Stenson v. McLaughlin CV-00-514-JD 08/24/01
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Roger Stenson, Executive
Director and Member,
Citizens for Life, Inc., et a l .
v. Civil No. 00-514-JD
Opinion No. 2001 DNH 159
Philip McLaughlin, New Hampshire
Attorney General, et a l .
O R D E R
The plaintiffs. Citizens for Life, Inc. and its Executive
Director, Roger Stenson, bring suit challenging the
constitutionality of three of New Hampshire's election statutes,
N.H. Rev. Stat. Ann. ("RSA") 664:2, 664:14, and 664:16. The
plaintiffs contend that these statutes violate the First
Amendment by regulating issue advocacy and by compelling speech
by parties engaging in issue advocacy.
The plaintiffs initially filed a motion for a preliminary
injunction. After conferring with the parties, the court
consolidated the motion for preliminary injunction with a
consideration of the merits of the case. See Procedural Order,
Nov. 7, 2001. The court's jurisdiction to address the merits of
the case is based on 28 U.S.C. §§ 1331 and 1343(a), as the
plaintiffs' claims arise under
42 U.S.C. § 1983 and the First and
Fourteenth Amendments. There are no factual disputes material to
the merits of the case, and the parties essentially present the
court with an issue of law, which the court resolves in this
order.
Background
The three statutes at issue in this case regulate
communications associated with political campaigns and elections.
RSA 664:2 defines the terms used in the various statutes.
"Political advertising" is defined as "any communication . . .
which expressly or implicitly advocates the success or defeat of
any party, measure or person at any election." RSA 664:2, VI
(West Supp. 2000). RSA 664:14 requires that every political
advertisement disclose the name of the political committee or
person responsible for it.1 RSA 664:16 requires that
1The relevant text of the statute reads:
All political advertising shall be signed . . .
with the names and addresses of the candidate, his
fiscal agent, or the name and address of the
chairman or the treasurer of a political
committee, or the name and address of a natural
person, according to whether a candidate,
political committee, or natural person is
responsible for it. Said signature shall clearly
designate the name of the candidate, party or
political committee by or on whose behalf the same
is published or broadcast.
RSA 664:14, I (West Supp. 2000).
2
"[p]olitical advertising printed in newspapers, periodicals or
billboards shall be marked . . . ''Political Advertising.'" RSA
664:16 (West Supp. 2000). A violator of RSA 664:14 or 664:16 may
be subject to criminal prosecution by the New Hampshire Attorney
General. See RSA 664:18 (1996).
Citizens for Life, Inc. ("Citizens") is a non-profit
organization that attempts to educate the public by publicizing
information concerning abortion and related issues. Roger
Stenson is the Executive Director of Citizens. Citizens has a
practice of running advertisements, typically around election
time, that mention candidates for political office and those
candidates' positions or voting records on legislation regulating
abortion.
Citizens alleges that it intends to run advertisements which
would not expressly advocate the election or defeat of any
particular candidate, but would implicitly advocate the success
or defeat of candidates, and would therefore fall under the
definition of "political advertising" in RSA 664:2. Citizens
also alleges that it does not intend to abide by the disclosure
requirements of RSA 664:14 and 664:16 when publishing these
advertisements. Citizens asserts that it fears criminal
prosecution for its intended actions, and that it has chosen in
the past not to run advertisements containing implicit advocacy
3
for fear of prosecution.
Citizens has run some advertisements that complied with RSA
664:14 and 664:16, and others that did not. Citizens does not
allege that the New Hampshire Attorney General has prosecuted it
in the past for violating these statutes. It does allege that
the Attorney General's Office issued Citizens an advisory opinion
concerning one proposed advertisement, which indicated that the
advertisement would have to comply with RSA 664:14 and other
provisions related to political advertising. The advisory
opinion also indicated that the proposed advertisement would be
considered implicit, not express, advocacy.
The plaintiffs seek a declaratory judgment that RSA 664:2,
VI, 664:14, and 664:16 are unconstitutional. They also seek a
permanent injunction precluding the defendants from enforcing
these statutes, and request an award of costs and attorney's fees
associated with bringing this action.
