Auburn Police Union v. Carpenter

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-1951
AUBURN POLICE UNION, ET AL.,
Plaintiffs, Appellants,
v.
MICHAEL E. CARPENTER,
ATTORNEY GENERAL OF THE STATE OF MAINE,
Defendant, Appellee.
No. 92-2028
AUBURN POLICE UNION, ET AL.,
Plaintiffs, Appellees,
v.
MICHAEL CARPENTER,
ATTORNEY GENERAL OF THE STATE OF MAINE,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Cyr, Circuit Judge,
Campbell, Senior Circuit Judge,
and Boudin, Circuit Judge.
Errol Copilevitz with whom John P. Jennings, Jr., Copilevitz,
Bryant, Gray & Jennings, P.C., Leland N. Chisholm and Kelly, Remmel &
Zimmerman were on brief for plaintiffs.
MacKenzie Canter, III, Leonard J. Henzke, Jr., Lehrfeld, Canter,
Henzke & Diskin and George Gills on brief for Maine State Troopers
Association, National Association of Police Officers, National
Troopers Coalition and Texas State Troopers Association, Amici Curiae.
Stephen L. Wessler, Deputy Attorney General, with whom Michael E.
Carpenter, Attorney General, and Thomas D. Warren, Deputy Attorney
General, were on brief for defendant.
November 12, 1993
CAMPBELL, Senior Circuit Judge. The State of Maine
has enacted a law (hereinafter "the Act") prohibiting a
person from soliciting property from the general public that
tangibly benefits any law enforcement officer, agency or
association.1 Violations of the Act are declared to
contravene the Maine Unfair Trade Practices Act, and they may
be enjoined and penalized civilly. Me. Rev. Stat. Ann. tit.
5, 209 (West 1992).
Plaintiffs comprise a coalition of police unions,
individual law enforcement officers, a professional
fundraiser and a private citizen.2 They sued in the United
States District Court for the District of Maine pursuant to
1. Entitled the "Solicitation by Law Enforcement Officers
Act," the statute provides that:
A person may not solicit property from the general
public when the property or any part of that
property in any way tangibly benefits, is intended
to tangibly benefit or is represented to be for the
tangible benefit of any law enforcement officer,
law enforcement agency or law enforcement
association.
Me. Rev. Stat. Ann. tit. 25, 3702-A (1992).
2. Plaintiffs include the Auburn Police Union, the Portland
Police Benevolent Association, and the Lewiston Police Union
all of which come within the definition of a "law
enforcement association" as defined in Me. Rev. Stat. Ann.
tit. 25, 3701(2); Leonard Dexter, Kevin MacDonald, and
David B. Chamberlain all of whom are officers of law
enforcement associations; R.H. McKnight Co., Inc., a
corporation in the business of fundraising and promotions on
behalf of law enforcement officers, agencies, and
associations through sale of advertising and publication of
trade magazines, programs and handbooks; and Charles
Underwood, a private citizen who wishes to advertise in
police publications and to receive copies of those
publications.
-3-
42 U.S.C. 1983, seeking to enjoin the Act and to have it
declared unconstitutional under the First and Fourteenth
Amendments to the United States Constitution.
While declaring that the provision for injunctive
enforcement was an unconstitutional prior restraint, the
district court otherwise upheld the Act against plaintiffs'
overbreadth and equal protection challenges. Both the State
of Maine and plaintiffs appeal. We vacate the district
court's determination that the injunctive relief provision
amounts to an impermissible prior restraint, and affirm the
district court's upholding of the constitutionality of the
Act.
I.
As the Act was originally enacted in 1977, its sole
exception was for solicitations by or on behalf of law
enforcement officers campaigning for election to public
office an exception still in existence. Me. Rev. Stat.
Ann. tit. 25, 3703. In 1983, the Act was amended to allow
game wardens to sell historical publications describing state
parks.3 Me. Rev. Stat. Ann. tit. 25, 3702.
3. After the 1983 amendment, section 3702 provided the
following:
No person may solicit property from the
general public when the property, or any part of
it, in any way benefits, is intended to benefit or
is represented to be for the benefit of any law
enforcement officer, law enforcement agency or law
enforcement association, except that any state
warden service association may offer for sale, by
-4-
In 1983, Maine's Attorney General brought an action
under the Unfair Trade Practices Act, Me. Rev. Stat. Ann.
tit. 5, 205-A to 214, against the Maine State Troopers
Association ("M.S.T.A.") a law enforcement association as
defined in Me. Rev. Stat. Ann. tit. 25, 3701(2) to
enjoin the M.S.T.A. from engaging in solicitations in
violation of 3702. The Attorney General alleged that the
M.S.T.A. had sold and offered to sell advertisements to Maine
businesses for insertion in its magazine, "The Maine State
Trooper." The M.S.T.A. challenged the Act's
persons other than wardens or members of the
association, to members of the public guide books
or handbooks containing historical reviews or
descriptions of services, except that on the
request of a nonmember the association may provide
that person with the copies requested for sale by
that person. No advertisements may be sold or
included in these publications, except greetings or
complimentary statements from members or former
members which shall give the full name of the
member or former member. A stated rate for this
advertisement space shall be published and no funds
in excess of that stated rate may be accepted by
the association for space.
A record of receipts and sales for space and
sales of the publication shall be kept and
available to the public during normal working
hours.
All proceeds from these sales shall be
expended for direct charitable services to members
or their spouses, widows, children, widowers or
parents and may not be used for buildings or
equipment, construction or maintenance or
entertainment of members.
Any violation of this chapter shall constitute
a violation of Title 5, chapter 10, the unfair
trade practices laws.
Me. Rev. Stat. tit. 25, 3702.
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constitutionality, and the case went to the Maine Supreme
Judicial Court (the "Law Court"), which in 1985 upheld the
Act as constitutional. See State v. Maine State Troopers
Ass'n ("MSTA"), 491 A.2d 538 (Me.), appeal dismissed, 474
U.S. 802 (1985).
The Law Court found that Maine had a compelling
interest in avoiding police coercion. It found irrelevant
the subjective intent of the solicitor and the absence of any
complaint of coercion: ". . . at least the appearance of
coercion inheres in every solicitation on behalf of law
enforcement," undermining "the integrity of the office." Id.
at 542-43. The Law Court noted the Maine Legislature's
finding that "[s]olicitation by a law enforcement agency is
inherently coercive." Id. In the court's view, the State's
interest "in protecting the reputation of its law enforcement
bodies is undeniably substantial. Indeed, we would be hard
pressed to suggest a weightier interest." Id. Holding the
statute not to be "fatally overbroad," the Law Court
emphasized that "the integrity of the State's law enforcement
agents is cast in doubt with every solicitation on their
behalf." Id. Thus the court found the Act constitutional.
The Law Court, however, affirmed the lower court's
decision that under the Equal Protection Clause of the
Fourteenth Amendment, the State could not impose any greater
restrictions on the solicitation activities of other law
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enforcement officers than were imposed upon state wardens.
Id. at 544.4 The Maine State Troopers Association appealed
from the Law Court's decision to the Supreme Court of the
United States, which summarily dismissed the appeal for want
of a substantial federal question. Maine State Troopers Ass'n
v. Maine, 474 U.S. 802 (1985).
In 1989, following the Supreme Court's summary
dismissal of the appeal in MSTA, the Maine Legislature
amended the Act so as to permit the Department of the
Attorney General to charge for the cost of consumer education
materials. Me. Rev. Stat. tit. 25, 3706. The Legislature
additionally amended the Act to permit solicitations for a
period of one year, later extended an additional six months,
to raise funds for the construction of a memorial to slain
police officers. Priv. & Spec. Laws 1989, Ch. 47; Priv. &
Spec. Laws 1990, Ch. 114.
In 1990, the same plaintiffs who brought the
present suit challenged the constitutionality of the Act in
the federal district court. See Auburn Police Union v.
