WYOMING GUN OWNERS, a Wyoming nonprofit corporation, a/k/a WyGO v. CHARLES GRAY, in his official capacity as Wyoming Secretary of State; BRIDGET HILL, in her official capacity as Wyoming Attorney General; KAI SCHON, individually and in his official capacity as Wyoming Secretary of State Election Division Director; KAREN WHEELER, individually and in his official capacity as Wyoming Deputy Secretary of State
Nos. 22-8019 and 22-8021
United States Court of Appeals for the Tenth Circuit
October 11, 2023
PUBLISH
CAMPAIGN LEGAL CENTER, Amicus Curiae.
Appeal from the United States District Court for the District of Wyoming (D.C. No. 2:21-CV-00108-SWS)
Endel Kolde, Institute for Free Speech, Washington, D.C. (Stephen Klein, Barr & Klein PLLC, Washington, D.C. and Seth “Turtle” Johnson, Slow & Steady Law Off., PLLC, Saratoga, Wyoming, with him on the briefs) for Plaintiff-Appellee/Cross-Appellant.
Tara Malloy and Megan P. McAllen, Campaign Legal Center, Washington, D.C., filed an Amicus Curiae Brief of Campaign Legal Center.
Before HOLMES, Chief Judge, TYMKOVICH, and CARSON, Circuit Judges.
TYMKOVICH, Circuit Judge.
Wyoming Gun Owners is a non-profit gun rights advocacy group that aired a provocative radio ad in the run-up to Wyoming’s 2020 primary election. The ad extolled the pro-gun credentials of one candidate while branding the other as out of touch with Wyoming values.
Wyoming has a campaign finance scheme that requires organizations that spend over $1,000 on an “electioneering communication” to disclose contributions and expenditures related to that communication.
The Wyoming Secretary of State’s Office flagged Wyoming Gun Owners’ advertisement as an electioneering communication. The Secretary told WyGO it needed
The organization subsequently sued the Secretary of State (and related parties) in federal district court, arguing that various provisions of the Wyoming statute were void for vagueness and that the disclosure scheme was not constitutionally justified. The district court agreed and determined that the disclosure regime failed exacting scrutiny as applied to WyGO and found a provision within the scheme void for vagueness as applied to WyGO. The Secretary appealed the latter two rulings and WyGO cross-appealed the rest.
We affirm the district court on most claims. The disclosure regime fails exacting scrutiny as applied to WyGO for lack of narrow tailoring. And the regime’s requirement that expenditures for speech “related to” candidate campaigns must be disclosed is void for vagueness—again, as applied to WyGO. The district court also correctly dismissed the remaining vagueness challenges—save one—either for failure to sufficiently plead a vagueness challenge or because the statutory language clearly applied to WyGO. The district court did, however, erroneously deny WyGO’s request for attorney’s fees under
A. Wyoming Campaign Finance Law
This appeal takes place against the backdrop of recently enacted Wyoming campaign finance law. Wyoming has adopted a campaign finance scheme that, among other things, requires organizations to disclose information about donors involved in political speech under select circumstances. In particular, Wyoming law requires organizations that spend over $1,000 to issue an “electioneering communication” to notify the state and file a statement identifying itself and the donors whose contributions made the communication possible. See
An “electioneering communication” is a message aimed at advocating for or against a candidate. Covered communications expressly refer to candidates or ballot propositions or are reasonably understood to refer to candidates or ballot propositions. More fully, an electioneering communication
[r]efers to or depicts a clearly identified candidate for nomination or election to public office or a clearly identified ballot proposition and which does not expressly advocate the nomination, election or defeat of the candidate or the adoption or the defeat of the ballot proposition [and] [c]an only be reasonably interpreted as an appeal to vote for or against the candidate or ballot proposition.
An electioneering communication includes almost any method of communication:
[A]ny communication, including an advertisement, which is publicly distributed as a billboard, brochure, email, mailing, magazine, pamphlet or periodical, as the component of an internet website or newspaper by the facilities of a cable
television system, electronic communication network, internet streaming service, radio station, telephone or cellular system, television station or satellite system . . . .
In addition, the statutory scheme expressly exempts speech in two circumstances relevant to this appeal: it exempts speech contained in a (1) newsletter, or (2) political commentary.
The newsletter exemption frees organizations from reporting donors whose contributions fund communications made by that organization “as a component of a newsletter or other internal communication of the entity which is distributed only to members or employees of the entity.”
And the commentary exemption excludes from the “electioneering communications” umbrella more traditional forms of political expression. More fully, it exempts
[a] communication consisting of a news report, commentary or editorial or a similar communication, protected by the first amendment to the United States constitution and article 1, section 20 of the Wyoming constitution, which is distributed as a component of an email, internet website, magazine, newspaper or periodical or by the facilities of a cable television system, electronic communication network, internet streaming service, radio station, television station, or satellite system.
The required statement contains mandatory donor information. It must “list those expenditures and contributions which relate to an independent expenditure or electioneering communication.”
[s]et forth the full and complete record of contributions which relate to an independent expenditure or electioneering communication, including cash, goods or services and actual and promised expenditures. The date of each contribution of $100 or more, any expenditure or obligation, the name of the person from whom received or to whom paid and the purpose of each expenditure or obligation shall be listed. All contributions under $100 shall be reported but need not be itemized. Should the accumulation of contributions from a person exceed the $100 threshold, all contributions from that person shall be itemized . . . .
WyGO describes its mission as “defending and advancing the 2nd Amendment rights of all law-abiding citizens in the state of Wyoming—and exposing legislators who refuse to do the same thing.” App. 100. It considers itself a “small, high-impact operation” and lacks “dedicated in-house lawyers or campaign staff.” Id. This is no surprise: its annual budget fluctuates between $50,000 and $100,000.
