281 Care Committee v. Ross Arneson
2014 U.S. App. LEXIS 16901
| 8th Cir. | 2014Background
- Appellants are Minnesota grassroots advocacy organizations and leaders who challenge Minn. Stat. § 211B.06 (prohibiting knowingly false paid political advertising about the effect of a ballot question) as violating the First Amendment; appellees are county attorneys and the Minnesota Attorney General (sued in official capacities).
- Minnesota enforces § 211B.06 first through civil complaints to the Office of Administrative Hearings (OAH) (anyone may file), triggering ALJ probable-cause and potentially a three-judge evidentiary panel; OAH dispositions can lead to referral for criminal prosecution and civil penalties.
- This appeal is after remand from 281 Care Committee I (8th Cir.); district court on remand denied plaintiffs’ summary judgment, granted defendants’ summary judgment, and dismissed claims with prejudice; appellants appealed.
- Key procedural/contention points on remand: whether appellants retained Article III standing at summary judgment; what level of First Amendment scrutiny applies (strict v. intermediate); whether § 211B.06 is narrowly tailored to any compelling state interest.
- The panel held appellants have standing (credible threat of OAH complaint and chilling effect), applied strict scrutiny to political speech regulation, found § 211B.06 not narrowly tailored (overbroad, underinclusive, not least restrictive), and concluded the Minnesota AG is immune under the Eleventh Amendment given her affidavit declining enforcement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to bring pre-enforcement First Amendment challenge | Appellants: statute creates a credible threat of OAH proceedings and chilling of core political speech. | County Attys: plaintiffs failed proof at summary stage (no specific statements/initiative), so no objectively reasonable chill. | Standing: affirmed — credible threat exists (SBA List persuasive); self-censorship is injury in fact. |
| Level of scrutiny for statute regulating false political speech | Appellants: political-issue speech is core protected speech and triggers strict scrutiny. | County Attys: cite Alvarez/Marks to argue intermediate scrutiny applies. | Scrutiny: strict scrutiny applies to regulation of political/issue speech; Alvarez not dispositive here. |
| Constitutionality of § 211B.06 under strict scrutiny (narrow tailoring, necessity, least-restrictive means) | Appellants: statute is overbroad, underinclusive, enables tactical abuse via OAH complaints, and is not the least-restrictive means; counterspeech suffices. | County Attys: statute advances compelling interest (fair elections, preventing fraud), includes mens rea (knowingly/reckless) and media exemption, and targets paid campaign material — thus narrowly tailored. | Held: § 211B.06 fails strict scrutiny — not narrowly tailored (overbroad, underinclusive), risks perpetuating abuse, and is not the least-restrictive means; statute invalid as applied. |
| Suit against Minnesota Attorney General (Eleventh Amendment / Ex parte Young) | Appellants: AG is proper defendant under Ex parte Young because of supervisory/defensive roles and potential to prosecute. | AG: enforcement is discretionary and the AG's affidavit states she will not prosecute or file OAH complaints here. | Held: AG immune — affidavit shows no demonstrated willingness to enforce, so Ex parte Young does not apply; AG dismissed from suit. |
Key Cases Cited
- 281 Care Committee v. Arneson, 638 F.3d 621 (8th Cir. 2011) (earlier opinion finding standing and directing strict scrutiny on remand)
- United States v. Alvarez, 132 S. Ct. 2537 (2012) (Supreme Court on false statements; false speech not categorically unprotected; discusses scrutiny)
- Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334 (2014) (pre-enforcement challenge: broad false-statements scheme and permissive complaint process creates Article III injury)
- McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995) (robust First Amendment protection for anonymous/issue-based political speech)
- McCutcheon v. FEC, 134 S. Ct. 1434 (2014) (strict scrutiny principles for core political speech regulations)
- Citizens United v. FEC, 558 U.S. 310 (2010) (political speech at core of First Amendment protection)
- Burson v. Freeman, 504 U.S. 191 (1992) (state has compelling interest in integrity of elections)
- Brown v. Entertainment Merchants Ass’n, 131 S. Ct. 2729 (2011) (requiring a direct causal link and necessity under strict scrutiny)
- Ex parte Young, 209 U.S. 123 (1908) (exception to Eleventh Amendment for officers threatening enforcement of unconstitutional laws)