Dennis Fusaro v. Michael Cogan
930 F.3d 241
| 4th Cir. | 2019Background
- Plaintiff Dennis Fusaro, a Virginia resident and political consultant, sought a copy of Maryland’s statewide voter registration list (the "List") to mail a letter criticizing the Maryland State Prosecutor.
- Maryland Code § 3-506 provides copies of the List only to Maryland registered voters and forbids use of the List for purposes not "related to the electoral process," with criminal penalties for misuse; § 3-505 allows public inspection of registration records at local State Board offices.
- The Maryland State Board denied Fusaro’s application because he was not a Maryland-registered voter; Fusaro then sued state officials alleging First Amendment and vagueness violations and sought a preliminary injunction.
- The district court dismissed the complaint and denied the injunction, concluding there is no First Amendment right to access government records and thus Fusaro had no cognizable speech claim.
- On appeal the Fourth Circuit vacated and remanded, holding Fusaro stated a First Amendment claim because the List is closely tied to political speech and § 3-506 imposes speaker- and content-based conditions; the court applied Anderson/Burdick balancing rather than strict scrutiny and remanded for further proceedings, including vagueness and injunction issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether denial of access to the List implicates the First Amendment | Fusaro: § 3-506 burdens political speech by limiting who may obtain and use the List | State: No First Amendment right to access government-controlled records; Houchins controls | Held: Claim cognizable — List is a tool of political communication and speaker- and content-based conditions can implicate speech rights |
| Appropriate level of scrutiny for § 3-506 | Fusaro: Speaker- and content-based restrictions trigger strict scrutiny | State: Deference due to regulation of government records and elections; no severe burden | Held: Strict scrutiny not warranted; apply Anderson-Burdick balancing because § 3-506 is an election regulation that does not severely burden speech on its face |
| Whether § 3-506’s speaker/content restrictions are viewpoint or unconstitutional discrimination | Fusaro: Restrictions favor Maryland-registered voters and limit use to electoral purposes, risking viewpoint discrimination | State: Distinction is politically neutral and legitimate; public inspection remains available via § 3-505 | Held: No showing of viewpoint discrimination in text/operation; political neutrality weighs against finding a severe burden, but claim may proceed to balancing |
| Vagueness of phrase "electoral process" and entitlement to preliminary injunction | Fusaro: Phrase is unconstitutionally vague; injunction needed to prevent chill and prosecution | State: Dismissal justified because no First Amendment right; merits unproven | Held: District court erred by dismissing without addressing vagueness or injunction; those issues vacated and remanded for initial consideration by district court |
Key Cases Cited
- Houchins v. KQED, 438 U.S. 1 (1978) (no general First Amendment right to access government-held information)
- Los Angeles Police Dep’t v. United Reporting Publ’g Corp., 528 U.S. 32 (2000) (conditions on disclosure of government information can implicate First Amendment; selective disclosure raises risk of viewpoint discrimination)
- Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) (recognizing that restrictions on access to government-held information may burden recipients’ speech)
- Anderson v. Celebrezze, 460 U.S. 780 (1983) (balancing test for First Amendment challenges to election regulations)
- Burdick v. Takushi, 504 U.S. 428 (1992) (standard that severity of burden determines level of scrutiny for election laws)
- Buckley v. Valeo, 424 U.S. 1 (1976) (means of political communication can implicate speech and receive strong protection)
- McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995) (political advocacy receives broad First Amendment protection)
- Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010) (government may not impose speaker-based restrictions that suppress political speech)