WyGO builds its budget with small-dollar donations. About 90% of its donations are under $100. And only 2% exceed $200.
Perhaps befitting a mom-and-pop style issue advocacy outfit, WyGO lacks a sophisticated bookkeeping system. It runs only two accounts. One houses online contributions while the other keeps mailed-in contributions. WyGO does not afford its donors a way to limit, or “earmark,” what projects their donations will fund.
WyGO spreads it message across both legacy and new media platforms. It relies on radio ads, email blasts, direct mail, Facebook posts, YouTube videos, and the like. It avoids explicitly endorsing candidates on these platforms. But still, WyGO overtly disseminates its candidate surveys and offers its membership information relevant to assessing the Second Amendment bona fides of political candidates.
C. Wyoming Gun Owners’ Radio Ad
This case arises from WyGO’s advocacy during Wyoming’s 2020 election cycle. In the run-up to both the August primaries and the November general election, WyGO disseminated emails, videos, direct-mail fliers, and online posts that offered its
America is under attack. Violent thugs are rioting, looting, and vandalizing—pushing socialism for America. Only a few brave champions will stand against them and fight for your gun rights. One of those champions is Anthony Bouchard—a nationally known conservative leader who has always led the fight for Wyoming gun owners. That’s why the Left hates him. And that’s why they are propping up liberal Erin Johnson in the August primary—hoping that this self-described country-club, chamber-of-commerce moderate will help them pass red-flag gun seizures in Wyoming. We all know Anthony Bouchard has fought like hell for gun owners. But Erin Johnson won’t even mention gun rights on her website. That’s pathetic. But that’s Erin Johnson. Tell Johnson that Wyoming gun owners need fighters, not country-club moderates who will stab us in the back the first chance they get. This is Aaron Dorr and this ad is paid for by Wyoming Gun Owners.
App. 343. The Greater Cheyenne Chamber of Commerce reported the ad (alongside various email blasts and newsletters) to the Wyoming Secretary of State’s Elections Division Director. According to the Chamber, the radio ad (and a few other emails and mailers) amounted to an electioneering communication under Wyoming law, and WyGO had failed to comply with the disclosure requirements that accompany electioneering communications.
The Secretary evaluated the complaint and concluded that WyGO had violated the disclosure requirement. He threatened WyGO with a $500 civil fine if it failed to promptly comply. But the Office did not specifically identify the speech it found covered or explain the exact nature of the infraction. After some back-and-forth, WyGO ultimately obtained the Chamber’s complaint under the Wyoming Public Records Act.
WyGO disagreed with this analysis and declined to disclose its donors. The Secretary then issued a fine sanctioning WyGO. He identified only the radio ad as an offending electioneering communication.
D. District Court Proceedings
WyGO sued the Secretary and related parties under
The district court made several rulings on the government’s motion to dismiss and on summary judgment. First, the district court dismissed WyGO’s facial vagueness challenge to the commentary exemption. The court also dismissed its vagueness challenge as applied to the radio ad.
Third, the district court dismissed WyGO’s facial vagueness challenge to the scheme’s requirement that speech “related to” candidate campaigns must be disclosed. But it ultimately determined that the phrase “relate to” is void for vagueness as-applied to WyGO.
Fourth, the court dismissed WyGO’s pre-enforcement challenges to the functional-equivalent standard, the commentary exemption, and the newsletter exemption.
Fifth, the district court dismissed WyGO’s facial attack on the disclosure scheme. But it handed WyGO a victory on its as-applied challenge, finding that the statute fails exacting scrutiny for lack of narrow tailoring.
Sixth, the district court did not grant WyGO’s request for attorney’s fees under
II. Analysis
Our analysis proceeds in three parts. First, we consider the vagueness claims. Second, we consider whether the disclosure regime survives exacting scrutiny. And third, we decide whether the district court erred in withholding WyGO’s attorney’s fees. We review each question de novo. Rio Grande Found. v. Oliver, 57 F.4th 1147, 1153 (10th Cir. 2023).
WyGO contends the district court erred in its vagueness evaluation of several provisions of the statute. It claims that the commentary exemption, the newsletter exemption, and the definition of “electioneering communications” are all void for vagueness. Wyoming similarly argues that the district court erred in its vagueness analysis, but only in finding the phrase “relate to” unconstitutionally vague.
The void-for-vagueness doctrine requires that statutory commands provide fair notice to the public. This is especially true for election speech provisions that impinge on First Amendment rights. See Hynes v. Borough of Oradell, 425 U.S. 610, 620 (1976) (“The general test of vagueness applies with particular force in review of laws dealing with speech.”). Vagueness doctrine
addresses at least two connected but discrete due process concerns: first, that regulated parties should know what is required of them so they may act accordingly; second, precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way. When speech is involved, rigorous adherence to those requirements is necessary to ensure that ambiguity does not chill protected speech.
F.C.C. v. Fox Television Stations, Inc., 567 U.S. 239, 253–54 (2012) (internal citations omitted). Mirroring these concerns, a court may find a statute unconstitutionally vague “for either of two independent reasons. First, if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits. Second, if it authorizes or even encourages arbitrary and discriminatory enforcement.” Hill v. Colorado, 530 U.S. 703, 732 (2000).
