449 F.3d 655 (5th Cir. 2006), 04-30877, Center for Individual Freedom v. Carmouche

Docket Nº:04-30877, 05-30212.
Citation:449 F.3d 655
Party Name:CENTER FOR INDIVIDUAL FREEDOM, Plaintiff-Appellant, v. Paul J. CARMOUCHE, Robert Roland, John W. Greene, E.L. Guidry, R.L. Hargrove, Jr., Michael J. Kantrow, Henry C. Perrett, Jr., Ascension Delgado Smith, Delores Spikes, Edwin O. Ware, T.O. Perry, Joseph Maselli, Defendants-Appellees.
Case Date:May 11, 2006
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 655

449 F.3d 655 (5th Cir. 2006)



Paul J. CARMOUCHE, Robert Roland, John W. Greene, E.L. Guidry, R.L. Hargrove, Jr., Michael J. Kantrow, Henry C. Perrett, Jr., Ascension Delgado Smith, Delores Spikes, Edwin O. Ware, T.O. Perry, Joseph Maselli, Defendants-Appellees.

Nos. 04-30877, 05-30212.

United States Court of Appeals, Fifth Circuit.

May 11, 2006

Page 656

[Copyrighted Material Omitted]

Page 657

[Copyrighted Material Omitted]

Page 658

Thomas Wesley Kirby (argued), Wiley, Rein & Fielding, Washington, DC, Harry A. Rosenberg, Christopher Kent Ralston, Phelps Dunbar, New Orleans, LA, for Plaintiff-Appellant.

R. Gray Sexton (argued), Charles Henry Braud, Jr., Baton Rouge, LA, for Defendants-Appellees.

Appeals from the United States District Court for the Western District of Louisiana

Before DAVIS, SMITH and DENNIS, Circuit Judges.

Jerry E. Smith, Circuit Judge:

The Center for Individual Freedom (the "Center") challenges, on First Amendment grounds, the dismissal of its complaint questioning the constitutionality of certain provisions of Louisiana's Campaign Finance Disclosure Act ("CFDA"). Reading the statute narrowly to avoid constitutional problems, we affirm.


The Center is a nonpartisan, nonprofit § 501(c)(4) corporation whose stated goal is "to protect and defend individual freedoms and individual rights guaranteed by the U.S. Constitution." Complaint ¶ 3. To further this goal, in advance of the September 18, 2004, primary to fill a vacancy on the Louisiana Supreme Court, the Center desired "to speak to the [Louisiana] public . . . on matters of vital public interest, including . . . criminal law enforcement and sentencing, legal reform, and judicial decision-making." Complaint ¶ 10.

To that end, the Center wanted to finance and run television and radio advertisements that, while not advocating the election or defeat of any candidate, would refer to the positions of the candidates on issues of importance to the Center. Fearing, however, that its advertisements would be deemed as intended to influence an election and that it therefore would be forced to make certain disclosures under the CFDA, the Center opted to refrain from running any ads until the constitutionality of the relevant provisions of the statute could be determined.

On August 24, 2004, the Center sued the District Attorney for the 1st Judicial District of Louisiana and various members of the Supervisory Committee for Campaign Finance of the Louisiana Board of Ethics under the Civil Rights Act, 42 U.S.C. § 1983, and the Declaratory Judgment Act, 28 U.S.C. § 2201. The defendants (collectively, "the Board") are responsible for implementing and enforcing the CFDA. The Center asserts that certain provisions of the CFDA violate the First Amendment and are therefore invalid. The Center alleges that at the time it filed its complaint, "planning and development

Page 659

of the contemplated ads [was] well-advanced." Complaint ¶ 10.1

The Center sought temporary, preliminary and permanent injunctive relief from enforcement of the CFDA. After a hearing on the motion for preliminary injunction, the district court held that the Center has standing to mount a facial attack but denied preliminary injunctive relief on the ground that the Center has little likelihood of success on the merits because the relevant provisions of the CFDA were equivalent to the provisions of the federal campaign finance statute that had withstood First Amendment challenge in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976).

The Center then sought emergency injunctive relief from this court pending appeal. After we had denied that request, the parties agreed that the district court could render a final judgment on the merits of the complaint on the basis of the record and the submissions made in conjunction with the preliminary injunction motion. For the reasons articulated in its ruling on the preliminary injunction motion, the court dismissed the complaint.