Tierney ("Auburn I"), 756 F. Supp. 610 (D. Me. 1991). The
district court affirmed the magistrate judge, who ruled in a
comprehensive opinion that the Supreme Court's summary
4. The Law Court affirmed the lower court's judgment that
the M.S.T.A. should be permitted to sell their publications
to the general public, subject to the same restrictions
imposed on associations of state wardens by Me. Rev. Stat.
Ann. tit. 25, 3702.
-7-
dismissal of MSTA was not a binding precedent because the
Legislature's enactment of the above exceptions had
undermined MSTA's premise that all solicitation by law
enforcement officers and organizations is inherently
coercive. Id. at 616.5 The court held that the Act was
unconstitutionally overbroad and invalid on its face because
"[a] complete prohibition on police solicitation is not
narrowly tailored to Maine's evident interest in banning
some, but not all, such solicitation." Id. at 618. The
court further concluded that the Act violated the Equal
Protection Clause of the Fourteenth Amendment because the
State could not demonstrate a substantial governmental
interest in permitting police solicitation for a memorial to
slain officers, while prohibiting police solicitation for
other causes. Id. at 619. Finally, the district court
determined that the Act constituted an impermissible prior
restraint because it "silences by fiat an entire category of
charitable solicitation." Id. at 618. The State of Maine
did not appeal in that case.
Instead, in 1991, the Maine Legislature repealed
the exemptions, except for the exemption for solicitations by
5. The magistrate judge rejected arguments that MSTA and the
case before him turned on "very different" facts and that
post-MSTA developments undermined MSTA's precedential value.
-8-
or on behalf of law enforcement officers running for public
office.6 The Legislature then reenacted the prohibition on
solicitations with one material change the Legislature
added the word "tangibly" prior to the word "benefits" in the
new 3702-A so as to "clarif[y] that the ban on
solicitations applies only when the solicitations provide a
tangible benefit to law enforcement." Sen. Amend. B to L.D.
1682 (115th Legis. 1991).
In October 1991, the Department of the Attorney
General proposed rules under the Unfair Trade Practices Act,
Me. Rev. Stat. Ann. tit. 5, 207, defining the word
"tangibly" as used in 3702-A.7 Me. Dep't of Att'y Gen.
26-239 (1991). These rules provide that "a solicitation
which is completely unrelated to law enforcement officers,
although it increases good will toward law enforcement, does
not confer a tangible benefit," whereas "[a] solicitation
6. In addition to repealing the exception allowing the
Department of the Attorney General to charge for the cost of
consumer education materials, Me. Rev. Stat. Ann. tit. 25,
3706, the Legislature repealed the exception permitting State
Warden Service associations to sell guide books but not
advertisements, Me. Rev. Stat. Ann. tit. 25, 3702, and an
exception permitting non-law enforcement officers to sell
advertising in publications of the Department of Inland
Fisheries and Wildlife, Me. Rev. Stat. Ann. tit. 25, 3705.
The Private and Special Laws permitting solicitations to
raise funds for the construction of a memorial to slain
police officers expired by their own terms. Priv. & Spec.
Laws 1989, Ch. 47; Priv. & Spec. Laws 1990, Ch. 114.
7. The Attorney General has rulemaking authority under the
Unfair Trade Practices Act. Me. Rev. Stat. Ann. tit. 5,
207-2.
-9-
which funds a law enforcement program, which otherwise would
have to be funded through law enforcement's own budgeting
processes, does confer a tangible benefit." Id.8
8. The "Rules Concerning Unfair Trade Practices and
Charitable Solicitations by Law Enforcement Officers" provide
the following:
109.1 SOLICITATIONS THAT TANGIBLY BENEFIT LAW
ENFORCEMENT
A solicitation tangibly benefits a law
enforcement agency, officer, or association if the
proceeds of that solicitation are used, represented
to be used, or intended to be used to support a law
enforcement program or purpose which a law
enforcement agency or association otherwise would
have to fund through its own budgeting mechanism.
Examples of solicitations which tangibly benefit
law enforcement are as follows: (1) A solicitation
which raises money from community members to pay
for the purchase of equipment for a local police
department; (2) A solicitation to send an officer
into school classrooms to conduct anti-drug abuse
training (the money paying for the officer's salary
and for education materials); and (3) The
solicitation of funds for erection of a monument to
memorialize slain officers, which was permitted by
prior law, Priv. & Spec. Laws 1989, ch. 47.
109.2 SOLICITATIONS THAT DO NOT TANGIBLY BENEFIT
LAW ENFORCEMENT
A solicitation of money for purposes
completely unrelated to law enforcement, such as
for a charity unrelated to law enforcement, does
not confer a tangible benefit on law enforcement
even if the solicitation effort increases good will
toward law enforcement. For example, if police
officers engage in solicitations of money for
earthquake victims in South America, and if no law
enforcement agency, officer, or association
receives, is intended to receive, or is represented
to receive any of the proceeds of the solicitation,
then that solicitation program will not tangibly
benefit law enforcement.
-10-
Plaintiffs brought the present suit on September
27, 1991, seeking a declaratory judgment that 3702-A is
both facially unconstitutional and unconstitutional as
applied. Preliminary and permanent injunctions against
enforcement of 3702-A were requested. Several plaintiffs
alleged that they wanted to solicit advertising from the
business community and to place those advertisements in
police magazines like the "Maine State Trooper," and that the
Act prohibited this conduct. According to plaintiffs,
3702-A violates the First and Fourteenth Amendments because
it is unconstitutionally overbroad, serves as an
impermissible prior restraint on their freedom of speech, and
denies to them the equal protection of the laws.
The district court held that the provision for
enforcement of the Act through injunctive relief created an
impermissible prior restraint. Otherwise, it upheld the
constitutionality of 3702-A. See Auburn Police Union v.
Carpenter ("Auburn II"), 798 F. Supp. 819 (D. Me. 1992).
Plaintiffs appeal, arguing that the Act is unconstitutionally
overinclusive and underinclusive. Maine argues in response
that the United States Supreme Court's summary dismissal of
the appeal in MSTA must be accorded binding precedential
effect on the issues of overbreadth and underinclusiveness.
Even if the Supreme Court's summary dismissal does not
Me. Dep't of Att'y Gen. ch. 109.
-11-
control, Maine argues that the Act must still be upheld
because it is narrowly tailored to serve a compelling
interest. Maine also appeals from the district court's
declaration that the injunctive relief provision constitutes
an impermissible prior restraint.
II.
This appeal presents difficult questions. We must
decide, first, what issues are foreclosed by the Supreme
Court's dismissal for want of a federal question of the
appeal in MSTA. And, if any of the First and Fourteenth
Amendment issues raised by appellants are not foreclosed by
MSTA, we must decide them.
In the enabling Act, the Maine Legislature said
that the Act:
clarifies and reaffirms that the primary
and compelling purpose underlying the
laws governing solicitation by law
enforcement officers is to eliminate the
coercion that is inherent in
solicitations by and on behalf of law
enforcement officers by prohibiting such
solicitations. When a law enforcement
officer solicits from a prospective
donor, the donor may not feel totally
free to reject the request in light of
the officer's position . . . .
Priv. & Spec. Laws 1991, Ch. 510 5. We set forth in an
appendix the full text of this section of the enabling Act.
In challenging the Act, appellants contend it goes
far beyond what is constitutionally permissible and necessary
to address whatever valid concerns exist about the
-12-
coerciveness of police solicitations. Appellants insist that
such dangers, if any, must be regulated more narrowly, for
example, by legislation prohibiting solicitation by officers
in uniform, or requiring that solicitation be done only by
persons who are not themselves police officers. The present
total ban on solicitation by any "person" when the property
or any part of it "in any way tangibly benefits, is intended
to tangibly benefit or is represented to be for the tangible
benefit of any law enforcement officer . . . agency or
. . . association," is said to be unconstitutionally broad,
foreclosing innocent actions and speech that could not
possibly cause any of the evils the Maine Legislature fears.
