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Institute for Free Speech v. Ravnsborg

United States District Court, D. South Dakota, Central Division

September 26, 2019




         Plaintiff Institute for Free Speech (IFS) on October 8, 2018, filed a verified complaint against South Dakota's Attorney General and Secretary of State claiming that IFS wanted to publish on its website an analysis of two South Dakota ballot measures up for vote in 2018 and that two South Dakota statutes-SDCL §§ 12-27-1(11) and 12-27-16-impeded that publication and in turn violated IFS's rights under the First Amendment of the United States Constitution. Doc. 1. IFS sought a declaration that its conduct was not regulable under these statutes and that the statutes were unconstitutional. IFS on October 9, 2018, moved for a temporary restraining order and a preliminary injunction enjoining South Dakota from enforcing the statutes against it, Doc. 4. This Court coordinated with counsel for IFS and the Defendants to schedule and hold a hearing on October 12, 2018, on IFS's request for injunctive relief. Defendants took the position that the statutes did not apply to what IFS was proposing to do. Doc. 21 at 5. IFS represented that its mission was defending the First Amendment and that "IFS's publication will not urge passage or defeat of either measure" and characterized its publications as "academic works." Doc. 1 at ¶¶2, 12, 18. On October 16, 2018, this Court issued an Opinion and Order Concerning Motion for Injunctive Relief granting IFS 's motion for a preliminary injunction "such that Defendants are enjoined from using SDCL § 12-27-16 to prosecute IFS for posting its analysis [of the ballot measures] to its own website and issuing a press release of the analysis to South Dakota media outlets and that IFS is not bound to comply with § 12-27-16 so long as its analysis is what IFS represented it to be." Doc. 21 at 13.

         Little did this Court realize at the time that IFS's principal goal was not to publish an "academic work" that "will not urge passage or defeat of either [ballot] measure, " as IFS had represented. The day after this Court's grant of a preliminary injunction, IFS published an article on its website that described one of the ballot measures as "an outright ban on speech" and as being "as unconstitutional as it is unwise."[1] Doc. 44-1 at 2-3. IFS's publication described the other measure to "infringe on important First Amendment rights" and as creating "a recipe for a powerful but rudderless agency." Doc. 44-1 at 8, 11. Although IFS's publication did not expressly call for voters to vote against the ballot initiatives, a fair reading of the publication is that it was designed to advocate against the ballot measures, or to try to bring IFS's activity within SDCL § 12-27-16 to allow IFS to continue its challenge to that statute to this Court, or to do both.

         IFS after the election filed an Amended Verified Complaint, again alleging that §§ 12-27- 1(11) and 12-27-16 are unconstitutional. Doc. 27. Somewhat schizophrenically, Defendants' < answer continued to maintain that IFS will not be prosecuted under SDCL § 12-27-16, Doc. 28 at ¶ 6, but also objected to IFS's characterization of its published analysis "as not.urging passage or defeat" of the ballot measures because "[a] review of the analysis shows the publication to urge the defeat of those measures, " Doc. 28 at ¶ 4. Defendants have instituted no enforcement action of any kind against IFS, and indeed this Court's preliminary injunction has remained in place.

         IFS then filed a motion for judgment on the pleadings or alternatively for summary judgment, Doc. 32, and the Defendants filed a cross-motion for summary judgment, Doc. 48. This Court held oral argument to probe whether IFS has standing to make the challenge it raises and whether the statutory language with which IFS primarily takes issue-§ 12-27-16(1)(c)-even applies to IFS. Because IFS does not have standing at this time, this Court denies IFS's motion for summary judgment and defers ruling on Defendants' motion for summary judgment pending information on whether Defendants contest entry of a permanent injunction.

         I. Procedural History, Facts, and Claims

         IFS is a Virginia-headquartered 501(c)(3) entity which purports to be a nonpartisan, educational charity dedicated to defending the First Amendment rights of free speech and press. Doc. 1 at ¶ 12; Doc. 27 at ¶ 12; Doc. 44-1 at 2 n.7, "13. Since its founding in 20Q5, IFS, formerly known as the Center for Competitive Politics, Doc. 44-1 at 2 n.7, has focused its efforts on campaign finance and other compelled disclosure proposals and laws, Doc. 34 at ¶ 4; Doc. 43 at ¶4. IFS boasts in.its publication on the South Dakota ballot measures of having "secured judgments in federal court striking down laws in Colorado, Utah, and South Dakota" and being "currently involved in litigation against California, Connecticut, Missouri, Massachusetts, Tennessee and the federal government." Doc. 44-1 at 2 n.7