Discussion
I. Standing
The defendants argue that the plaintiffs lack standing to
pursue their claims because they cannot show that they have
suffered an injury. The court considers this issue first, as a
lack of standing would preclude the court from proceeding to a
4
consideration of the merits of the case. See Warth v. Seldin,
422 U.S. 490, 498 (1975); R.I. Ass'n of Realtors, Inc. v.
Whitehouse,
199 F.3d 26, 30 (1st Cir. 1999) .
To satisfy the constitutional requirements of standing, the
plaintiffs must present a justiciable case or controversy. See
U.S. Const, art. Ill, § 2. "[T]he party who invokes a federal
court's authority must show that (1) he or she personally has
suffered some actual or threatened injury as a result of the
challenged conduct; (2) the injury can fairly be traced to that
conduct; and (3) the injury likely will be redressed by a
favorable decision from the court." N.H. Right to Life Political
Action Comm, v. Gardner, 99 F.3d 8, 13 (1st Cir. 1996) (citing
Valiev Forge Christian Coll. v. A m s . United for Separation of
Church & State. Inc..
454 U.S. 464, 472 (1982)). The second and
third requirements are easily met in this case. Any injury
suffered by the plaintiffs is related to the defendants'
enforcement of the challenged statutes, and the declaratory and
injunctive relief requested by the plaintiffs would redress that
injury. See R.I. Ass'n of Realtors,
199 F.3d at 30; N.H. Right
to Life,
99 F.3d at 13.
In the context of a pre-enforcement challenge to a statute
based on First Amendment grounds, the existence of either of two
types of injury is sufficient to satisfy the first constitutional
5
requirement of the standing analysis. A plaintiff may show that
a threat of enforcement exists, or that he is chilled from
exercising his First Amendment right to free speech. See N.H.
Right to Life, 99 F.3d at 13-14. In either case, the crucial
question is whether a credible threat of prosecution exists,
judged by an objective standard. See i d . at 14. "In a pre
enforcement challenge to a statute carrying criminal penalties,
standing exists when 'the plaintiff has alleged an intention to
engage in a course of conduct arguably affected with a
constitutional interest, but proscribed by [the] statute, and
there exists a credible threat of prosecution.'" I d . (quoting
Babbitt v. United Farm Workers Nat'l Union,
442 U.S. 289, 298
(1979)). Here, the plaintiffs have alleged that they intend to
publish advertisements that may be said to implicitly advocate
the election or defeat of a candidate, and that do not comply
with RSA 664:14 and 664:16. The parties dispute whether the
plaintiffs face a credible threat of prosecution.
The First Circuit has said that the credible threat standard
is "quite forgiving" in the First Amendment context, and that
such a threat may be assumed to exist "in the absence of
compelling contrary evidence," in cases where the statute is not
moribund. N.H. Right to Life, 99 F.3d at 14, 15. The defendants
argue that the statutes at issue have never been enforced
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criminally against inadvertent failure to comply with their
disclosure requirements. However, it is clear that this
statement does not address the Attorney General's likelihood of
prosecuting parties who, as the plaintiffs intend, knowingly omit
the disclosures from political advertisements.
Likewise, the fact that the plaintiffs previously have
violated RSA 664:14 and 664:16 without suffering prosecution does
not mean that the Attorney General would refrain from such
prosecution in the future. See R.I. Ass'n of Realtors, 199 F.3d
at 32-33. In light of the Attorney General's advisory opinion to
the plaintiffs, advising them that any political advertisements
must comply with the requirements of RSA 664:14 and other
provisions, it appears that the Attorney General has not
abandoned the possibility of future enforcement of these
statutes. See i d . Indeed, the fact that the Attorney General
has sought to defend this action leads to the reasonable
conclusion that the statutes are not viewed by him as being
moribund and are still subject to being enforced. Accordingly,
the plaintiffs have established a credible threat of future
prosecution, and satisfy the constitutional requirements for
standing.
In addition to the constitutional requirements, the court
must weigh prudential concerns when analyzing questions of
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standing. See N.H. Right to Life, 99 F.3d at 15; Vote Choice,
Inc. v. DiStefano,
4 F.3d 26, 37 (1st Cir. 1993). The parties do
not address these concerns in their briefs. However, the facts
of the case do not suggest that any of these concerns would
preclude standing in this case. Briefly, the plaintiffs'
complaint clearly implicates First Amendment interests, presents
claims based on the legal rights of the plaintiffs, and presents
particularized grievances on the part of the plaintiffs. See
N.H. Right to Life,
99 F.3d at 15-16; Vote Choice,
4 F.3d at 37.
Accordingly, the court finds that the plaintiffs have standing to
pursue their claims, and the court has jurisdiction to consider
the merits of the case.
II. Merits
The plaintiffs contend that the statutes are facially
unconstitutional because they regulate political communications
that are considered issue advocacy, they are impermissibly vague,
and they compel speakers engaged in issue advocacy to disclose
information involuntarily.