For example, the Act would bar placing an unattended
collection box for a police charity in a public place, even
though doing this could not, appellants say, exert a coercive
influence. Appellants say that the Act does not adopt, as
the First Amendment requires, the least restrictive means to
address the evil of police coercion; that it is a prior
restraint, not only because of the conferred injunctive
powers but because of its overall scheme; and that it offends
other constitutional principles.
These issues are not easy given the protection our
Constitution affords speech and speech-related activities.
Nonetheless, we conclude that the Maine Legislature's effort
to deal with the dangers of police solicitation is within its
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constitutional authority. We hold that the Supreme Court's
dismissal of the MSTA appeal is binding on the overbreadth
issue, and that appellants' remaining constitutional claims
are insufficient.
A. Standard of Review
This case was submitted below on a stipulated
record and upon cross-motions for summary judgment. In such
a case, we review the district court's determinations de
novo. Brewer v. Madigan, 945 F.2d 449, 452 (1st Cir. 1991);
New England Legal Found. v. Massachusetts Port Auth., 883
F.2d 157, 167 (1st Cir. 1989).
The standard for reviewing appellants' First
Amendment claims depends upon whether the Act's effects on
speech are content-based. Content-based regulations are
subject to strict judicial scrutiny; they are "presumptively
invalid." R.A.V. v. St. Paul, 112 S. Ct. 2538, 2542 (1992);
Simon & Schuster, Inc. v. Members of New York State Crime
Victims Bd., 112 S. Ct. 501, 508 (1991) ("the Government's
ability to impose content-based burdens on speech raises the
specter that the Government may effectively drive certain
ideas or viewpoints from the marketplace. [citation omitted]
The First Amendment presumptively places this sort of
discrimination beyond the power of the Government.").
The district court regarded the Act's restrictions
as content-based, being limited to solicitations of property
-14-
that tangibly benefits law enforcement officers and groups,
and not extending to other sorts of solicitations. See
Burson v. Freeman, 112 S. Ct. 1846, 1850-51 (1992) (plurality
opinion) (statute prohibiting solicitation of votes, but
allowing other forms of solicitation within one hundred feet
of poll is content-based); cf. Heffron v. International Soc'y
for Krishna Consciousness, Inc., 452 U.S. 640, 648-49 (1981)
(rule that no person or organization, whether commercial or
charitable, may solicit except from a rented booth is
content-neutral restriction as it "applies evenhandedly to
all who wish to distribute and sell written materials or to
solicit funds"). Maine denies that the Act is
content-based, arguing that 3702-A prohibits only the act
of soliciting for something that tangibly benefits law
enforcement. According to the State, the content of the
solicitation i.e., whether the message is that funds are
needed for more equipment, to advocate strengthening the drug
laws, or to promote capital punishment legislation is not
relevant to 3702-A's ban on solicitation.
But while the Act may not regulate the details of a
given solicitation, the fact remains that it applies to, and
prohibits, only certain types of solicitation, necessitating
an examination of the content of each solicitation in order
to determine whether the Act's criteria are implicated. The
Supreme Court has pointed to "the reality that solicitation
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is characteristically intertwined with informative and
perhaps persuasive speech seeking support for particular
causes or for particular views on economic, political, or
social issues, and for the reality that without solicitation
the flow of such information and advocacy would likely
cease." Shaumburg v. Citizens for Better Env't, 444 U.S.
620, 632 (1979). Like the court below, we conclude that the
Act falls on the side of content-based regulation. As such,
it is subject to "exacting First Amendment scrutiny."9
Riley v. National Fed'n of the Blind, Inc., 487 U.S. 781, 788
(1988).
B. Overbreadth Binding Precedential Effect of
MSTA
9. Perhaps it might be argued although Maine has not done
so that the Act is content-neutral because it seeks to
prevent only the harmful "secondary effects" of solicitation,
i.e., the implied coercion inherent in solicitation on behalf
of law enforcement personnel, with the resulting loss of
integrity. Restrictions based on the content of speech that
seek to regulate only the "secondary effects" of the speech
have, in certain situations, been deemed content-neutral
because they "serve purposes unrelated to the content of the
expression." Ward v. Rock Against Racism, 491 U.S. 781, 791
(1989); see Renton v. Playtime Theatres, Inc., 475 U.S. 41,
47 (1986), reh'g denied, 475 U.S. 1132 (1986). But even if
this argument had not been waived, it is doubtful that these
cases, involving very dissimilar facts and regulatory
schemes, would apply here. Cf. R.A.V., 112 S. Ct. at 2549
(listeners' reactions to speech are not "secondary effects").
In any event, we need not enter into the thicket of the
"secondary effects" doctrine, as we conclude, infra, that, to
the extent not controlled by the Supreme Court's summary
dismissal of the MSTA appeal, the Act survives the stringent
scrutiny applicable to content-based regulation.
-16-
We move to Maine's argument that the summary
dismissal of the appeal in MSTA by the Supreme Court of the
United States is entitled to binding precedential effect on
the issues of overbreadth and underinclusiveness.10
The Supreme Court's summary disposition of an
appeal to it is an adjudication on the merits that must be
followed by lower courts, subject, of course, to any later
developments that alter or erode its authority. Hicks v.
Miranda, 422 U.S. 332, 343-45 (1975). We need, therefore, to
determine the "reach and content" of the Supreme Court's
dismissal of the appeal in MSTA for want of a substantial
federal question. See id. at 345 n.14.11
10. We find no merit in plaintiffs' contention that Auburn
I, 756 F. Supp. 610, is stare decisis. This court is not
bound by a district court opinion that was never appealed to,
or affirmed in, this court. See 1B Moore's Federal Practice
0.402[2], p.I-23 (1993) ("the doctrine of stare decisis makes
a decision on a point of law in one case a binding precedent
in future cases in the same court, and such courts as owe
obedience to the decision.") (emphasis added).
11. Both courts and commentators have noted the difficulty
of ascertaining the proper reach of a Supreme Court summary
disposition. See Hicks, 422 U.S. at 345 n.14
("[a]scertaining the reach and content of summary actions may
itself present issues of real substance"); Fusari v.
Steinberg, 419 U.S. 379, 391 (1975) (Burger, C.J.,
concurring) ("Another common response to summary affirmances
. . . is confusion as to what they actually do mean."), reh'g
denied, 470 U.S. 955 (1975); Preston v. Seay, 684 F.2d 172,
173 (1st Cir. 1982) ("It is of course often difficult to
understand the proper reach of Supreme Court summary
affirmances and dismissals for want of a substantial federal
question"); Note, "The Precedential Effect of Summary
Affirmances and Dismissals for Want of a Substantial Federal
Question by the Supreme Court After Hicks v. Miranda and
Mandel v. Bradley," 64 Va. L. Rev. 117, 130 (1978) (noting
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In Mandel v. Bradley, 432 U.S. 173 (1977), the
Supreme Court said that, "[s]ummary affirmances and
dismissals for want of a substantial federal question without
doubt reject the specific challenges presented in the
statement of jurisdiction and do leave undisturbed the
judgment appealed from. They do prevent lower courts from
coming to opposite conclusions on the precise issues
presented and necessarily decided by those actions." Id. at
176; see Illinois State Bd. of Elections v. Socialist Workers
Party, 440 U.S. 173, 183 (1979) ("Questions which 'merely
lurk in the record,' are not resolved, and no resolution of
them may be inferred.") (quoting Webster v. Fall, 266 U.S.
507, 511 (1925)). The Supreme Court's summary disposition
will not control later lower court cases involving
significantly dissimilar facts. See Mandel, 432 U.S. at 177(vacating lower court decision that summary affirmance was
binding because facts in summary affirmance were "very
different" from those before lower court). The Supreme Court
further cautioned that summary dispositions "should not be
understood as breaking new ground but as applying principles
established by prior decisions to the particular facts
involved." Id. at 176.
"the difficulty inherent in any attempt to interpret a
disposition without an opinion").
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In ascertaining the "reach and content" of the
Court's summary dismissal in MSTA, we may not rely solely
upon the reasoning of the Maine Law Court. Id. ("Because a
summary affirmance is an affirmance of the judgment only, the
rationale of the affirmance may not be gleaned solely from
the opinion below."); accord Anderson v. Celebrezze, 460 U.S.