         This case began ostensibly because IFS wanted to publish an analysis of two measures on . South Dakota's 20l'8 general election ballot-proposed Constitutional Amendment W[2] (Amendment W) and Initiated Measure 24[3] (IM 24). Doc. 1 at ¶ 6; Doc. 34 at ¶ 6; Doc. 43 at ¶ 6. IFS filed this suit in October 2018 claiming that it was concerned that its analysis would fall within . South Dakota statutes regulating "independent communication expenditures." Doc. 1 at ¶ 6; Doc. 34 at ¶ 6; Doc. 43 at¶ 6. One of the two statutes IFS claims to be unconstitutional is SDCL § 12- 27-1-(11), which defines an independent communication expenditure as:

an expenditure, including the payment of money or exchange of other valuable consideration or promise, made by a person, entity, or political committee for a communication concerning a candidate or a ballot question which is not made to, controlled by, coordinated with, requested by, or made upon consultation with that candidate, political committee, or agent of a candidate or political committee. The term does not include administration and solicitation of any contribution for a political action committee established by an entity and associated expenses, nor the use of an entity's real or personal property located on its business premises for such purposes. The term does not include any communication by a person made in the regular course and scope of the person's business or ministry or any communication made by a membership organization solely to any member of the organization and the member's family[.]

SDCL § 12-27-1(11). IFS contends § 12-27-11(1) is unconstitutionally vague in seeking to regulate campaign expenditures not associated with a candidate or political committee extending to communications "concerning a candidate or a ballot question."

         The other statute IFS claims to be unconstitutional is SDCL § 12-27-16. Section 12-27-16 establishes disclaimer and disclosure requirements for communications funded by independent communication expenditures.[4] Section 12-27-16(1) contains the disclaimer requirements. IFS's briefing makes clear that its constitutional challenge is to § 12-27-16(1)(c), requiring those making more than $ 100 in independent communication expenditures to disclose their top five contributors. Section 12-27-16(1) in its entirety provides:

(1) Any person or entity that makes a payment or promise of payment totaling more than one hundred dollars, [5] including donated goods or services for an independent communication expenditure that concerns a candidate, public office holder, ballot question, or political party shall append to or include in each communication a disclaimer that clearly and forthrightly:
(a) Identifies the person or entity making the independent communication expenditure for that communication;
(b) States the mailing address and website address, if applicable, of the person or entity; and
(c) If an independent expenditure is undertaken by an entity not including a candidate, public office holder, political party, or political committee, the following notation must be included: "Top Five Contributors, " including a listing of the names of the five persons making the largest contributions in aggregate to the entity during the twelve months preceding that communication. An independent communication expenditure made by a person or entity shall include the following: "This communication is independently funded and not made in consultation with any candidate, public office holder, or political committee."

SDCL§ 12-27-16(1). An initial violation of § 12-27-16(1) is a class 2 misdemeanor. Id. Asecond violation within a calendar year is a Class 1 misdemeanor, hi Subsections (2) through (5) of § 12-27-16 contain the disclosure requirements, stating that persons or entities making a communication that falls within subdivision (1) must disclose certain information to the state. § 12-27-16(2)-(5). Section 12-27-16's disclosure and - disclaimer requirements do not apply to all communications concerning a ballot question. The term "communication" does not include:

(a) Any news article, editorial endorsement, opinion or commentary writing, .or letter to the editor printed in a newspaper, magazine, flyer, pamphlet, or other periodical not owned or controlled by a candidate or political committee;
(b) Any editorial endorsement or opinion aired by a broadcast facility not owned or controlled by a candidate or political committee;
(c) Any communication by a person[6] made in the regular course and scope of the person's business or ministry or any communication made by a membership entity solely to members of the entity and the members' families;
(d) Any communication that refers to any candidate only as part of the popular name of a bill or statute; and
(e) Any communication used for the purpose of polling if the poll question does not expressly advocate for or against a candidate, public office holder, -ballot question, or political party.

SDCL § 12-27-16(6). Defendants originally thought § 12-27-16(6)(a) to exempt IFS's proposed analysis, but Defendants' position was based on what appeared to ...

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