The Board argues that this case is nonjusticiable because the Center lacks standing and because the completion of the relevant election renders the complaint moot. We review all questions of subject matter jurisdiction, including the justiciability issues of standing, ripeness, and mootness, de novo.2


To have standing, a plaintiff must demonstrate that he has been injured, that the defendant caused the injury, and that the requested relief will redress the injury. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The Board argues that the Center lacks standing to contest the constitutionality of the CFDA because the Board never took or threatened to take action against the Center under the statute. Pointing to the highly generalized manner in which the complaint describes the proposed ads, the Board asserts that the Center's belief that it would be held to the disclosure requirements of the CFDA is entirely subjective and insufficient to support standing. The Board contends that without any enforcement action taken against it by the Board, the Center cannot challenge the application of the CFDA.

In Adams v. Askew, 511 F.2d 700, 704 (5th Cir. 1975), we noted that "[the plaintiffs] . . . confuse an attack on the constitutionality of a statute on its face with an attack on the statute as applied." The contention that a party cannot challenge a statute as-applied unless the statute has been applied to him is generally correct.3 Because, however, our task is to decide whether the Center has standing to launch a facial, rather than as-applied, challenge, that tautology is not helpful.

The district court held that the Center has standing to challenge the constitutionality of the relevant provisions of the CFDA on their face. Both its conclusion and its reasoning are sound. It is

Page 660

true that facial challenges are generally disfavored because they "entail a departure from the norms of federal-court adjudication by calling for relaxation of familiar standing requirements to allow a determination that the law would be unconstitutionally applied to different parties and different circumstances from those at hand." Sabri v. United States, 541 U.S. 600, 609, 124 S.Ct. 1941, 158 L.Ed.2d 891 (2004). The Sabri court acknowledged, however, that there are concerns in the First Amendment context that are "weighty enough to overcome our well-founded reticence" regarding facial challenges. Id. at 610, 124 S.Ct. 1941.

As the district court noted, "[t]he First Amendment challenge has unique standing issues because of the chilling effect, self-censorship, and in fact the very special nature of political speech itself." Trial Transcript at 84. This assessment is based largely on Dombrowski v. Pfister, 380 U.S. 479, 486-87, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), in which the Court observed that

[a] criminal prosecution under a statute regulating expression usually involves imponderables and contingencies that themselves may inhibit the full exercise of First Amendment freedoms .... Because of the sensitive nature of constitutionally protected expression, we have not required that all of those subject to overbroad regulations risk prosecution to test their rights .... We have fashioned this exception to the usual rules governing standing because of the danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute of sweeping and improper application .... By permitting determination of the invalidity of these statutes without regard to the permissibility of some regulation on the facts of particular cases, we have, in effect, avoided making vindication of freedom of expression await the outcome of protracted litigation.

The Court echoed this conclusion in Virginia v. Am. Booksellers Ass'n, 484 U.S. 383, 392, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988), when it stated that "the alleged danger of [the challenged statute] is, in large measure, one of self-censorship; a harm that can be realized even without an actual prosecution."

Controlling precedent thus establishes that a chilling of speech because of the mere existence of an allegedly vague or overbroad statute can be sufficient injury to support standing. The Center states that it "is not willing to expose itself and its staff to civil and criminal penalties and its contributors to disclosure," and thus it "has been forced to refrain from speaking ...." Complaint ¶ 15. To satisfy standing requirements, however, this type of self-censorship must arise from a fear of prosecution that is not "imaginary or wholly speculative." Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 302, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979).

The Center "intend[ed] to refer to the position of specific candidates on issues of importance to it." Complaint ¶ 13. In a 1999 advisory letter, the Board stated that "[i]f the message is unmistakable, unambiguous, and suggestive of only one plausible meaning, and if that meaning is an expression of preference of one candidate over another candidate, then the underlying contributions and expenditures should be reported as otherwise required by applicable provisions of the CFDA."4 In addition, in a recent opinion imposing a $20,000 fine on the Republican State Leadership Committee, the Board held that the

Page 661

CFDA is applicable where "any viewer of the advertisement would understand, even without explicit word[s] of express advocacy, that when taken as a whole and in its factual context, the unmistakable intent of the advertisement was to oppose or otherwise influence [a particular candidate's] election."5

Given the Board's interpretation of the CFDA, if the Center pointed out the positions of candidates on issues of importance to it, it would run a nonspeculative risk that the Board would construe its ads as an "expression of preference...

To continue reading