A. Regulation of Issue Advocacy
The breadth of permissible regulation of political speech
was outlined in Buckley v. Valeo, 424 U.S. 1 (1976). Buckley
announced that statutes could regulate political communications
without violating the First Amendment only if the communications
used "explicit words of advocacy of election or defeat of a
candidate." Buckley,
424 U.S. at 43. The Court further
described these explicit words in a footnote as "express words of
advocacy of election or defeat, such as 'vote for, ' 'elect, '
'support,' 'cast your ballot for,' 'Smith for Congress,' 'vote
against,' 'defeat,' 'reject.'" I d . at 44 n.52. The Court
reaffirmed its commitment to the express advocacy test in F e d .
Election Comm'n v. Mass. Citizens for Life, Inc.,
479 U.S. 238,
249 (1986) .
The First Circuit has followed Buckley and Mass. Citizens
for Life by using the express advocacy standard in cases
concerning regulation of political speech. See Me. Right to Life
Comm, v. Fed. Election Comm'n, 98 F.3d 1 (1st Cir. 1996)
(affirming holding and rationale in lower court's opinion,
914 F.
Supp. 8 (D. Me. 1996)); Faucher v. Fed. Election Comm'n, 92
8 F.2d
468, 470-71 (1st Cir. 1991). In doing so, the First Circuit has
recognized the Supreme Court's dedication to protecting issue
advocacy from regulation. See Me. Right to Life,
914 F. Supp. at
12. "In our view, trying to discern when issue advocacy in a
voter guide crosses the threshold and becomes express advocacy
invites just the sort of constitutional questions the Court
9
sought to avoid in adopting the bright-line express advocacy test
in Buckley." Faucher, 928 F.2d at 472. The bright-line express
advocacy standard protects the First Amendment interests at
stake, and allows potential political speakers to accurately
assess the types of speech that may be restricted.
RSA 664:2, VI defines "political advertising" as "any
communication . . . which expressly or implicitly advocates the
success or defeat of any party, measure or person at any
election." The plaintiffs contend that by including the word
"implicitly" in RSA 664:2, VI, the New Hampshire legislature has
impermissibly extended regulation of political advertising beyond
the limits of express advocacy into the realm of issue advocacy.
The use of the phrase "expressly or implicitly" creates a clear
distinction between two forms of expression and leads to the
inevitable conclusion that "implicitly" refers to some kind of
advocacy other than express advocacy. On its face, this language
goes beyond the express advocacy limitations of Buckley and M a s s .
Citizens for Life. The defendants argue that the court can, and
should, interpret the word "implicitly" narrowly in a manner that
comports with constitutional concerns and saves the statute from
facial invalidity.
A similar argument was made to the Second Circuit in V t .
Right to Life Comm., Inc. v. Sorrell, 221 F.3d 376 (2d Cir.
10
2000). That case, like the present one, dealt with statutes
requiring certain disclosures on political advertisements, which
the Vermont statute defined as "communication[s ] . . . which
expressly or implicitly advocate [] the success or defeat of a
candidate." V t . Right to Life Comm., 221 F.3d at 387. The
defendants in that case argued that the court should interpret
"implicitly" using a minor dictionary definition of implicit as
"being without doubt or reservation." Id. The defendants also
argued that because legislatures are presumed to know the law,
courts should interpret statutes in such a way that avoids any
constitutional problem. See i d . at 388. The defendants in this
case make essentially the same arguments.
The Second Circuit rejected a narrowing construction of
"implicitly." This court finds the Second Circuit's reasoning
persuasive. To apply a narrowing construction to a state
statute, "the statute must be 'readily susceptible' to the
limitation." Virginia v. Am. Booksellers Ass'n, Inc., 484 U.S.
383, 397 (1988). Because RSA 664:2, VI uses the word
"implicitly" in the context of the phrase, "expressly or
implicitly advocates," it is not readily susceptible to an
interpretation of "implicitly" as meaning "without doubt."
Instead, "implicitly" is used as an alternative to "expressly,"
and in this sense, it is interpreted to mean "tacitly." See V t .
11
Right to Life, 221 F.3d at 388. Therefore, the definition of
"political advertising" in RSA 664:2, VI encompasses more than
express advocacy.
