320 F.3d 1002 (9th Cir. 2003), 01-17065, Arizona Right to Life Political Action v. Bayless

Docket Nº:01-17065.
Citation:320 F.3d 1002
Party Name:ARIZONA RIGHT TO LIFE POLITICAL ACTION COMMITTEE, Plaintiff-Appellant, v. Betsy BAYLESS; Janet Napolitano, in her official capacity as the Arizona Attorney General, Defendants-Appellees.
Case Date:February 25, 2003
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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320 F.3d 1002 (9th Cir. 2003)



Betsy BAYLESS; Janet Napolitano, in her official capacity as the Arizona Attorney General, Defendants-Appellees.

No. 01-17065.

United States Court of Appeals, Ninth Circuit

February 25, 2003

Argued and Submitted Nov. 4, 2002.

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[Copyrighted Material Omitted]

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James Bopp, Jr. and Eric C. Bohnet, Bopp, Coleson & Bostrom, Terre Haute, IN, and Douglas V. Drury, Mueller & Drury, P.C., Scottsdale, AZ, for the appellant.

Janet Napolitano, Attorney General, Patrick Irvine, Solicitor General, and Joseph A. Kanefield, Assistant Attorney General, Phoenix, AZ, for the appellee.

Appeal from the United States District Court for the District of Arizona; Roger G. Strand, District Judge, Presiding. D.C. No. CV-00-00129-RGS.

Before McKEOWN and PAEZ, Circuit Judges, and POLLAK,[*] District Judge.


McKEOWN, Circuit Judge.

Negative political advertising is nothing new. Whether the mudslinging came in the form of name calling by Abraham Lincoln's detractors,1 taunts about Grover Cleveland's draft-dodging and his illegitimate child—"Ma, Ma, where's my pa?"2— or the more recent and memorable Willie Horton incident—linking Governor Michael Dukakis with a furloughed convict3 —the rough and tumble of political campaigning has embraced a wide range of political speech. Arizona's effort to curb such negative political advertising is the genesis of this lawsuit.

We consider here the extent to which a state may regulate political speech in the final days before an election. To limit negative advertising and to afford candidates an opportunity to respond to "negative hit pieces," the Arizona legislature passed a statute requiring advance notice before distribution of certain political literature and advertising. Specifically, within ten days before an election, a political action committee advocating the election or defeat of any candidate must mail a copy of the communication to the candidate at least twenty-four hours in advance. We conclude that this regulatory scheme, which imposes a severe burden on political speech, violates the First Amendment because it is not "narrowly tailored to serve a compelling state interest." Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 192 n. 12, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999) (internal quotation marks and citations omitted). Consequently, we reverse the district court's denial of Arizona Right to Life Political Action

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Committee's claims for injunctive and declaratory relief.


In 1993, the Arizona legislature passed an election reform scheme that contained, among other provisions, limitations on the timing of political advertising. Ariz.Rev. Stat. ("A.R.S.") § 16-917(A). A.R.S. § 16-917(A) provides:

A political committee that makes independent expenditures for literature or an advertisement relating to any one candidate or office within ten days before the day of any election to which the expenditures relate, shall send by certified mail a copy of the campaign literature or advertisement to each candidate named or otherwise referred to in the literature or advertisement twenty-four hours before depositing it at the post office for mailing, twenty-four hours before submitting it to a telecommunications system for broadcast or twenty-four hours before submitting it to a newspaper for printing.

Section 16-917(A) applies only to "independent expenditures," which are defined as:

[A]n expenditure by a person or political committee, other than a candidate's campaign committee, that expressly advocates the election or defeat of a clearly identified candidate, that is made without cooperation or consultation with any candidate or committee or agent of the candidate and that is not made in concert with or at the request or suggestion of a candidate, or any committee or agent of the candidate.

A.R.S. § 16-901(14). A political action committee ("PAC") that violates § 16-917(A) must pay "a civil penalty of three times the cost of the literature or advertisement that was distributed in violation of this section." Id. at § 16-917(D).

Appellant Arizona Right to Life Political Action Committee ("ARLPAC") is a PAC. According to its bylaws, ARLPAC's primary purpose is to "present detailed and factual information upon which individuals and the general public may make an informed decision about the various topics of fetal development, abortion, alternatives to abortion, euthanasia, and infanticide." ARLPAC seeks to advance this goal by "[identifying and educating the public regarding candidates for public office . . . ." To further this objective, ARLPAC often makes independent expenditures to express its support for or opposition to candidates.