780, 785 n.5 (1983); Fusari, 419 U.S. at 391-92 (Burger,
C.J., concurring). Instead, we should examine the
jurisdictional statement filed in the Supreme Court of the
United States and any other relevant aid to construction in
order to ascertain what issues were "presented and
necessarily decided" by the Court's summary dismissal.12
Examining the MSTA jurisdictional statement,
together with the accompanying papers filed with the Supreme
Court and the opinions of the lower courts, we conclude that
appellants in MSTA specifically presented the issue of facial
overbreadth, including whether the Act was broader than
justified by the underlying state interest, to the Supreme
Court. We think the Court was obliged to have considered and
12. Besides contesting whether the current case presents the
same issues that were involved in MSTA, plaintiffs contend
that the facts in the instant case and MSTA are very
different; that MSTA deviated from established constitutional
principles and broke new ground; and that doctrinal
developments have undercut the precedential value of MSTA.
Like the district court in Auburn I, we find these three
contentions lack merit. 756 F. Supp. at 614. Unlike the
court in Auburn I, however, we also conclude that MSTA is
entitled to binding precedential value on the issue of
substantial overbreadth.
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to have rejected this issue as a predicate to its dismissing
of the appeal for want of a substantial federal question.
The issue of so-called underinclusiveness, however, does not
so clearly appear in the papers, and later changes in the Act
further erode the present bearing of MSTA on that topic.
Therefore, the dismissal in MSTA is binding upon us as to
overbreadth, but is not binding as to underinclusiveness, nor
binding as to certain "as applied" issues the plaintiffs have
raised. We turn first to overbreadth.
In the strict sense, overbreadth is a doctrine for
facially invalidating a statute that is "so broad that it
'may inhibit the constitutionally protected speech of third
parties.'" N.Y. State Club Ass'n v. New York, 487 U.S. 1, 11
(1988) (quoting Members of City Council of Los Angeles v.
Taxpayers for Vincent, 466 U.S. 789, 798 (1984)); Regan v.
Time, Inc., 468 U.S. 641, 651 n.7 (1984). There must be "a
realistic danger that the statute itself will significantly
compromise recognized First Amendment protections of parties
not before the Court." Id. (quoting Taxpayers for Vincent,
466 U.S. at 801). The overbreadth "must not only be real,
but substantial as well, judged in relation to the statute's
plainly legitimate sweep." New York v. Ferber, 458 U.S. 747,
770 (1982).
Plaintiffs argue that the Act is overbroad in this
classic sense. For example, without themselves necessarily
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wishing to engage in such conduct, they note that solicitors
may wish to put out unattended collection boxes to receive
police donations. This, they say, would be noncoercive,
since no one would know who donated or did not donate, yet
the Act would prohibit it. Similarly, plaintiffs point out
that hypothetical private citizens, unconnected with the
police, are prevented by the Act from soliciting donations to
law enforcement from friends for instance, from
voluntarily soliciting funds to buy a new cruiser for a local
department. This, too, is said to be an example of how the
Act sweeps too broadly, prohibiting protected conduct by
third parties.13
Classic overbreadth, however, was an argument
specifically presented to the Supreme Court in the MSTA
appeal and necessarily rejected by its dismissal of that
appeal for want of a substantial federal question.
13. One can also hypothesize, for purposes of overbreadth
analysis, other arguably unconstitutional applications of the
Act. For example, the Act might be construed to prevent
private citizens from asking for money to lobby for a bill
that raises police salaries. However, because the Act's
prohibition runs only against fundraising for the "tangible"
benefit of law enforcement, the Maine courts might well
reject any such interpretation. Speculative readings like
this would seem best decided, if ever sought to be enforced,
in an "as-applied" lawsuit, rather than hypothesized in
advance for purposes of facial overbreadth analysis. In any
case, as discussed infra, we consider the issue of facial
overbreadth to be foreclosed by the Supreme Court's summary
dismissal of the MSTA appeal.
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When so dismissing, the Supreme Court had before
it, both in M.S.T.A.'s jurisdictional statement and in its
notice of appeal, appellants' explicit contention that the
Act was overbroad. And, as noted supra, the Law Court's
underlying opinion from which appeal was being taken had
specifically discussed and rejected overbreadth as a ground
for invalidating the Act.
It is true that in first describing the questions
presented on appeal, M.S.T.A.'s jurisdictional statement
after setting out the terms of the Act defined the
question only as whether or not the Act "violates the First
and Fourteenth Amendments to the United States Constitution."
Later, however, under the heading of "Stated Reasons for
Plenary Consideration," the jurisdictional statement urged
upon the Court the desirability of its being able to question
counsel as to "the overbreadth doctrine." In a footnote
appended to that suggestion, M.S.T.A. stated,
"From the outset, appellant has asserted
the overbreadth doctrine of NAACP v.
Button, 371 U.S. 415 (1963)."
In NAACP, the Court had stated, among other comments relevant
to overbreadth, "Furthermore, the instant decree may be
invalid if it prohibits privileged exercises of First
Amendment rights whether or not the record disclosed that the
petitioner has engaged in privileged conduct." Id. at 432.
-22-
That overbreadth was specifically presented to, and
rejected by, the Supreme Court is underscored by M.S.T.A.'s
statement in its notice of appeal to the Supreme Court that
appeal was taken from the portion of the Law Court's decision
that "the statute in question is not overbroad." We find,
therefore, that in denying the MSTA appeal, the Supreme Court
was expressly presented with, and must therefore have
rejected, the argument that the Act was unconstitutional
under the First Amendment because of overbreadth.
We think the Court's rejection of overbreadth
subsumed, besides the "classic" overbreadth described above,
another common variety of facial overbreadth claim. The term
"overbreadth" is used in First Amendment contexts not only to
invalidate statutes that are so broad as to inhibit the
constitutionally protected speech of third parties, supra,
but to facially invalidate statutes that inhibit free speech
and are unsupported by a sufficiently compelling state
interest or are not tailored narrowly to such an interest.
See Secretary of Maryland v. Joseph H. Munson Co., 467 U.S.
947, 965-66 n.13 (1984) ("where the defect in the statute is
that the means chosen to accomplish the state's objectives
are too imprecise, so that in all its applications the
statute creates an unnecessary risk of chilling free speech,
the statute is properly subject to facial attack."); see also
-23-
N.Y. State Club Ass'n, 487 U.S. at 11; Schaumberg, 444 U.S.
at 639, Taxpayers for Vincent, 466 U.S. at 797.
Any present claim of facial invalidity based on a
purported absence of compelling state interest in prohibiting
public solicitation for the tangible benefit of law
enforcement officers and agencies seems to us to be precluded
by the Supreme Court's dismissal of M.S.T.A.'s appeal.14
Similarly, a facial invalidity claim based on an alleged lack
of narrow tailoring is likewise precluded. We so conclude
not alone from the Law Court's own ruling in MSTA, which
expressly found both a compelling state interest and the
requisite narrow tailoring, but from express language in the
jurisdictional statement submitted by M.S.T.A. when appealing
to the Supreme Court from the Law Court's ruling. In that
statement, as already noted, the terms of the challenged Act
were set forth and an appeal on First and Fourteenth
Amendment grounds noted. M.S.T.A. then went on to complain
that the Law Court had held that the Act "in fact interferes
with First Amendment freedoms, but that compelling state
interests exist which permit the interference." M.S.T.A.
characterized the Law Court's version of the compelling
interest as "the interest of the State in the image of its
14. As later sections of this opinion demonstrate, we do not
regard the Court's denial of appeal in MSTA as barring our
consideration of claims attacking the sufficiency of the
State's compelling interest based on underinclusiveness
(equal protection) grounds.
