378 F.3d 979 (9th Cir. 2004), 01-15462, American Civil Liberties Union of Nevada v. Heller

Docket Nº:01-15462.
Citation:378 F.3d 979
Party Name:AMERICAN CIVIL LIBERTIES UNION OF NEVADA; Gary Peck, Plaintiffs-Appellants, v. Dean HELLER, in his capacity as Secretary of State of the State of Nevada; Brian Sandoval, in his capacity as Attorney General of the State of Nevada;[*] State of Nevada, Defendants-Appellees.
Case Date:August 06, 2004
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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378 F.3d 979 (9th Cir. 2004)



Dean HELLER, in his capacity as Secretary of State of the State of Nevada; Brian Sandoval, in his capacity as Attorney General of the State of Nevada;[*] State of Nevada, Defendants-Appellees.

No. 01-15462.

United States Court of Appeals, Ninth Circuit

August 6, 2004

Submission Vacated June 4, 2002.

Resubmitted Dec. 18, 2003.

Argued and Submitted May 15, 2002.

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[Copyrighted Material Omitted]

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Allen Lichtenstein and JoNell Thomas, Las Vegas, NV, for the plaintiffs-appellants.

Kateri Cavin, Victoria Thimmesch Oldenburg, and Paul G. Taggart, Office of the Attorney General, Carson City, NV, for the defendants-appellees.

Appeal from the United States District Court for the District of Nevada David Warner Hagen, District Judge, Presiding. D.C. No. CV-00-00370-DWH.

Before: BROWNING, HUG, JR., and BERZON, Circuit Judges.

BERZON, Circuit Judge:

Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all.... Even the Federalist Papers, written in favor of the adoption of our Constitution, were published under fictitious names. It is plain that anonymity has sometimes been assumed for the most constructive purposes.

Talley v. California, 362 U.S. 60, 64-65, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960).

We are asked in this case to rule on the constitutionality of a Nevada statute that requires certain groups or entities publishing "any material or information relating to an election, candidate or any question on a ballot" to reveal on the publication the names and addresses of the publications' financial sponsors. After the district court found no constitutional infirmities, we remanded for a determination of plaintiffs' standing. Now satisfied that standing has been established, we hold that the statutory provision is facially unconstitutional because it violates the Free Speech Clause of the First Amendment, as explicated by McIntyre v. Ohio Elections Commission, 514 U.S. 334, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995).


Nevada Revised Statutes § 294A.3201 requires persons either paying for or "responsible for paying for" the publication of "any material or information relating to an election, candidate or any question on a ballot" to identify their names and addresses on "any [published] printed or written matter or any photograph." Advertising by candidates and political parties is exempted if the advertising refers only to a candidate and displays his or her name "prominently." In addition, if monies used for a publication have "been reported by the candidate as a campaign contribution," then he or she may approve and pay for that publication without being subject to the Nevada Statute's requirements.

In McIntyre, the Supreme Court addressed the validity of an Ohio statute prohibiting the distribution of written political communications unless the publication

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contained the name and address "of the chairman, treasurer, or secretary of the organization issuing the same, or the person who issues, makes, or is responsible therefor." McIntyre, 514 U.S. at 338 n. 3, 115 S.Ct. 1511. Margaret McIntyre had distributed leaflets, attributed to "Concerned Parents and Tax Payers," regarding an "imminent" referendum on the school tax levy, which was scheduled to be discussed at the meeting. Id. at 337-38, 115 S.Ct. 1511. There was "no suggestion that the text of her message was false, misleading, or libelous.... Except for the help provided by her son and a friend, who placed some of the leaflets on car windshields in the school parking lot, Mrs. McIntyre acted independently." Id. at 337, 115 S.Ct. 1511. The Court struck down Ohio's statutory provision, describing it as "a regulation of pure speech[,] ... a direct regulation of the content of speech." Id. at 345, 115 S.Ct. 1511.