Some vagueness challenges contend a statute is facially vague, such that “no set of circumstances exists under which the [statute] would be valid.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008) (quoting United States v. Salerno, 481 U.S. 739, 741 (1987)). Other vagueness challenges claim statutes are vague as applied to particular parties in particular circumstances. “As-applied vagueness challenges involve a factual dimension in that vagueness is determined ‘in light of the facts of the case at hand.’” United States v. Ochoa-Colchado, 521 F.3d 1292, 1299 (10th Cir. 2008) (quoting United States v. Bennett, 329 F.3d 769, 777 (10th Cir. 2003)). This appeal primarily concerns as-applied vagueness challenges.
WyGO first contends that its radio ad should fall under the commentary exemption, and Wyoming arbitrarily denies that protection. WyGO argues the exemption is so vague that ordinary speakers are unable to discern its scope and boundaries. We disagree.
The commentary exemption removes a “communication consisting of a news report, commentary or editorial or a similar communication, protected by the first amendment to the United States constitution and article I, section 20 of the Wyoming constitution” from the ambit of “electioneering communications,” and therefore from disclosure requirements.
The commentary exemption gave WyGO proper notice that the radio ad was not covered by it. First of all, while the word “commentary” standing alone sweeps broadly, its statutory context restrains the term from covering the ad. We read “commentary” given the surrounding words and phrases: “news report” and “editorial.”
WyGO alternatively argues that the exemption, plainly construed, covers its radio ad. After all, its radio ad seems like “commentary”; it expresses a view about a couple different candidates and their policy preferences. See Commentary, Oxford English Dictionary Online, www.oed.com/view/Entry/37060 (last visited April 8, 2023) (“Anything that serves for exposition or illustration; a comment, remark; a running commentary.”). The radio ad, WyGO argues, is no different from an op-ed in the local paper. It should receive the same protections.
While this argument also runs headfirst into the noscitur a sociis canon, WyGO suggests that the following language sweeps in all constitutionally protected speech distributed via those means and protected by the Constitution or state law:
[Speech] [p]rotected by the first amendment to the United States constitution and article I, section 20 of the Wyoming constitution, which is distributed as a component of an email, internet website, magazine, newspaper or periodical or by the facilities of a cable television system, electronic communication network, internet streaming service, radio station, television station, or satellite system.
WyGO’s reading is implausible. The reference to the free speech provisions does not create a stand-alone descriptor of additional communications exempted by the statute. Instead, it clarifies the sort of communications the statute does not mean to protect that might otherwise fall under the exemption: constitutionally unprotected speech, like libel.
WyGO’s radio ad falls outside the commentary exemption, and its as-applied vagueness challenge fails.
2. The functional-equivalent standard
WyGO next argues that the statute’s definition of “electioneering communications” is vague as applied to its radio ad.
WyGO finds vagueness in the definition’s incorporation of the functional-equivalent-of-express-advocacy standard. The law defines “electioneering communications” as encapsulating a communication that,
[r]efers to or depicts a clearly identified candidate for nomination or election to public office or a clearly identified ballot proposition and which does not expressly advocate the nomination, election or defeat of the candidate or the adoption or the defeat of the ballot proposition [and] [c]an only be reasonably interpreted as an appeal to vote for or against the candidate or ballot proposition.
The functional-equivalent standard is based on the Supreme Court’s attempt to draw a line between issue advocacy and candidate advocacy. In Buckley v. Valeo, the Supreme Court recognized a constitutionally significant distinction between issue advocacy and advocacy that expressly advocates for or against a candidate. 424 U.S. 1, 43–44 (1976). It established that “communications containing express words of advocacy . . . such as ‘vote for,’ ‘elect,’ ‘support,’ ‘cast your ballot for,’ ‘Smith for
WyGO alleges that Wyoming offers no guidance on when a communication can only be reasonably interpreted as an appeal to vote for or against a candidate. And beyond that ambiguity, it alleges that it clearly had multiple purposes in promoting its radio ad, like signaling to unnamed candidates that Wyoming Gun Owners would hold their feet to the fire.3
The Supreme Court expressly rejected the idea that the functional-equivalent test is impermissibly vague. Id. at 474 n.7. (This is no surprise: the Court created the test.)
WyGO also rests on an implausible understanding of the standard. Its argument at least partially turns on the idea that a reasonable person could interpret the radio ad as serving multiple purposes, which conflicts with the qualifier, “can only be reasonably interpreted as an appeal to vote for or against the candidate.”
America is under attack. Violent thugs are rioting, looting, and vandalizing—pushing socialism for America. Only a few brave champions will stand against them and fight for your gun rights. One of those champions is Anthony Bouchard—a nationally known conservative leader who has always led the fight for Wyoming gun owners. That’s why the Left hates him. And that’s why they are propping up liberal Erin Johnson in the August primary—hoping that this self-described country-club, chamber-of-commerce moderate will help them pass red-flag gun seizures in Wyoming. We all know Anthony Bouchard has fought like hell for gun owners. But Erin Johnson won’t even mention gun rights on her website. That’s pathetic. But that’s Erin Johnson. Tell Johnson that Wyoming gun owners need fighters, not country-club moderates who will stab us in the back the first chance they get. This is Aaron Dorr and this ad is paid for by Wyoming Gun Owners.
App. 343. We agree with the district court’s conclusion that the radio ad amounts to the functional equivalent of express advocacy. The ad mentions two candidates; it celebrates one as a “brave champion,” and assails the other as a “pathetic” back-stabber. It aired in the run-up to the primary election between the two candidates. No reasonable listener could deny that the ad—at least in part—exhorts listeners to vote for Mr. Bouchard and against Ms. Johnson.
The codified functional-equivalent standard is not vague as applied to the radio ad. We affirm the district court’s dismissal.5
WyGO next contends that the phrase “relate to” is vague as-applied to WyGO.
The statute requires disclosure of donors to the Secretary for donations that fund electioneering communications. Organizations should “[o]nly list those expenditures and contributions which relate to an independent expenditure or electioneering communication.”