-24-
law enforcement officers" and as "an intangible harm" allowed
in the Law Court to "deprive law enforcement associations,
and others, of protected First Amendment rights." M.S.T.A.
urged summary reversal because the "Law Court, absent any
evidence of actual or perceived coercion, apparently assumed
the compelling state interest into existence based upon
comments in the legislative history of the Act." M.S.T.A.
urged the Supreme Court if unwilling to reverse the Law
Court summarily to question counsel as to "the broad sweep
of the State's alleged compelling interest, together with the
appellant's assertion of the 'overbreadth doctrine.'" These
statements were prefaced by mention of the trial court's
finding that appellants had not engaged "in any form of
coercion or otherwise used their official position to solicit
advertising," a comment supportive of other remarks that the
Law Court had rested the State's compelling interest solely
on a need to conserve the "image" of its law enforcement
officers.
We think the above statements necessarily alerted
the Supreme Court to a claim of "overbreadth" based on the
notion that the Act's burdens on speech went beyond any truly
compelling state interest.
The challenged language of the present Act is
virtually identical in all material respects to the statute
found to be constitutional in MSTA. The key difference
-25-
between the current version of the Act, Me. Rev. Stat. Ann.
tit. 25, 3702-A, and the prior version of the Act, Me. Rev.
Stat. Ann. tit. 25, 3702, is that the current version now
provides that the prohibition on solicitation applies only
when solicitation "tangibly" benefits any law enforcement
officer, agency or association. This clarifies that police
solicitation for charitable causes unrelated to law
enforcement is not barred. Arguably, under the old statute
such solicitation was barred because it intangibly benefited
law enforcement by providing good will. Even assuming,
however, that the addition of the word "tangible" to modify
"benefits" in the present version worked a substantive change
in the law, that change only narrowed the breadth of the
Act's prohibition. Because 3702-A is even narrower than
the former 3702, the Supreme Court's summary dismissal of
MSTA, in which the Supreme Court necessarily rejected the
overbreadth and compelling interest challenges described
above, is binding precedent on whether 3702-A is overbroad
in the senses just discussed. See Glen Theatre, Inc. v.
Pearson, 802 F.2d 287, 290 (7th Cir. 1986) (if issue of
overbreadth is raised in jurisdictional statement, Supreme
Court's summary affirmance binds lower courts on that issue).
C. Underinclusiveness
-26-
While the MSTA appeal foreclosed present
overbreadth claims, appellants raise other claims which in
our view, the appeal has not foreclosed. We turn to these.
Facial First Amendment challenge is allowed to
statutes burdening speech that are so grossly underinclusive
as to cast doubt on the compelling nature of the state's
asserted interest. See R.A.V., 112 S. Ct. at 2547 (facially
invalidating ordinance that applied only to "fighting words"
that provoke violence "on the basis of race, color, creed,
religion or gender."); Florida Star v. B.J.F., 491 U.S. 524,
541-42 (1989) (Scalia, J., concurring) ("a law cannot be
regarded as protecting an interest 'of the highest order,'
and thus justifying a restriction on truthful speech, when it
leaves appreciable damage to that supposedly vital interest
unprohibited."); FCC v. League of Women Voters, 468 U.S. 364,
396 (1984) ("patent . . . underinclusiveness . . . undermines
the likelihood of a genuine [governmental] interest").15
As already discussed, the jurisdictional statement
in MSTA required the Supreme Court to consider whether the
15. A statute's underinclusiveness also indicates that the
government is not, in fact, serving the proffered compelling
interest. Florida Star, 491 U.S. at 540 ("facial
underinclusiveness of [statute] raises serious doubts about
whether Florida is, in fact, serving, with this statute, the
significant interests which [the State] invokes"); Women
Voters, 468 U.S. at 396 (because statute is underinclusive,
it "provides only ineffective or remote support for the
government's purpose"); Carey v. Brown, 447 U.S. 455, 465
(1980) ("nothing in the content-based labor-nonlabor
distinction has any bearing whatsoever on privacy").
-27-
Maine Act was supported by a compelling state interest.
Plaintiffs in the present case, however, assert that even if
the version of the Maine Act upheld by the Maine Law Court in
MSTA was supported by a compelling state interest, the
Supreme Court's summary dismissal of MSTA is no longer
binding precedent because the Maine Legislature has enacted
and has later repealed or let expire, various exceptions to
the Act's prohibition on solicitation that benefits law
enforcement. According to plaintiffs, the Legislature's
former enactment of these now-defunct exceptions permanently
undermined the Act's compelling interest.16 We disagree.
We know of no precedent for invalidating a statute based on
repealed exceptions: the Maine legislature, having restored
the statute something close to its original form, is entitled
to the same respect afforded to its original judgment.
While we reject plaintiffs' assertion that repealed
exceptions to the Act prevent Maine from ever again having a
compelling interest in prohibiting solicitation beneficial to
law enforcement, we take more seriously plaintiffs' further
contention that extant exceptions to the Act undermine the
State's assertion of a compelling state interest. Plaintiffs
identify three such exceptions, said to make the Act
unconstitutionally underinclusive: (1) The Act permits
16. As the magistrate judge wrote in his Recommended
Decision: "the proverbial egg cannot be unscrambled."
-28-
solicitations that intangibly benefit the police, e.g.,
solicitations by police officers for a public charity; (2)
the Act permits solicitations that benefit state officials
other than law enforcement officers; and (3) The Act permits
solicitations on behalf of law enforcement officers
campaigning for public office. While the latter distinctions
were present in the statute upheld in MSTA, the issue of the
Act's alleged underinclusiveness and its effect on the
compelling state interest supporting the Act were not raised
in either the Maine courts or in the jurisdictional statement
to the Supreme Court.17 Because the issue of the Act's
purported underinclusiveness was not presented to the Supreme
Court in MSTA, the Supreme Court's summary dismissal of that
case is not binding precedent on this issue. See Illinois
State Bd. of Elections, 440 U.S. at 183 ("Questions which
merely lurk in the record are not resolved, and no resolution
of them may be inferred.") (internal quotation omitted).
The State contends that the Act's purported
underinclusiveness does not render it unconstitutional. The
State relies, as did the district court, on the Hatch Act
cases, see, e.g., United States Civil Serv. Comm'n v.
17. While the Maine Law Court in MSTA did consider the
repealed Act's exception for game wardens, finding no
justification for differentiating in treatment between
M.S.T.A. and the game wardens, the statutory exceptions
challenged by plaintiffs here either were not yet enacted
when the Supreme Court summarily dismissed MSTA, or were not
challenged in that case.
-29-
National Ass'n of Letter Carriers, 413 U.S. 548, 556 (1973);
United Pub. Workers v. Mitchell, 330 U.S. 75, 100 (1947), for
the proposition that a legislature need not address an entire
social problem at one time. In the Hatch Act cases, the
Supreme Court upheld restrictions on partisan political
activity by civil servants even though other types of
political activity were not similarly restricted. But, while
helpful to some degree, the Hatch Act cases are not on all
fours. The Hatch Act cases rest upon the notion that the
government has special rights to restrict partisan political
speech of its employees and on its property. Women Voters,
468 U.S. at 401 n.27; see International Soc. for Krishna
Consciousness, Inc. v. Lee, 112 S. Ct. 2701, 2705 ("Where the
government is acting as a proprietor, managing its internal
operations, rather than acting as a lawmaker with power to
regulate or license, its action will not be subjected to the
heightened review to which its actions as a lawmaker may be
subject."). The Hatch Act cases are inapplicable to the
question of whether a statute is unconstitutionally
underinclusive when that statute, like the Maine Act at issue
here, restricts the speech of the general citizenry as well
as that of public employees.
