National Federation of the Blind of Texas, Inc. v. Abbott
2011 U.S. App. LEXIS 14532
| 5th Cir. | 2011Background
- Texas enacted a charitable-solicitation statute, Act, requiring disclosures by for-profit entities handling donated goods in three solicitation modes.
- Disclosures vary by relationship to affiliated charities and include identification, ‘sold for profit’ and fee-arrangement statements.
- District court held some provisions unconstitutional under First and Fourteenth Amendments; standing found for some provisions and not others.
- Charities challenge (c) provisions (proceeds going to charity) and (d) provisions (flat-fee arrangement) as applied inconsistently and to some modes of solicitation.
- The district court severed, deemed non-severable, or extended standing differently for (b), (c), and (d) provisions; rulings were appealed by Texas only on certain issues.
- This court affirms in part, reverses in part, and vacates in part, remanding for dismissal of (c) challenges, upholding (d) challenges to the fee disclosure, and severability determination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to challenge (c) provisions | Charities have injury from (c) provisions. | Charities lack injury for (c) challenges. | Charities lack standing to challenge (c) provisions. |
| Severability of (d) from (c) | Statute cannot sever (d) if (c) inseverable. | Severability should be addressed after merits. | Severability analysis premature; vacate district court's (c) discussion; severability approved. |
| Constitutionality of § 17.922(d) fee arrangement disclosure under First Amendment | Disclosures burden protected speech; unconstitutional as applied to public receptacles. | Disclosures serve anti-fraud interest and are narrowly tailored. | Fee-arrangement disclosure unconstitutional as applied to public receptacles; same standard as Riley. |
| Constitutionality of sold-for-profit disclosures under Fourteenth Amendment | Underinclusive/discriminatory treatment of in-house solicitations. | Not underinclusive; disclosure informs donors of third-party presence. | Sold-for-profit disclosures constitutional; no equal protection violation. |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing requires concrete injury, traceability, redressability)
- Barbour v. Mississippi State Democratic Party, 529 F.3d 538 (5th Cir. 2008) (standing requires concrete interest; cannot be inferred from pleadings)
- SEIU, Local 5 v. City of Houston, 595 F.3d 588 (5th Cir. 2010) (standing and overbreadth considerations in First Amendment challenges)
- Riley v. National Federation of the Blind of North Carolina, Inc., 487 U.S. 781 (1988) (strict scrutiny for charitable solicitations; alternatives to disclosures)
- Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947 (1984) (charitable solicitations scrutiny; narrowly tailored disclosures)
- Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620 (1980) (charitable solicitation regulation scrutiny framework)
- Quick v. City of Austin, 7 S.W.3d 109 (Tex. 1999) (severability and construction under Texas law)
- Rose v. Doctors Hosp., 801 S.W.2d 841 (Tex. 1990) (severability tests under Texas law)
- Virginia v. Hicks, 539 U.S. 113 (2003) (severability and judicial decision ordering)
- Riley (see above), 487 U.S. 781 (1988) (as above)