National Organization for Marriage, Inc. v. Secretary, State of Florida

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 17, 2012
No. 11-14193
JOHN LEY
________________________
CLERK
D. C. Docket No. 1:10-cv-00192-SPM-GRJ
NATIONAL ORGANIZATION FOR MARRIAGE INC.,
Plaintiff – Appellant,
versus
SECRETARY, STATE OF FLORIDA,
JORGE L. CRUZ-BUSTILLO,
in his official capacity as chair of the
Florida Elections Commission,
et al.,
Defendants – Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(May 17, 2012)
Before WILSON, ANDERSON, and HIGGINBOTHAM,* Circuit Judges.
*
Honorable Patrick E. Higginbotham, United States Circuit Judge for the Fifth
Circuit, sitting by designation.
PER CURIAM:
We affirm essentially for the reasons indicated by the district court1 and for
the reasons that the First Circuit in National Organization for Marriage v. McKee,
649 F.3d 34 (1st Cir. 2011), cert. denied, 132 S. Ct. 1635 (2012), rejected the same
challenges. Furthermore, with respect to Plaintiff’s overbreadth challenge
regarding disclosure requirements, Part IV of the majority opinion in Citizens
United v. Federal Election Commission, 130 S. Ct. 876 (2010), is controlling.2
AFFIRMED.
1
We note that the district court, having rejected the as-applied vagueness challenge,
need not have addressed the facial vagueness challenge at all. See Holder v. Humanitarian Law
Project, 130 S. Ct. 2705, 2719 (2010) (explaining that “the rule that ‘a plaintiff who engages in
some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to
the conduct of others’ . . . makes no exception for conduct in the form of speech”) (quoting
Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 (1982) (alteration
omitted)); U.S. v. Di Pietro, 615 F.3d 1369, 1371-72 (11th Cir. 2010) (same).
2
At oral argument for the first time, Plaintiff attempted to draw a distinction
between the specific disclosure requirements at issue in Citizens United and those at issue in this
case. Even at oral argument Plaintiff made only conclusory assertions without pointing to any
specific disclosure requirement at issue here that was more onerous than those in Citizens
United. However, we need not examine that possibility, because any such argument has not been
preserved for appeal and is deemed abandoned. See Access Now, Inc. v. Southwest Airlines Co.,
385 F.3d 1324, 1330 (11th Cir. 2004). Indeed, any such argument would also be inconsistent
with Plaintiff’s concession, both in the district court and in its initial brief on appeal, that
Plaintiff was not challenging the disclosure requirements.
2