When a content-based regulation restricts both the
speech of public employees and the general citizenry, it
"simply cannot be defended on the ground that partial
-30-
prohibitions may effect partial relief." Florida Star, 491
U.S. at 540. The Supreme Court explained why a statute's
content-based underinclusiveness is objectionable when First
Amendment rights are at stake, in Erznoznik v. Jacksonville,
422 U.S. 205 (1975):
This Court frequently has upheld
underinclusive classifications on the sound theory
that a legislature may deal with one part of a
problem without addressing all of it. See, e.g.,
Williamson v. Lee Optical Co., 348 U.S. 483, 488-
489 (1955). This presumption of statutory
validity, however, has less force when a
classification turns on the subject matter of
expression. "[A]bove all else, the First Amendment
means that government has no power to restrict
expression because of its message, its ideas, its
subject matter, or its content." Police Dept. of
Chicago v. Mosley, 408 U.S., at 95. Thus, "under
the Equal Protection Clause, not to mention the
First Amendment itself," id., at 96, even a traffic
regulation cannot discriminate on the basis of
content unless there are clear reasons for the
distinctions.
Id. at 215.
In order to avoid the conclusion under either the
Equal Protection Clause or the First Amendment18 that the
18. When reviewing content-based distinctions, the Supreme
Court has not differentiated the Equal Protection Clause from
the First Amendment. R.A.V., 112 S. Ct. at 2544 n.4 ("This
Court . . . has occasionally fused the First Amendment into
the Equal Protection Clause"); Burson, 112 S. Ct. at 1850-52
n.3 ("Under either a free-speech or equal-protection theory,
a content-based regulation of political speech in a public
forum is valid only if it can survive strict scrutiny.");
Erznoznik, 422 U.S. at 215 (holding that under either the
First Amendment or the Equal Protection Clause, there must be
"clear reasons" for content-based distinctions); Mosley, 408
U.S. 92, 95 (1972) ("Of course, the equal protection claim in
this case is closely intertwined with First Amendment
interests."); Harwin v. Goleta Water Dist., 953 F.2d 488, 490
-31-
Maine Act is unconstitutionally underinclusive, the State
must be able to point to clear reasons for the distinctions
drawn by the Act. See Austin v. Michigan State Chamber of
Commerce, 494 U.S. 652, 666 (1990) (the press's "unique
societal role" provides a "compelling reason for the state to
exempt media corporations from the scope of political
expenditure limitations"); Mosley, 408 U.S. at 100 (ordinance
prohibiting all peaceful picketing other than labor picketing
is unconstitutional absent showing that the former is
"clearly more disruptive"); see also Cincinnati v. Discovery
Network, Inc., 113 S. Ct. 1505, 1524 (1993) (Rehnquist, C.J.,
dissenting) (in noncommercial speech cases, the Court has
refused to accept distinctions between restricted and
nonrestricted speech when those distinctions bear "no
relationship to the interests asserted for regulating the
speech in the first place"); Fantasy Book Shop, Inc. v. City
of Boston, 652 F.2d 1115, 1121 n.6 (1st Cir. 1981) (rejecting
challenge of facial underinclusiveness because "legislature
could reasonably conclude that non-commercial amusements
present sufficiently less likelihood of the harms sought to
n.3 (9th Cir. 1991) ("Under either [equal protection or first
amendment] analysis, . . . independent justification of the
discrimination is required."); News America Pub. v. FCC, 844
F.2d 800, 804 (D.C. Cir. 1988) (claim of underinclusiveness
"lies at the intersection of the First Amendment's protection
of free speech and the Equal Protection Clause's requirement
that government afford similar treatment to similarly
situated persons").
-32-
be prevented to justify their differential treatment"). The
State's justifications for the Act's differential treatment
must be "carefully scrutinized." Carey, 447 U.S. at 461-62.
Although the case at hand is close, we believe the State has
articulated satisfactory explanations for the Act's
differential treatment.
To justify the "exception" in 3702-A permitting
solicitations that only intangibly benefit the police, the
State relies principally upon the following statement of
legislative intent included in the 1991 amendments to the
Act:
The Legislature . . . finds that
solicitations [by police] for charitable
purposes unrelated to law enforcement
activities are not inherently coercive
because the person solicited will know
that law enforcement agencies or officers
do not gain any tangible benefit and,
consequently, will not be concerned with
who donates.
Priv. & Spec. Laws 1991, Ch. 510, 5. We find this to be a
supportable basis for the distinction. It is true that the
State has provided no purported empirical evidence to back up
that finding.19 The district court, in upholding the
19. Plaintiffs contend that by simply asserting without
empirical evidence that solicitations tangibly benefiting
police are inherently coercive, the State has:
taken the effect of the statute and posited that
effect as the State's interest. If accepted, this
sort of circular defense can sidestep judicial
review of almost any statute, because it makes all
statutes look narrowly tailored. . . . "Every
-33-
constitutionality of the Act, stated that it would overlook
the lack of empirical evidence and defer to the "legislative
premise that these types of fundraising are different," since
whether there is as much coercion in solicitations for
charitable causes as for law enforcement purposes is a matter
"on which reasonable minds may differ."
We agree that the lack of empirical evidence is not
fatal. See Burson, 112 S. Ct. at 1856 (noting the difficulty
of "isolat[ing] the exact effect of [laws restricting certain
speech at polling places] on voter intimidation and election
fraud" and suggesting that "[s]uccessful voter intimidation
and election fraud is successful precisely because it is
difficult to detect"); Frisby v. Schultz, 487 U.S. 434, 486
content-based discrimination could be upheld by
simply observing that the State is anxious to
regulate the designated speech."
Simon & Schuster, 112 S. Ct. at 510 (quoting Simon &
Schuster, Inc. v. Fischetti, 916 F.2d 777, 785 (2d Cir. 1990)
(Newman, J., dissenting)).
Plaintiffs' reliance on Simon & Schuster is misplaced.
In that case, New York argued that its Son-of-Sam law was
supported by a compelling interest because it "ensur[ed] that
criminals do not profit from story-telling about their crimes
before their victims have a meaningful opportunity to be
compensated for their injuries." The Court rejected New
York's argument that this narrow interest was compelling
because the State could not explain why it "should have any
greater interest in compensating victims from the proceeds of
such 'storytelling' than from any of the criminal's other
assets." Id. By contrast, the State of Maine can and does
explain why solicitations by police personnel for charitable
purposes unrelated to law enforcement are not as inherently
coercive as solicitations that tangibly benefit law
enforcement officers, agencies or associations.
-34-
(1988) (noting that targeted residential picketing is
"inherently" intrusive of residential property). While the
Supreme Court has occasionally cited the lack of empirical
evidence as a further ground for striking down a restriction
on speech, see, e.g., Peel v. Attorney Registration &
Disciplinary Comm'n, 496 U.S. 91, 106 (1990) (plurality)
("Given the complete absence of any evidence of deception,"
Court rejects state's contention that attorney's advertising
was actually misleading), the Court has never laid down a
categorical rule requiring that empirical evidence be shown
to support every statutory restriction on speech.20 A
categorical requirement would be unwise, we think, given the
difficulty of securing definitive empirical evidence for
unquantifiable issues of this sort.
The Maine Legislature's conclusion seems
intuitively reasonable that solicitations even when made
by law enforcement personnel for charitable purposes
unrelated to law enforcement are not as inherently coercive
as solicitations that tangibly benefit law enforcement
officers, agencies or associations. Persons approached to
contribute funds for the tangible benefit of law enforcement
personnel, agencies or associations might well believe that
20. The Court has, however, required "substantial support in
the record or findings" when "rights of political expression
and association" are concerned. E.g., In re Primus, 436 U.S.
412, 434 n.8 (1978).
-35-
the officers would be more deeply offended by a refusal than
by rejection of officers' requests for a donation to a
charity entirely unrelated to law enforcement. The
Legislature "could reasonably conclude that [charitable
solicitations] present sufficiently less likelihood of the
harms sought to be prevented to justify their differential
treatment." See Fantasy Book Shop, Inc., 652 F.2d at 1121
n.6.