Believing that § 16-917(A) impermissibly burdens its right to speak and educate the public about certain candidates, ARLPAC filed an action challenging the constitutionality of this statute. ARLPAC's motion for preliminary injunction was consolidated with a trial on the merits. The district court denied ARLPAC's request for a permanent injunction and a declaratory judgment with respect to § 16— 917(A).4


I. ARLPAC Has Standing to Challenge A.R.S. § 16-917(A)

As a threshold matter, we must consider whether ARLPAC has standing to challenge A.R.S. § 16-917(A). The "case and controversy" mandate of Article III of the Constitution requires us to address standing even though Arizona did not argue the point in its briefs and first raised the issue at oral argument.

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Under Article III, a federal court only has jurisdiction to hear claims that present an actual "case or controversy." Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). To satisfy this prerequisite, a plaintiff must demonstrate that it has suffered an "injury-in-fact," i.e., "a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement."5 Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979). This direct injury requirement is tempered, however, in that "[o]ne does not have to await the consummation of threatened injury to obtain preventive relief." Reg'l Rail Reorg. Act Cases, 419 U.S. 102, 143, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974) (internal quotation marks and citations omitted). Rather, it is "sufficient for standing purposes that the plaintiff intends to engage in 'a course of conduct arguably affected with a constitutional interest' and that there is a credible threat that the challenged provision will be invoked against the plaintiff." LSO, Ltd. v. Stroh, 205 F.3d 1146, 1154-55 (9th Cir. 2000) (quoting Babbitt, 442 U.S. at 298, 99 S.Ct. 2301).

Constitutional challenges based on the First Amendment present unique standing considerations. In an effort to avoid the chilling effect of sweeping restrictions, the Supreme Court has endorsed what might be called a "hold your tongue and challenge now" approach rather than requiring litigants to speak first and take their chances with the consequences. See Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965) (recognizing the "sensitive nature of constitutionally protected expression," in permitting a pre-enforcement action involving the First Amendment); see also Bland v. Fessler, 88 F.3d 729, 736-37 (9th Cir. 1996) ("That one should not have to risk prosecution to challenge a statute is especially true in First Amendment cases . . . ."). Were it otherwise, "free expression—of transcendent value to all society, and not merely to those exercising their rights—might be the loser." Dombrowski 380 U.S. at 486, 85 S.Ct. 1116. Thus, "when the threatened enforcement effort implicates First Amendment rights, the inquiry tilts dramatically toward a finding of standing." LSO, 205 F.3d at 1155.

The record before us demonstrates that ARLPAC has suffered injury from the operation of § 16-917(A). Although ARLPAC has neither violated the statute nor been subject to penalties for doing so, ARLPAC was forced to modify its speech and behavior to comply with the statute. For example, ARLPAC wanted to disseminate advertising without providing twenty-four hour advance notice to candidates; nonetheless, to avoid penalties associated with failure to satisfy the notification requirement, ARLPAC provided the notice and delayed its speech both before the September 2000 primary election and subsequent elections. Thus, as in Virginia v. Am. Booksellers Ass'n, ARLPAC faced actual harm from the operation of the statute because "the alleged danger of [§ 16-917(A) ] is, in large measure, one of self-censorship; a harm that can be realized even without an actual prosecution." 484 U.S. 383, 393, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988).

It was not unreasonable for ARLPAC to modify its behavior out of fear of being the object of an enforcement action. Arizona has not suggested that the legislation will not be enforced if ARLPAC or any other PAC were to violate its provisions nor has

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§ 16-917(A) fallen into desuetude. Bland, 88 F.3d at 737. Under such circumstances, ARLPAC faced a reasonable risk that it would be subject to civil penalties for violation of the statute. See Am. Booksellers Ass'n, 484 U.S. at 393, 108 S.Ct. 636(concluding that plaintiffs have standing where the "State has not suggested that the newly enacted law will not be enforced, and we see no reason to assume otherwise"); Babbitt, 442 U.S. at 302, 99 S.Ct. 2301 (noting the government's failure to state that it would not prosecute parties like plaintiffs and concluding that plaintiffs "are thus not without some reason in fearing prosecution"). Because ARLPAC reasonably feared prosecution...

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