We also conclude the phrase “relate to” is impermissibly vague. A statute can be vague if it “authorizes or even encourages arbitrary and discriminatory enforcement” against advocacy organizations. Hill, 530 U.S. at 732. “[I]f arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). “The question is not whether discriminatory enforcement occurred here, and we assume it did not, but whether the [statute] is so imprecise that discriminatory enforcement is a real possibility.” Gentile v. State Bar of Nevada, 501 U.S. 1030, 1051 (1991). “A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” Grayned, 408 U.S. at 108–09.
On the facts presented, the “relate to” language authorizes arbitrary enforcement and does not inform WyGO “what is required of [it] so [it] may act accordingly.” Fox Television Stations, Inc., 567 U.S. at 253. Recall that WyGO pools all donations into one
This lack of guardrails invites arbitrary enforcement. Under the above facts, it is far from clear how the Secretary could determine whether WyGO reported contributions related to its electioneering communication. The bare, standardless “relate to” language authorizes Wyoming to sanction WyGO for failing to adhere to the “best” method for deciding which contributions in an undifferentiated pool relate to some communication—whatever it decides is best on an “ad hoc and subjective basis.” Grayned, 408 U.S. at 109. Wyoming could adopt the theory—as it did on appeal—that the statute obliges an organization in WyGO’s position to disclose all contributions made during the election cycle as “related to” an ad. Another day it could find it proper for WyGO to pick and choose five donors whose contributions collectively amounted to the communication’s cost. “What renders a statute vague is not the possibility that it will sometimes be difficult to determine whether the incriminating fact it establishes has been proved; but rather the indeterminacy of precisely what that fact is.” United States v. Williams, 553 U.S. 285, 306 (2008). Such is the case here.
The Secretary relies on a handful of non-binding cases where a court found the phrase “relate to” sufficiently definite. In United States v. Morrison, 844 F.2d 1057 (4th Cir. 1988), the court found that, on the facts of the case, the phrase “relating to the
The Secretary also points to United States v. Portanova, 961 F.3d 252 (3d Cir. 2020). There, the court considered the language of a sentencing enhancement statute that increased penalties for convictions where the defendant had prior convictions “relating to” several categories of sexual offenses against children.
Nor do we think the provision is susceptible to a limiting construction. “[I]f a statute is readily susceptible to a narrowing construction that will remedy the constitutional infirmity, the statute will be upheld.” Citizens for Responsible Gov‘t State Pol. Action Comm. v. Davidson, 236 F.3d 1174, 1194 (10th Cir. 2000). The argument is that we accept reading “relate to” as “for.” If we accepted this construction, the statute would functionally require disclosure statements which “[o]nly list those expenditures and contributions which [are for] an independent expenditure or electioneering
We may be empowered to craft limiting constructions, but only within reason. “Even assuming that a more explicit limiting interpretation of the [statute] could remedy the flaws we have pointed out . . . we are without power to remedy the defects by giving the [statute] constitutionally precise content.” Hynes, 425 U.S. at 622. The redlining required here is beyond our authority. “We cannot press statutory construction ‘to the point of disingenuous evasion’ even to avoid a constitutional question.” United States v. Locke, 471 U.S. 84, 96 (1985) (quoting George Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379 (1933)).
We recognize that we cannot expect “mathematical certainty” in statutes. Grayned, 408 U.S. at 110. But laws must “provide explicit standards for those who apply them,” and in this context, the statute fails to provide those standards. Id. at 108. We affirm the district court.
4. Pre-enforcement challenges
WyGO next claims that the district court improperly dismissed its pre-enforcement vagueness challenges. The district court did not outright discuss pre-enforcement claims but concluded that “[b]ecause Defendants did not impose any disclosure requirements as
Plaintiffs can occasionally secure judicial review of a law before the government applies it. Pre-enforcement review “provides law-abiding citizens with a middle road between facing prosecution and refraining from otherwise constitutional conduct.” Bankshot Billiards, Inc. v. City of Ocala, 634 F.3d 1340, 1350 (11th Cir. 2011). “[W]e review these claims when the vague law causes a separate injury: the litigant is chilled from engaging in constitutionally protected activity.” Id. We often see pre-enforcement challenges in the First Amendment context. Typically, the plaintiff would like to speak on some matter but fears punishment. That amounts to “chilled speech,” which satisfies the “injury-in-fact” prong for Article III standing. Oliver, 57 F.4th at 1160 (10th Cir. 2023) (internal citations and quotation marks omitted).
We apply a three-factor test to determine whether a plaintiff has sufficiently alleged a chilling effect that amounts to a cognizable injury. First, the plaintiff must present “evidence that in the past [he] [has] engaged in the type of speech affected by the challenged government action.” Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1089 (10th Cir. 2006). But because “people have a right to speak for the first time,” we do not police whether a plaintiff showed this factor with much gusto. Id. “Past relevant speech, where it exists, simply helps to differentiate the plaintiff‘s specific, concrete alleged injury from the general, hypothetical interest of the public.” Oliver, 57 F.4th at 1163.
Second, the plaintiff must supply “affidavits or testimony stating a present desire, though no specific plans, to engage in such speech.” Walker, 450 F.3d at 1089. ”Walker‘s second factor is not meant to be difficult to satisfy; affidavits stating a general desire suffice.” Oliver, 57 F.4th at 1163–64. “A plaintiff need not show the specific content or likely timing of their desired speech.” Id. at 1164. A court need only be able to reasonably infer that the plaintiff harbors a present desire to engage in constitutionally significant speech. Peck v. McCann, 43 F.4th 1116, 1131 (10th Cir. 2022).