Plaintiffs' contention with respect to the Act's
distinction between law enforcement officials and other types
of public servants fares no better. The police occupy a
unique role. They are empowered to enforce a wide array of
criminal laws and to protect the property and lives of the
general citizenry. To do this they are armed, given enhanced
arrest powers, and given access to information networks and
other tools denied to most citizens. Police necessarily have
considerable on-the-spot authority of a discretionary sort
whether to give or withhold a traffic ticket, to make an
arrest, or to notice or disregard a violation. While even-
handed treatment is the ideal, officers may, and sometimes
do, enforce laws in a less than neutral manner. For this
reason, citizens and local businesses will try to stay on the
good side of police, fearing whether or not correctly
that a miffed police officer and his associates will
retaliate, or will turn their backs when most needed. Hence,
-36-
the Maine Legislature could reasonably conclude that police
solicitation has a special potential for coercion not present
in solicitation by other officials.
Plaintiffs' third example of the Act's purported
underinclusiveness the exception for solicitations on
behalf of law enforcement officers running for public office
is also unavailing. As the district court properly
recognized, law enforcement officers who run for electoral
office, primarily county sheriffs, themselves have separate
First Amendment interests. See Burson, 112 S. Ct. at 1850("'the First Amendment 'has its fullest and most urgent
application' to speech uttered during a campaign for
political office'") (quoting Eu v. San Francisco Democratic
Comm., 489 U.S. 214, 223 (1989) (quoting Monitor Patriot Co.
v. Roy, 401 U.S. 265, 272 (1971))). A rule prohibiting
"campaign fundraising by law enforcement personnel would
effectively disqualify them from an office such as sheriff
for, unless they were independently wealthy, they could
easily be outspent by opponents who were not in law
enforcement." Auburn II, 798 F. Supp. at 827. We,
therefore, agree with the district court that the First
Amendment right of law enforcement officers to engage in
campaign speech provides a substantial justification for the
Act's exemption of such speech from its prohibition on
-37-
solicitation.21 See Austin, 494 U.S. at 668 (media
exemption from prohibition on corporations using general
treasury funds to support state candidate elections "ensures
that the Act does not hinder or prevent the institutional
press from reporting on, and publishing editorials about,
newsworthy events").
As the State can furnish "clear reasons" for the
asserted exemptions from the Act's prohibitions, and the
reasons are not only clear but rational, we hold that the
Maine Act is not unconstitutionally underinclusive.
D. As Applied Challenge
Plaintiffs argue that the Act is unconstitutional
as applied to the activities of plaintiff R.H. McKnight Co.,
a professional fundraiser and publisher of law enforcement
21. To the extent that coercion is caused by police
solicitations for campaign fundraising, the State has
attempted to minimize it by imposing certain restrictions on
such solicitations. For example, Me. Rev. Stat. Ann. tit.
25, 3711 prohibits solicitations by law enforcement
officers while in uniform. Section 3712 prohibits any law
enforcement officer running for a nonpartisan public office
from soliciting on his own behalf. Me. Rev. Stat. Ann. tit.
25, 3712. Section 3713 prohibits the use of coercion in
solicitations. Me. Rev. Stat. Ann. tit. 25, 3713. Section
3714 makes a violation of these restrictions a Class E crime.
Me. Rev. Stat. Ann. tit. 25, 3714. Other restrictions on
law enforcement officers running for elective office are
contained in statute, union contracts and departmental
regulations. See Me. Rev. Stat. Ann. tit. 30-A, 355
(Pamph. 1991) (regulating political activity of sheriffs and
deputy sheriffs). Together, these restrictions serve as an
effective accommodation of the First Amendment right of the
police to engage in political speech with the State's
interest in preventing coercion inherent in police
solicitation.
-38-
magazines; plaintiff Charles Underwood, a private citizen who
wishes to advertise in such magazines;22 and the plaintiff
law enforcement association which wishes to disseminate the
magazines.23 Plaintiffs contend that the sale of
advertising in law enforcement publications like the "Maine
State Trooper" is a noncoercive undertaking. Plaintiffs
point specifically to the allegedly noncoercive nature of the
system of solicitation designed by R.H. McKnight Co., in
which telephone solicitors supposedly make it clear that they
are not police officers, and the names of persons who do not
purchase advertisements are not directly released to the
sponsoring law enforcement organization.24
22. We note that plaintiff Underwood can raise no "as
applied" challenge with regard to his right to advertise in
the police magazines, as the statute does not prohibit him
from advertising but from being solicited to advertise. As
such, his claim is rightly considered along with those of
plaintiff R.H. McKnight Co. and the plaintiff law enforcement
association.
23. It is debatable whether plaintiffs can bring an as-
applied challenge in the context of a pre-enforcement
declaratory judgment action. See United States v. Gaudreau,
860 F.2d 357, 360-61 (10th Cir. 1988) ("In a declaratory
judgment action no one has been charged so the court cannot
evaluate the statute as applied."). Rather than embark upon
technicalities, however, we prefer to consider their
arguments on the merits.
24. A sample script utilized by R.H. McKnight telephone
solicitors states the following:
AUBURN CONSENT FORM/SALES PRESENTATION
-39-
Hello, . This is calling
on behalf of the Auburn Police I.B.P.O. 414.
I am working for the publishing company, and,
as you may already know, we are going to be
producing the Auburn Police I.B.P.O. # 414
Yearbook. This Yearbook will be of the highest
quality with a full 8 1/2 x 11, four-color cover,
and will contain pictures of the officers in action
here in Auburn as well as articles of interest to
the general public.
We anticipate that our publication will be the
best in the Auburn-Lewiston area. We will be
producing 750 copies of our publication and giving
them out free of charge to the public, libraries or
business friends, as well as the officers of
Auburn. Funds derived from the sale of advertising
will go to scholarship fund (sic), as well as to
improve law enforcement and the working conditions
of the officers right here in Auburn.
May I tell you the advertising prices?
In addition, each telephone solicitor must sign the
following agreement before calling on behalf of a police
organization:
CONSENT
I agree to adhere to the above sales
presentation for the Auburn Police International
Brotherhood of Police Officers Local # 414. I will
not state or imply that I am an Auburn Police
Officer -- only that I am calling on behalf of:
(sic) and that I work for the publishing company.
Affidavit of R.H. McKnight, Appendix 1.
Finally, although the names of those who do not purchase
advertising are not directly disclosed to the police
organization, a disclosure and thank you is mailed to each
advertiser in the name of the police organization:
Please make your check payable to the Auburn Police
I.B.P.O. Local # 414 and send with your ad copy,
letterhead, or business card to: P.O. Box 3291,
Auburn, Maine 04212. The International
Brotherhood of Police Officers Local # 414 is a
non-profit organization, not a charitable
organization. Therefore, your payment can be
-40-
Contrary to plaintiffs' view, we think the Maine
Legislature could believe that solicitation of advertisements
to benefit law enforcement is inherently coercive because the
persons solicited will experience pressure to purchase an
advertisement so that their support of law enforcement will
become known to police or so that their failure to buy an
advertisement will not be noticed. The Legislature could
reasonably doubt that the solicitations would become
noncoercive merely because the names of those who do not
purchase advertisements were promised not to be disclosed to
the police. The advertisements will be public. Accordingly,
law enforcement officers will be aware of who contributed
and, by the absence of advertisements, of who did not
contribute. Moreover, those solicited may not believe, even
if they are assured, that their names will not be
communicated. The Law Court in MSTA was of the view that,
quite apart from actual coercion, the state's legitimate
interest included maintaining the good public reputation of
deducted as an advertising expense only. Thank you
for your support. With your help we are able to go
forward. The telephone call you received was from
a representative of the publishing company and not
a member of the Police Department. Officers do not
elect to solicit as it may unduly influence your
decision. If you have any questions, please don't
hesitate to ask.
-41-
its police. We are not persuaded that plaintiffs'
alternatives would necessarily answer that concern.
Because plaintiffs' proposed solicitations remain
inherently coercive, or at least do not remove the appearance
of coercion and favoritism, we reject plaintiffs' argument
that the Act is unconstitutional as applied.