The defendants argue that the court should not follow the
reasoning in Vt. Right to Life because New Hampshire's statutes
have a longer legislative history, and because the Vermont case
concerned application of those statutes to a newsletter, not a
newspaper of general circulation. The court does not view these
distinctions as material to its analysis of the New Hampshire
statutes.2
Furthermore, the plaintiffs argue that the extent of
communication covered by the word "implicitly" is unknowable and
the statute is consequently impermissibly vague. The vagueness
doctrine, based in the due process clause of the Fourteenth
Amendment, provides a separate ground for unconstitutionality,
but involves some of the same concerns as the First Amendment
question. See Buckley, 424 U.S. at 77. The Supreme Court's
insistence on a bright-line test for express advocacy is grounded
in the need for speakers to know for certain when they may expose
themselves to criminal penalties, without having to rely on their
own judgment or the judgment of their listeners or readers. See
2The court notes that the New Hampshire statutes have
existed in their current or similar form since 1979.
12
Iowa Right to Life Comm., Inc. v. Williams, 187 F.3d 963, 969
(8th Cir. 1999). A statute that fails to adhere to the express
advocacy standard "creates uncertainty and potentially chills
discussion of public issues," thereby raising a First Amendment
problem. I d . at 970.
The word "implicitly" in RSA 664:2, VI indicates that the
Attorney General will view some political communications that do
not constitute express advocacy as political advertising that is
subject to the disclosure requirements. It is unclear what
exactly would constitute implicit advocacy, however, leaving
potential speakers unable to determine whether their intended
speech would violate the law. See V t . Right to Life, 221 F.3d at
387. This uncertainty leads to the conclusion that the statute
is impermissibly vague. See i d .
The court concludes that RSA 664:2, VI, 664:14, and 664:16
are facially unconstitutional, 1) because the disclosure
requirements of RSA 664:14 and 664:16, applied to issue advocacy
as a result of the word "implicitly" contained in RSA 664:2, VI,
violate Buckley and its derivative case law, and, 2) because the
word "implicitly" is impermissibly vague. Next, the court
proceeds to consider whether the offending statutory language may
be severed or whether the statutes must be struck down in their
entirety.
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B. Severability
Whether language that renders a statute facially
unconstitutional may be severable is a question of state law.
See Leavitt v. Jane L., 518 U.S. 137, 139 (1996); R.I. A s s 'n of
Realtors, 239 F.3d at 106. The New Hampshire Supreme Court has
stated.
In determining whether the valid provisions of a
statute are severable from the invalid ones, we are to
presume that the legislature intended that the invalid
part shall not produce entire invalidity if the valid
part may be reasonably saved. We must also determine,
however, whether the unconstitutional provisions of the
statute are so integral and essential in the general
structure of the act that they may not be rejected
without the result of an entire collapse and
destruction of the structure.
Claremont Sch. Dist. v. Governor, 144 N.H. 210, 217 (1999)
(quotations omitted). The court considers whether "the
legislature would have enacted the [statute] without the
offending provision." I d . at 218 (quotation omitted). "While
there is a presumption in favor of severability, the principle is
not to be applied if it gives a statute meaning the legislature
did not intend, either by addition or subtraction from its
terms."
Id.
The New Hampshire legislature included in chapter 664 a
severability section, which reads.
If any provision of this chapter or the application
thereof to any person or circumstance is held invalid.
14
the invalidity does not affect any other provisions or
applications of the chapter which can be given effect
without the invalid provisions or applications, and to
this end the provisions of this chapter are severable.
RSA 664:23 (1996). Though the inclusion of the severability
clause sheds some light on the legislature's intent, it is only
one factor the court must consider. "Severability clauses,
though probative of legislative intent, are not conclusive."
Ackerley Communications of Mass., Inc. v. City of Cambridge, 135
F .3d 210, 215 (1st Cir. 1998).
In this case, removal of the words "or implicitly" from RSA
664:2, VI would leave a statute that defines "political
advertising" as communication "which expressly advocates the
success or defeat of a party, measure or person at any election."
This revision results in a statute that is textually sound and
does not impermissibly regulate issue advocacy. It would also
leave a statute that continues to effectively address the
legislature's legitimate concerns about the influence of
contributions to political campaigns. It is highly unlikely that
the legislature, unable to impose disclosure requirements on
issue advocacy, would have forgone the opportunity to impose such
requirements on express advocacy. Furthermore, the severability
clause is indicative of the legislature's intent with respect to
this question.
15
The plaintiffs urge the court to find severability
inappropriate because RSA 664:14 and 664:16, which impose
disclosure requirements on political advertising, would
unconstitutionally compel speech even in conjunction with a
modified definition of political advertising that included only
express advocacy. Nowhere in the complaint do the plaintiffs
claim that RSA 664:14 and 664:16 are unconstitutional because of
their actual or potential application to express advocacy.3 The
complaint focuses only on the unconstitutional application of the
statutes to issue advocacy, and the concomitant effect on issue
advocacy groups such as Citizens.