And third, the plaintiff must make “a plausible claim that [he] presently [has] no intention to do so because of a credible threat that the statute will be enforced.” Walker, 450 F.3d at 1089. “[T]he third Walker factor asks whether the alleged chill arise[s] from an objectively justified fear of real consequences.” Oliver, 57 F.4th at 1164 (internal quotation marks omitted). In other words, the plaintiff must demonstrate that “the challenged law would plausibly deter a reasonable person in the plaintiff‘s position.” Id. Additionally, a plaintiff cannot allege a chilling effect and then go on speaking. “[I]t is precisely such a choice that the third prong of the Walker inquiry demands.” Rio Grande Found. v. City of Santa Fe, 7 F.4th 956, 960 (10th Cir. 2021).
Because the court disposed of this claim on motion to dismiss, in addition to establishing standing, the plaintiffs must also satisfy
Finally, while a plaintiff “need not show the specific content or likely timing of their desired speech” to establish standing, Oliver, 57 F.4th at 1164, a plaintiff who explains the nature of his intended speech at a particularly “high level of generality . . . cannot prevail in [a] preenforcement challenge.” Holder v. Humanitarian L. Project, 561 U.S. 1, 37–38 (2010); see also Preston v. Leake, 660 F.3d 726, 737 (4th Cir. 2011) (holding that where a plaintiff “has offered no details about her specific activities” that would allegedly fall within statutory parameters, she has made her claim at too high a level of generality for a pre-enforcement challenge).
a. Newsletter Exemption
First, under the newsletter exemption, no disclosure is required for “[a] communication made by an entity as a component of a newsletter or other internal communication of the entity which is distributed only to members or employees of the entity.”
While the district court failed to consider the possibility of a pre-enforcement challenge to the newsletter exemption, we affirm its dismissal because WyGO did not plead a plausible void-for-vagueness claim. WyGO‘s chief allegation amounts to the claim that the Secretary might apply an esoteric definition of the term “member.” Of course, the same allegation could be made of most words and phrases across any statute. And far from the boundless nature of the phrase “relate to,” the word “member” does not readily invite a string of different applications that would encourage arbitrary or discriminatory enforcement. See Hill, 530 U.S. at 732. Also unlike the “relate to” problem, WyGO knows who its members are. App. 100. (“We consider anyone who donates to us in any amount to be a member.“).
While not fatal to its pleading, WyGO argues that the state has provided “no guidance on whether an email or direct-mail piece that goes mostly to an organization‘s members . . . but that might include a few non-members” falls outside the exemption. 2nd Cx-App. Br. at 41. But Wyoming has provided that very guidance: the statute explicitly provides that exempted communications must have been “distributed only to members.”
Pleading an adequate void-for-vagueness challenge requires something beyond merely claiming that a word is vague. Accordingly, we affirm the district court‘s dismissal of WyGO‘s pre-enforcement challenge to the newsletter exemption.
WyGO argued in its complaint that
[o]n its face and as-applied to Plaintiff WyGO, Wyoming‘s electioneering statute is unconstitutionally vague [because] . . . it is unclear which speech does or does not qualify as “electioneering,” [and] . . . it is unclear whether WyGO‘s email communications and other publications qualify for the exemption as “commentary . . . or a similar communication, protected by the first amendment.”
App. 34. It concludes that
[t]he statute may trap the innocent by not providing fair warning or foster arbitrary and discriminatory application, and it can also chill speech by operating to inhibit protected expression. Moreover, the First Amendment does not require that you retain an attorney before knowing whether you can speak, and this regime requires that.
App. 35.
The complaint does not go far in alleging pre-enforcement void-for-vagueness claims as to either the commentary exemption or the functional-equivalent standard. But earlier in the complaint, WyGO describes various past emails, mailers, and videos. App. 25–26. It claims that it will continue airing “materially and substantially similar content” as it has in the past. App. 29. Eventually, WyGO requests pre-enforcement review for the functional-equivalent standard as applied to “speech,” App. 34, and for the commentary exemption as applied to “communications,” App. 29, “email communications,” and “other publications,” App. 34.
With this understanding, we conclude that the district court properly dismissed most of WyGO‘s pre-enforcement claims but should have entertained a pre-enforcement challenge to the commentary exemption as applied to email communications.
WyGO did, however, successfully plead its challenge to the commentary exemption as applied to planned email communications. We read WyGO‘s more specific “email communications” to reflect its earlier email blasts, described in sufficient detail in the complaint. App. 25. By describing a comparator that it alleges will be “materially and substantially similar” to planned emails, WyGO offers the court a colorable way to test the sufficiency of the vagueness claim.7 App. 29. We also conclude that WyGO clears the “fundamental” standing inquiry: it pled that its chilled speech arose from an objectively justified fear of legal consequences that carry weight due to Wyoming‘s past threats and enforcement actions. Oliver, 57 F.4th at 1161. The Secretary does not seriously contest this.
B. Disclosure Requirements
The district court found the disclosure requirements unconstitutional for lack of narrow tailoring as applied to WyGO.
Campaign finance regulations implicate treasured freedoms central to political participation. At their best, these laws promote important governmental interests, like helping electors make “informed choices in the political marketplace,” Citizens United, 558 U.S. at 369, and hampering quid pro quo corruption, Citizens United v. Gessler, 773 F.3d 200, 211 (10th Cir. 2014). But campaign finance laws typically only promote these interests at the expense of First Amendment rights.