In 1997, Nevada amended § 294A.320, originally enacted in 1989, in an effort to respond to McIntyre. The amendment added only an exception for "a natural person who acts independently and not in cooperation with or pursuant to any direction from a business or social organization, nongovernmental legal entity or governmental entity." Nev.Rev.Stat. § 294A.320(2)(c).2

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The American Civil Liberties Union of Nevada and its executive director, Gary Peck, (together "ACLUN") brought this First Amendment facial overbreadth challenge to the Nevada Statute. The district court entered summary judgment in favor of the state defendants, reasoning that:

This statute protects the integrity of the election process by promoting truthfulness in campaign advertising. This statute is also important in increasing the wealth of information available to the electorate. The State of Nevada's interest in preserving the integrity of the election process by preventing actual and perceived corruption has been found to be a compelling state interest by the United States Supreme Court.

The ACLUN appealed. In an unpublished order, we remanded the case because the pleadings and record did not demonstrate that the plaintiffs had standing to bring this suit.3 On remand, the district court found that the ACLUN's Second Amended Complaint ("the Complaint") did establish Article III standing because the ACLUN alleged in the Complaint specific instances in which the organization wished to engage in speech but refrained from doing so for fear of being prosecuted under the Nevada Statute.




On the present record, the ACLU of Nevada, suing for itself and on behalf of its members, and Gary Peck, as one of its members, satisfy Article III standing requirements. Standing requires plaintiffs to demonstrate injuries that are "actual or imminent, not conjectural or hypothetical." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (quotation marks and citation omitted). We recently explained in the First Amendment context that "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." Ariz. Right to Life Political Action Comm. v. Bayless, 320 F.3d 1002, 1006 (9th Cir. 2003) (quotation marks and citation omitted); see also Cal. Pro-Life Council, Inc. v. Getman, 328 F.3d 1088, 1094-95 (9th Cir. 2003) (describing "the constitutionally recognized injury of self-censorship").

The present Complaint alleges that the Nevada Statute has "already prohibited and continues to restrict the protected speech of the ACLUN, its members, Gary Peck, and other parties," and provides examples of such restrictions. As found by the district court,

the ACLUN indicated that its members wished to engage in anonymous speech--but did not on account of NRS 294A.320--with regard to an upcoming City of Las Vegas referendum concerning pay raises for the City Council and Mayor and a City of

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North Las Vegas ballot initiative concerning public comment at City Council meetings. Specifically, ACLUN members wish to engage in coordinated efforts of anonymous political speech, that is, anonymous speech in conjunction with the social organization of which they are a part, which is prohibited by NRS 294A.320. [...]

Similarly, ACLUN members had wanted to engage in the production and distribution of anonymous political flyers on various ballot initiatives in the 2002 election but did not for fear of prosecution under NRS 294A.320. The ACLUN also demonstrated that its members have previously been prosecuted for violations of the statute.

The Complaint states that the ACLUN was prevented from anonymous "involvement with literature concerning ballot initiatives," because, "[u]nder NRS 294A.320, it would have been unlawful for the ACLUN to be involved with[groups opposing a 2002 Las Vegas redistricting plan] in a public information campaign concerning this issue, as it related to the upcoming election, unless the ACLUN had its name on all written material dispensed to the public."

Plaintiffs also introduced affidavits by Peck and another ACLUN member, Tom Skancke, who was "prosecuted for violations of NRS 294A.320." Peck's affidavit describes, with reference to recent Nevada elections and ballot initiatives, his "wish ... contrary to the provisions of NRS 294A.320, to involve [himself] with organizations speaking out on [a ballot initiative] issue, including the production and distribution of flyers, without attaching [his] name [so as not to create an appearance that his personal opinion represents the official position of the ACLUN]." Peck added that "ACLUN members who have ... expressed a desire to engage in anonymous political speech ... wish to do so not only as natural persons acting independently, but also as participants acting in concert and cooperation [with] other persons and groups, as prohibited by [NRS 294A.320]."

The Complaint also alleges an intent to continue to engage in conduct barred by the Nevada Statute in the future. The Complaint states that "[t]he ACLUN and its members have also been involved with various groups who have in the past, and plan in the future, to circulate petitions to place certain referendum measures on statewide or local ballots," and that "NRS 294A.320 has and continues to discourage ACLUN and its members from engaging in anonymous political speech critical of elected officials and of the election process itself." (Emphases...

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