E. Prior Restraint
Any violation of the Act's prohibition on
solicitation that tangibly benefits law enforcement is
considered a violation of the Maine Unfair Trade Practices
Act. Me. Rev. Stat. tit. 25, 3702-A. The Act, therefore,
can be enforced either through civil penalties or injunctive
relief. Finding that enforcement of the Act through
injunctive relief would constitute an impermissible prior
restraint, the district court declared the injunctive relief
provision of the Act to be unconstitutional.25 While the
25. Plaintiffs actually argued to the district court, and to
this court, that the Act's categorical prohibition on
solicitation, in and of itself, constitutes an
unconstitutional prior restraint. According to plaintiffs,
the Act constitutes a prior restraint because it "silences by
fiat an entire category of charitable solicitation." Auburn
I, 756 F. Supp. at 618. In this respect, argue plaintiffs,
the Act is "a form of censorship; it prejudges rather than
punishes after the fact." Id. Plaintiffs further contend
that barring solicitation of funds is a particularly
effective prior restraint because law enforcement agencies
will not have the financial resources to spread their message
to the general public.
The district court correctly rejected plaintiffs'
arguments that the entire Act should be invalidated as a
prior restraint. Under plaintiffs' analysis, almost any
regulation of speech would be considered a prior restraint
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district court's concern that injunctions are rarely
tolerated in the First Amendment context is understandable,
we think the court acted improperly in invalidating the Act's
injunctive relief provision on its face.
A prior restraint is a government regulation that
limits or conditions in advance the exercise of protected
First Amendment activity. Fantasy Book Shop, Inc., 652 F.2d
at 1120. Although the classic form of prior restraint
involves an administrative licensing scheme, see Jews for
Jesus, Inc. v. Massachusetts Bay Transp. Auth., 984, F.2d
1319, 1326-27 (1st Cir. 1993), a judicial injunction that
prohibits speech prior to a determination that the speech is
unprotected also constitutes a prior restraint. See Near v.
Minnesota, 283 U.S. 697 (1931). Any system of prior
restraints of speech "comes to this Court bearing a heavy
presumption against its constitutional validity."
Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558
(1975); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70
(1963); New York Times Co. v. United States, 403 U.S. 713,
since most restrictions on speech will have consequences on
later speech. While the Supreme Court has cautioned that
"[b]road prophylactic rules in the area of free expression
are suspect," Riley, 487 U.S. at 801, the Court has never
said that a categorical ban on speech is a per se prior
restraint. Instead, the Court has, for the most part,
carefully limited the prior restraint doctrine to
administrative and judicial orders prohibiting speech before
it is actually uttered.
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714 (1971); Organization for a Better Austin v. Keefe, 402
U.S. 415, 419 (1971).
The presumption against the constitutionality of
prior restraints is heavier than that against restrictions on
speech imposed by subsequent penalties. Vance v. Universal
Amusement Co., 445 U.S. 308, 315-16 (1980); Southeastern
Promotions Ltd., 420 U.S. at 558-59; New York Times Co., 403
U.S. at 733 (White, J., concurring). The Supreme Court has
explained the rationale behind this heavy presumption against
prior restraints as follows:
Behind the distinction is a theory deeply
etched in our law: a free society
prefers to punish the few who abuse
rights of speech after they break the law
than to throttle them and all others
beforehand. It is always difficult to
know in advance what an individual will
say, and the line between legitimate and
illegitimate speech is often so finely
drawn that the risks of freewheeling
censorship are formidable.
Southeastern Promotions Ltd., 420 U.S. at 559.
The Supreme Court, however, "has never held that
all injunctions are impermissible." Pittsburgh Press Co. v.
Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 390
(1973). "The special vice of a prior restraint is that
communication will be suppressed, either directly or by
inducing excessive caution in the speaker, before an adequate
determination that it is unprotected by the First Amendment."
Id. An injunction that is narrowly tailored, based upon a
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continuing course of repetitive speech, and granted only
after a final adjudication on the merits that the speech is
unprotected does not constitute an unlawful prior restraint.
See id.; Securities & Exchange Comm'n v. Wall St. Publ.
Institute, Inc., 851 F.2d 365, 370 (D.C. Cir. 1988). The
Maine courts may interpret the statute or apply it so as to
avoid the issuance of ex parte restraining orders or even
temporary injunctions, using their equitable powers only
following full hearings and final adjudications.
Because plaintiffs brought this action seeking pre-
enforcement declaratory relief, there is, at present, no
injunction restraining solicitation activities. Without
having before us the concrete example of a particular
injunction, it is difficult, if not impossible, for us to
determine whether the prior restraint doctrine has or will be
violated.26 See American Library Ass'n v. Barr, 956 F.2d
26. Injunctions, in this respect, are distinguishable from
administrative licensing schemes that constitute prior
restraints. "[W]hen a licensing statute vests unbridled
discretion in a government official over whether to permit or
deny expressive activity, one who is subject to the law may
challenge it facially without the necessity of first applying
for, and being denied, a license." Lakewood v. Plain Dealer
Pub. Co., 486 U.S. 750, 755-56 (1988); see, e.g., FW/PBS,
Inc. v. Dallas, 493 U.S. 215 (1990); Freedman v. Maryland,
380 U.S. 51, 56 (1965). In such cases, it is the very
existence of unbridled discretion that is constitutionally
unacceptable because it "intimidates parties into censoring
their own speech, even if the discretion and power are never
actually abused." Lakewood, 486 U.S. at 756. By contrast,
the statutory authority to issue an injunction does not
create the same danger.
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1178, 1190 (D.C. Cir. 1992) ("Whether use forfeiture
constituted a restraint on speech, prior or otherwise, would
seem to depend on the nature of the property and the
circumstances of the offender, about which we have no
information in this case."). We choose to let stand the
Act's provision authorizing enforcement through injunctive
relief and leave for another day the determination whether a
specific injunction should the State decide to proceed in
such a fashion constitutes an unlawful prior restraint.
III.
We hold that Maine's Solicitation by Law
Enforcement Officers Act, Me. Rev. Stat. Ann. tit. 25,
3702-A, does not violate the First or the Fourteenth
Amendments of the United States Constitution. The district
court's determination that Me. Rev. Stat. Ann. tit. 25,
3702-A is not unconstitutionally overbroad or underinclusive
is affirmed. The court's declaration that the Act's
provision for enforcement through injunctive relief is
unconstitutional is reversed.
Costs to the State of Maine.
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APPENDIX
STATE OF MAINE
An Act to Amend the Laws Concerning Solicitation by
Law Enforcement Officers
Be it enacted by the People of the State of Maine as follows:
. . . .
Sec. 5. Legislative intent. It is the intent of
Sec. 5. Legislative intent.
the Legislature to repeal all exceptions to the prohibition
against solicitation by law enforcement agencies, officers
and associations. The Legislature finds that the various
exceptions to the prohibition enacted over the years, in
fact, have led to inherently coercive solicitations and that
those exceptions ultimately undermine the integrity of law
enforcement. As a consequence, the Legislature repeals these
exceptions and reenacts the prohibition on solicitations by
or on behalf of law enforcement. The Legislature further
finds that solicitations for charitable purposes unrelated to
law enforcement activities are not inherently coercive
because the person solicited will know that law enforcement
agencies or officers do not gain any tangible benefit and,
consequently will not be concerned with who donates. This
Act clarifies and reaffirms that the primary and compelling
purpose underlying the laws governing solicitation by law
enforcement officers is to eliminate the coercion that is
inherent in solicitations by and on behalf of law enforcement
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officers by prohibiting such solicitations. When a law
enforcement officer solicits from a prospective donor, the
donor may not feel totally free to reject the request in
light of the officer's position. This occurs regardless of
the subjective intent of the officer to coerce the
prospective donor. In addition to the effect on the
prospective donor, the appearance of the transaction to 3rd
persons may undermine public confidence in the integrity of
the public office. At least the appearance of coercion
inheres in every solicitation that tangibly benefits law
enforcement agents and the appearance undermines the
integrity of the office. The Legislature finds that the
State has a compelling interest in preserving the integrity
of law enforcement officers and finds that regulating all law
enforcement solicitations that tangibly benefit law
enforcement is necessary to promote this compelling state
interest.
[Priv. & Spec. Laws 1991, Ch. 510.]
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