldwin, 137 F.3d 503, 509-10
(7th Cir. 1998), that court adopted a narrowing interpreta-
tion to preserve the law’s constitutionality. 714 N.E.2d 135,
142 (Ind. 1999). A state court is bound to have a better idea
No. 02-2204 9
of the elasticity of the state’s statutes than a federal court
would have. Cf. Wisconsin Right to Life, Inc. v. Paradise, 138
F.3d 1183, 1186-87 (7th Cir. 1998).
We therefore certify to the Indiana Supreme Court,
pursuant to 7th Cir. R. 52 and Ind. Code § 33-2-4-1, the
following question, upon the answer to which the fur-
ther proceedings in this appeal will depend:
Is the term “persons” in Ind. Code §§ 3-9-3-2.5(b)(1), (d)
limited to candidates, authorized political committees or
subcommittees of candidates, and the agents of such
committees or subcommittees, or does it have a broader
scope, and, if so, how much broader?
One loose end remains to be tied up. In addition to
seeking injunctive relief, the plaintiffs seek damages. As
the unconstitutionality of the statute is debatable, the
defendants are shielded by official immunity from dam-
ages liability. The dismissal of so much of the suit as
seeks damages is therefore affirmed.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-23-03