Not all campaign finance laws implicate constitutional rights to the same degree. As a result, different standards of scrutiny govern different types of infringements. For example, the Supreme Court treats expenditure limitations differently because they “necessarily reduce[] the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.” Indep. Inst. v. Williams, 812 F.3d 787, 791 (10th Cir. 2016) (quoting Buckley, 424 U.S. at 19). Because expenditure restrictions limit “core political speech,” they must “satisfy strict scrutiny—a provision must be narrowly tailored to further a compelling governmental interest.” Id. at 792.
Reflecting disclosure laws’ lighter touch, we review their constitutionality under the “exacting scrutiny” standard of review. For decades we understood exacting scrutiny to require that the government show “a substantial relation between the disclosure requirement and a sufficiently important governmental interest.” Citizens United, 558 U.S. at 366 (internal quotation marks omitted). The substantial relation inquiry required us to consider whether “the strength of the governmental interest . . . reflect[ed] the seriousness of the actual burden on First Amendment rights.” Doe v. Reed, 561 U.S. 186, 196 (2010) (internal quotation marks omitted).
The Supreme Court recently clarified the contours of our task in Americans for Prosperity Foundation v. Bonta, 141 S. Ct. 2373 (2021). There, the Court assessed the constitutionality of a California state disclosure law that empowered the state Attorney General to maintain a register of charitable organizations and seek information about
The Court agreed that the statute violated the charities’ associational rights, but not without some disagreement on the proper standard of review. The three-Justice plurality opinion concluded that “[r]egardless of the type of association, compelled disclosure requirements are reviewed under exacting scrutiny,” id. at 2383, Justice Thomas argued that strict scrutiny applied, id. at 2390 (Thomas, J., concurring), and Justice Alito, joined by Justice Gorsuch, opted to save the question for another day, id. at 2392 (Alito, J., concurring). Because the Court did not overturn its precedent applying exacting scrutiny to campaign disclosure requirements, we apply exacting scrutiny here. See Citizens United, 558 U.S. at 366.
A majority of the Court concluded the California law failed exacting scrutiny. Crucially, a majority also agreed that the Ninth Circuit conducted a deficient exacting scrutiny analysis by failing to require narrow tailoring. Bonta, 141 S. Ct. at 2385; see also id. at 2391 (Alito, J., concurring) (“I agree that the exacting scrutiny standard drawn from our election-law jurisprudence has real teeth. It requires both narrow tailoring and consideration of alternative means of obtaining the sought-after information.“).
We therefore consider whether the Secretary has demonstrated a substantial relation between the disclosure system‘s burdens and an important governmental interest. We pay particular attention to whether Wyoming narrowly tailored the law to that interest. And because the Secretary appeals the district court‘s determination that the law is unconstitutional as applied to WyGO, we consider the law given the “particular circumstances of the case.” United States v. Carel, 668 F.3d 1211, 1217 (10th Cir. 2011).
1. Substantial relation to an important governmental interest
The Secretary argues that Wyoming‘s disclosure regime is substantially related to an anticorruption interest and an informational interest.
The Supreme Court has long accepted the informational interest as an important one. “The Buckley Court identified important government interests that could meet the burden [of exacting scrutiny], including ‘provid[ing] the electorate with information,’
WyGO acknowledges that we have found the informational interest important but argues that the facts of the case make the interest significantly less compelling. It argues that it raises and spends so little that the burdens of the disclosure regime must outweigh any informational interest. And because everyone knows where WyGO and its donors stand on gun rights—it‘s in the name—disclosing WyGO‘s donors would not illuminate any surprising agendas or funding sources. Put differently, the government‘s informational interest is not particularly strong as applied to WyGO, which suggests that “the strength of the governmental interest” does not “reflect the seriousness of the actual burden on First Amendment rights.” Doe, 561 U.S. at 196.
WyGO relies primarily on Citizens United v. Gessler, 773 F.3d 200, to support its theory that WyGO‘s well-known brand precludes the government from having an important informational interest in compelling donor disclosure. There, Colorado attempted to justify a special provision for media institutions that exempted them from disclosing donors in certain circumstances. The government argued that “the electorate can properly assess a statement by the exempted media because of the familiarity with the
Lack of precedential support aside, WyGO‘s logic does not stand on its own. The informational interest is not as crabbed as it claims. “[T]he public has an interest in knowing who is speaking about a candidate shortly before an election.” Citizens United, 558 U.S. at 369. Disclosure can “help[] voters to define more of the candidates’ constituencies,” Buckley, 424 U.S. at 81, and “allows voters to place each candidate in the political spectrum more precisely than is often possible solely on the basis of party labels and campaign speeches,” id. at 67. “The sources of a candidate‘s financial support also alert the voter to the interests to which a candidate is most likely to be responsive and thus facilitate predictions of future performance in office.” Id. And “[a]n appeal to cast one‘s vote a particular way might prove persuasive when made or financed by one source, but the same argument might fall on deaf ears when made or financed by another.” Hum. Life of Wash. Inc. v. Brumsickle, 624 F.3d 990, 1008 (9th Cir. 2010).
On our understanding of the informational interest, the Secretary has demonstrated an important interest undiminished by WyGO‘s brand. The public still has an interest in knowing who speaks through WyGO. The public can benefit from gathering information on candidate constituencies beyond their interest in gun rights. See Buckley, 424 U.S. at 81. And it can benefit from knowing the number of donors speaking through WyGO,
We also do not think that WyGO suffers particularly outsized burdens. WyGO points us to Sampson v. Buescher, 625 F.3d 1247 (10th Cir. 2010), where we determined that the financial burden of a Colorado disclosure law on a small issue committee did not substantially relate to the government‘s informational interest. There, the law required an issue committee that had collected $782.02 in contributions to disclose the names and addresses of contributors who had donated over $20. We held that “the financial burden of state regulation on Plaintiffs’ freedom of association approaches or exceeds the value of their financial contributions to their political effort; and the governmental interest in imposing those regulations is minimal, if not nonexistent, in light of the small size of the contributions.” Id. at 1261.