The plaintiffs may not introduce an entirely different basis
for invalidating the statutes in a reply memorandum.4 The
court's decision to sever the words "or implicitly" addresses the
constitutional claims related to issue advocacy identified by the
3In their complaint, the plaintiffs claim that RSA 664:2, VI
is unconstitutional because it regulates issue advocacy (Count
I); that RSA 664:2, VI and 664:14 are unconstitutional because
they "compel the speech of issue advocacy groups such as Citizens
. . . by compelling them to engage in otherwise regulable express
advocacy" (Count II); that RSA 664:2, VI and 664:16 are
unconstitutional because they "compel the speech of issue
advocacy groups such as Citizens . . . by compelling them to
engage in speech it would otherwise avoid" (Count III); and that
RSA 664:2, VI is void for vagueness (Count IV).
4The first time the plaintiffs presented this claim in a
developed form was in their reply brief on the merits, in
response to the severability issue raised by the defendants.
16
plaintiffs in their complaint and initial memorandum. Other
constitutional claims not raised in the complaint that relate to
these statutes are not properly before this court, and the court
does not consider the validity of the statutes as applied to
express advocacy.
III. Motion to Certify Questions to New Hampshire Supreme Court
The defendants have moved the court to certify several
questions of law to the New Hampshire Supreme Court, including
whether the definition of political advertising is capable of
interpretation that is not void for vagueness, if any words that
may be vague in RSA 664:2, VI are severable, whether the
disclosure requirements of RSA 664:14 and 664:16 are overbroad,
and if so, whether they are severable.5
As discussed in this opinion, the court finds that the word
"implicitly" in RSA 664:2, VI is not readily susceptible to a
narrowing construction that would save the statute from facial
invalidity. See Bellotti v. Baird, 428 U.S. 132, 146-47 (1976)
(noting abstention pending state court's construction of statute
5The court notes that jurisdiction in this case is federal
question jurisdiction based on constitutional claims, not
diversity jurisdiction. The question of certification is more
properly analyzed under abstention doctrine, which the parties do
not address in their briefs. See R.R. Comm'n of Tex, v. Pullman
Co., 312 U.S. 496 (1941) .
17
is appropriate only when statute is susceptible of construction
that would resolve or change federal constitutional problem). It
is therefore unnecessary to delay proceedings in this court for
certification, and it would be imprudent to do so without a
demonstrated need in the context of a pre-enforcement facial
challenge based on First Amendment grounds. See V t . Right to
Life, 221 F.3d at 385-86.
As for the severability of the phrase "or implicitly," New
Hampshire law is sufficiently clear on this subject, especially
in light of the severability clause in RSA 664:23, for this court
to predict how the New Hampshire Supreme Court would resolve the
question, without resorting to certification.
The other questions raised by the defendants for
certification either are resolved by the relief ordered by the
court, or are not properly before the court, as discussed
earlier.
18
Conclusion
The court concludes that RSA 664:2, VI, 664:14, and 664:16
are facially unconstitutional for the reasons discussed in this
opinion. The court also concludes that the phrase "or
implicitly" in RSA 664:2, VI is severable, and declares that RSA
664:2, VI, 664:14, and 664:16 are unconstitutional to the extent
that they regulate political communication that implicitly
advocates, but does not expressly advocate, the success or defeat
of any party, measure or person at any election. Accordingly,
the court strikes the language "or implicitly" from RSA 664:2, VI
as indicated below:
"Political advertising" means any communication,
including buttons or printed material attached to motor
vehicles, which expressly ■&¥— implicitly advocates the
success or defeat of any party, measure or person at
any election.
In addition, the court permanently enjoins the defendants
from enforcing RSA 664:14 and 664:16 against any individual or
organization engaging in political advertising that implicitly
advocates the success or defeat of any party, measure or person
at any election.
The defendants' motion for certification is denied (document
no. 13). The defendants' request for oral argument is also
denied (document no. 15) .
The plaintiffs request costs and attorney's fees pursuant to
19
42 U.S.C. § 1988. Neither side has briefed the issue. The
plaintiffs are provided an opportunity to file a properly
supported motion on or before September 14, 2001 and the
defendants shall file a response by September 28, 2001.
SO ORDERED.
Joseph A. DiClerico, Jr.
District Judge
August 24, 2001
cc: Eileen A. Nevins, Esquire
Eric C. Bohnet, Esquire
Nancy J. Smith, Esquire
Jed Z. Callen, Esquire
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