233 F. Supp. 3d 366
S.D.N.Y.2017Background
- Plaintiffs (five public relations firms) challenge JCOPE Advisory Opinion 16-01, which interprets New York’s Lobbying Act to potentially treat certain consultants’ grassroots communications as reportable lobbying.
- The Advisory Opinion says grassroots communications are lobbying if they (1) reference or implicate activity covered by the Act, (2) take a clear position, and (3) attempt to influence a public official via a call to action; it also treats consultants who control delivery and shape content as reportable.
- JCOPE published FAQs elaborating examples (e.g., appearing on TV for a client or urging an editorial board), and New York amended the Act in Aug. 2016 to exempt certain press communications that "relate to news."
- Plaintiffs claim the Advisory Opinion is overbroad and chills First and Fourteenth Amendment-protected speech by applying lobbying rules to press-facing PR work.
- Parties stipulated that JCOPE would not enforce the Advisory Opinion against Plaintiffs for certain activities (no direct official contact or explicit exhortation) during the preliminary-injunction proceedings.
- Procedural posture: Plaintiffs sought a TRO and preliminary injunction; JCOPE opposed and cross-moved to dismiss. District Court abstained under Pullman, denied both motions without prejudice, stayed the case, and retained jurisdiction pending state-court interpretation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Advisory Opinion unlawfully expands the Act to cover press/consultant speech | Advisory Opinion is overbroad and chills First/14th Amendment speech by subjecting PR work to lobbying rules | JCOPE defends Advisory Opinion as a permissible interpretation of the Act to capture grassroots consulting that influences officials | Court abstained under Pullman; declined to decide constitutionality pending state-court construction |
| Whether federal court should decide constitutional challenge before state court construes ambiguous state rule | Plaintiffs want prompt federal relief to avoid chilling effect | JCOPE argued for dismissal or stay so state courts can interpret the Advisory Opinion | Court found statute/regulation ambiguous and Pullman abstention appropriate; denied motions without prejudice |
| Whether the Advisory Opinion is internally inconsistent/ambiguous (call to action requirement vs. delivery/content control) | Advisory Opinion’s text and FAQs conflict, making scope unclear | JCOPE relies on Advisory Opinion and FAQs to define scope | Court held Advisory Opinion ambiguous and susceptible to narrowing construction by state court |
| Whether amendment exempting press communications resolves the dispute | Plaintiffs argue amendment creates uncertainty about what press communications remain reportable | JCOPE contends amendment clarifies exemptions but ambiguity persists as to mixed editorial/news + call-to-action communications | Court held ambiguity remains and is a matter for state-court interpretation |
Key Cases Cited
- Railroad Comm’n v. Pullman Co., 312 U.S. 496 (abstention doctrine permitting federal courts to defer when state-law interpretation could avoid federal constitutional decision)
- Expressions Hair Design v. Schneiderman, 808 F.3d 118 (2d Cir. rule favoring state-court opportunity to adopt narrower interpretation to avoid federal constitutional issues)
- Vt. Right to Life Comm., Inc. v. Sorrell, 221 F.3d 376 (2d Cir. Pullman abstention factors)
- Handberry v. Thompson, 446 F.3d 335 (2d Cir. applying Pullman framework to state regulation)
- Hartford Courant Co. v. Pellegrino, 380 F.3d 83 (caution against abstention when important federal rights are at stake)
- Arizonans for Official English v. Arizona, 520 U.S. 43 (preference for certification to state court where available)
- Weiser v. Koch, 632 F. Supp. 1369 (S.D.N.Y. applying Pullman where statutory interpretation affected constitutional analysis)