WyGO also relies on Coalition for Secular Government v. Williams, 815 F.3d 1267 (10th Cir. 2016). In Coalition we held that “the governmental interest in issue-committee disclosures remains minimal where an issue committee raises or spends $3,500.” Id. at 1277. We explained that “the strength of the public‘s interest in issue-committee disclosure depends, in part, on how much money the issue committee has
We came to a different conclusion in Independence Institute v. Williams, 812 F.3d 787. There, we reviewed another Colorado disclosure requirement, but one which concerned candidate—rather than issue—advocacy. It generally mimicked the features of the Wyoming disclosure regime. But the Colorado scheme‘s disclosure requirements were triggered by expenditures above $1,000 and required the disclosure of donors who contributed $250 or more. We found that the statute survived exacting scrutiny, observing that “[i]t is not surprising . . . that a disclosure threshold for state elections is lower [than BCRA‘s] . . . Smaller elections can be influenced by less expensive communications.” Id. at 797.
Neither Sampson nor Coalition requires us to find that WyGO is particularly burdened by the disclosure regime, and Independence Institute counsels against that determination. Sampson and Coalition concerned issue groups that collected and spent small amounts of money—about $800 and $3,500, respectively. WyGO is regulated for the functional equivalent of express advocacy rather than issue advocacy and reports an annual budget somewhere between $50,000 and $100,000. Additionally, the Wyoming law does not set a terribly low disclosure trigger like the $20 amount in Sampson; instead,
The Secretary has demonstrated a substantial relation between Wyoming‘s disclosure requirements and its informational interest, as applied to WyGO.
2. Narrow tailoring
Next, Wyoming must show that the statute‘s disclosure regime is also narrowly tailored to serve the informational interest. It fails to do so.
“A critical feature of [the narrow tailoring] inquiry turns on whether the [government] ‘seriously undertook to address’ the problems it faces ‘with less intrusive tools readily available to it.‘” Sisters for Life, Inc. v. Louisville-Jefferson Cnty., 56 F.4th 400, 404 (6th Cir. 2022) (Sutton, C.J.) (quoting McCullen v. Coakley, 573 U.S. 464, 494 (2014)). This means that, beyond proving a balanced relationship between the disclosure scheme‘s burdens and the government‘s interests, the government must “demonstrate its need” for the disclosure regime “in light of any less intrusive alternatives.” Bonta, 141 S. Ct. at 2386. “It is the government‘s burden to demonstrate that the challenged law furthers important governmental interests and is narrowly tailored. If the government fails to make that showing, it cannot prevail.” Cornelio v. Connecticut, 32 F.4th 160, 177 (2d Cir. 2022).
The statute requires an organization that issues an electioneering communication to file a statement that reports “those expenditures and contributions which relate to an independent expenditure or electioneering communication.”
The “relate to” language in this context, in addition to its vagueness, creates additional burdens. As described above, identifying which contributions relate to an electioneering communication creates a challenge for advocacy groups like WyGO. Recall that WyGO does not maintain a sophisticated bookkeeping system. Instead, it manages two accounts; one for online donations, one for mailed-in donations. App. 101. WyGO‘s system does not have an earmarking mechanism that would allow donors to set aside contributions for one purpose or another. When WyGO needs to pay an expense—any expense—it pulls from one of two pools of undifferentiated contributions. Id. But it
The Secretary attempts to address this confusion by offering a solution. WyGO should just disclose all contributions (over $100) received in the election cycle. App. 190. In other words, the Secretary resolves the burden of confusion that stems from the burden of the disclosure scheme with the burden of overdisclosure. This is not narrow tailoring.
Under our heightened standard of review, Wyoming owes its citizens precision. “Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms.” NAACP v. Button, 371 U.S. 415, 438 (1963). A disclosure statute that burdens an advocacy group with muddling through ambiguous statutory text that fails to offer guidance on compliance does not afford that precision. It offers only uncertainty. This uncertainty is particularly problematic in the First Amendment context. “Narrow tailoring is crucial where First Amendment activity is chilled—even if indirectly—‘[b]ecause First Amendment freedoms need breathing space to survive.‘” Bonta, 141 S. Ct. at 2384 (quoting Button, 371 U.S. at 433).
The Secretary exacerbates the burden caused by the statute‘s ambiguity by suggesting that WyGO take on an additional burden to cure it. But its proposed overdisclosure solution would bear no relation to the government‘s informational interest; it would necessarily sweep in speakers who may have been interested in supporting a different candidate or no candidate at all or perhaps wished to preserve their privacy or anonymity. This presents an unresolved problem for the Secretary, because “the
Perhaps the Secretary‘s fix would seem more reasonable if these burdens were inevitable. After all, the lodestar of the narrow-tailoring inquiry is the necessity of the burdens. Bonta, 141 S. Ct. at 2385. If the government “seriously undertook to address the problems it faces with less intrusive tools readily available to it,” we cannot demand it try a bit harder. Sisters for Life, Inc., 56 F.4th at 404 (internal quotation marks omitted). But less intrusive tools—tools that would not compound WyGO‘s initial statutory burden—were readily available, and the Secretary offers no reason why Wyoming could not have used them.
Rather than leave WyGO to twist in the wind, the statute could have outlined an earmarking system. We have already recognized the role earmarking can play in tailoring a disclosure law. In Independence Institute, we reasoned that a Colorado law‘s requirement that organizations “need only disclose those donors who have specifically earmarked their contributions for electioneering purposes,” helped render the statute‘s scope “sufficiently tailored.” 812 F.3d at 797. It is no surprise that at least one of our district courts has found the absence of an earmarking provision central to concluding that a disclosure regime fails exacting scrutiny. See, e.g., Lakewood Citizens Watchdog Grp. v. City of Lakewood, No. 21-CV-01488-PAB, 2021 WL 4060630, at *12 (D. Colo. Sept. 7, 2021). Instituting an earmarking system better serves the state‘s informational interest; it directly links speaker to content, whereas the Secretary‘s solution dilutes the
The Secretary makes a few objections. First, he claims that the “relate to” provision works as a functional earmarking requirement by authorizing an earmarking system. But that again flips the burden back onto small advocacy groups to make sense of unclear statutory requirements, all while reintroducing the Secretary‘s burdensome “fix” for those groups who did not infer this requirement when the time to disclose comes. The Secretary has not justified its need for this approach “in light of any less intrusive alternatives.” Bonta, 141 S. Ct. at 2386.
Second, the Secretary argues that the non-specific disclosure regime does not burden WyGO; rather, it provides flexibility. Instead of guiding WyGO‘s conduct, the statute allows WyGO to structure its internal accounting procedures however it sees fit. But flexibility can look a lot like uncertainty to small shops like WyGO. And uncertainty amidst the threat of sanction chills the exercise of First Amendment rights. We keep in mind that “associational rights must be ‘protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference.‘” Id. at 2393 (Sotomayor, J., dissenting) (quoting Bates v. City of Little Rock, 361 U.S. 516, 523 (1960)). What looks like flexibility at first pass amounts to a burden when speakers need certainty and direction.
Third, the Secretary points to cases that arguably cut in favor of finding the statute narrowly tailored. Consider Gaspee Project v. Mederos, 13 F.4th 79 (1st Cir. 2021). There, the First Circuit found a similar disclosure law narrowly tailored despite the lack
We do not understand Gaspee Project to be in tension with our analysis. The First Circuit plainly acknowledged the importance of allowing donors to “opt out” of a disclosure scheme while maintaining the ability to speak. Id. The absence of an earmarking provision did not matter8 because “the Act provides ample opportunity for donors to opt out from having their donations used for . . . electioneering communications, even if the entity to which they contribute has not created a segregated fund.” Id. For example, the statute provided guidance for following a specific carve-out procedure so donors could “opt out of having their monies used for . . . electioneering communications” and avoid disclosure. Id. The Wyoming statute does not offer similar guidance. Furthermore, the First Circuit‘s suggestion that wary donors should just contribute less than $1,000 strikes us as an unacceptable ask here, where the disclosure requirements trigger at a $100 donation.
Amicus highlights Delaware Strong Families v. Attorney General of Delaware, 793 F.3d 304 (3d Cir. 2015), as an example of a disclosure statute that survived exacting scrutiny despite the absence of a Gaspee Project-style opt-out. The Delaware disclosure law required advocacy shops that spent over $500 issuing an electioneering
Delaware Strong Families is a relic of pre-Bonta exacting scrutiny. The Third Circuit understood exacting scrutiny to require only that “the strength of the governmental interest . . . reflect[ed] the seriousness of the actual burden on First Amendment rights.” Doe, 561 U.S. at 196 (internal quotation marks omitted). After Bonta, a court would surely take a closer look at the “extent to which the burdens are unnecessary.” 141 S. Ct. at 2385. The Delaware Strong Families Court admittedly invoked the word “tailored” on several occasions, but it seemed to use the word interchangeably with the “substantial relation” language, and nowhere did it require the government to “demonstrate its need” for the disclosure regime‘s burden “in light of any less intrusive alternatives.” Id. at 2386.
* * *
In sum, the Wyoming disclosure regime is not narrowly tailored as applied to WyGO. WyGO‘s internal-accounting mechanisms are in full compliance with the statute, but WyGO has no way to comply with Wyoming‘s reporting requirements without overdisclosing. Demanding that a small advocacy organization accept greater First Amendment burdens to remain in compliance with a “flexible” statute is not narrow tailoring. To comply with the First Amendment, a disclosure regime must offer appropriate and precise guidance, defining how actors—sophisticated or otherwise—should structure internal accounting mechanisms. “The First Amendment does not permit
C. Attorney‘s Fees
WyGO sought attorney‘s fees below pursuant to
The Eleventh Amendment limits relief against the government, but the Supreme Court has recognized several workarounds. For example, plaintiffs can
But attorney‘s fees sometimes count as prospective relief, too. “[A]n award of attorney‘s fees ancillary to prospective relief is not subject to the strictures of the Eleventh Amendment.” Missouri v. Jenkins by Agyei, 491 U.S. 274, 279 (1989); see also Graham, 473 U.S. at 170 (“[W]hen a State in a
The attorney‘s fees requested by WyGO fall squarely into the exception recognized in Agyei. The Eleventh Amendment does not preclude WyGO from seeking
We affirm the district court‘s rejection of WyGO‘s vagueness challenge to the commentary provision as applied to the radio ad. We affirm its dismissal of WyGO‘s facial-vagueness challenge to the functional-equivalent standard, as well as its dismissal of the challenge to the standard as applied to the radio ad. We affirm the court‘s holding that “relate to” is unconstitutionally vague as applied to WyGO, and also affirm its holding that the disclosure regime is not narrowly tailored as applied to WyGO.
While we affirm the district court‘s dismissal of most of WyGO‘s pre-enforcement challenges, we reverse the dismissal as to WyGO‘s planned email communications. And we reverse the district court‘s holding that WyGO could not obtain