838 F.2d 380 (9th Cir. 1988), 86-3641, Daily Herald Co. v. Munro

Docket Nº:86-3641.
Citation:838 F.2d 380
Party Name:The DAILY HERALD CO., American Broadcasting Cos., Inc., CBS Inc., National Broadcasting Co., Inc., and The New York Times Co., Plaintiffs-Appellees, v. Ralph MUNRO, in his official capacity as Secretary of State of the State of Washington, and Ken O. Eikenberry, in his official capacity as the Attorney General of the State of Washington, Defendants
Case Date:February 02, 1988
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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838 F.2d 380 (9th Cir. 1988)

The DAILY HERALD CO., American Broadcasting Cos., Inc., CBS

Inc., National Broadcasting Co., Inc., and The New

York Times Co., Plaintiffs-Appellees,


Ralph MUNRO, in his official capacity as Secretary of State

of the State of Washington, and Ken O. Eikenberry, in his

official capacity as the Attorney General of the State of

Washington, Defendants-Appellants.

No. 86-3641.

United States Court of Appeals, Ninth Circuit

February 2, 1988

Argued and Submitted Sept. 5, 1986.

Page 381

[Copyrighted Material Omitted]

Page 382

Floyd Abrams, Cahill Gordon & Reindel, New York City, and P. Cameron DeVore, Davis Wright & Jones, Seattle, Wash., for plaintiffs-appellees.

James M. Johnson, Sr. Asst. Atty. Gen., Olympia, Wash., for defendants-appellants.

Appeal from the United States District Court for the Western District of Washington.

Before FLETCHER, FERGUSON and REINHARDT, Circuit Judges.

FERGUSON, Circuit Judge:

Defendants, State of Washington officials, appeal the district court's decision that a Washington statute prohibiting exit polling within 300 feet of the polling place violated the First and Fourteenth Amendments as applied to plaintiffs, three television stations (American Broadcasting Companies, Inc., CBS Inc., and the National Broadcasting Company, Inc.) and two newspapers (The Daily Herald Company and The New York Times Company) ("media plaintiffs"). We affirm the district court.


This case is before this court for the second time. See Daily Herald Co. v. Munro, 758 F.2d 350 (9th Cir.1985) ("Daily Herald I "). It involves Wash.Rev.Code Sec. 29.51.020, a statute regulating conduct in and around polling places on election day. Violating the statute is a misdemeanor. Before 1983, the statute prohibited certain activities within 100 feet of the polling place. In 1983, the Washington Legislature amended the statute by adding subsections (1)(d) and (1)(e) and extending the area to 300 feet:

(1) On the day of any primary, general or special election, no person may, within a polling place, or in any public area within three hundred feet of any entrance to such polling place:


(d) Engage in any practice which interferes with the freedom of voters to exercise their franchise or disrupts the administration of the polling place; or

(e) Conduct any exit poll or public opinion poll with voters.

1983 Wash.Laws 1st Ex.Sess., ch. 33, Sec. 1.

Although the statute does not define the term "exit poll," at oral argument the parties agreed that an exit poll was a systematic questioning of voters as they left the polling place. The media plaintiffs' systematic requests of voters leaving the polling place that they volunteer to complete written questionnaires constituted exit polling. The state agreed that random questioning

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or interviewing of voters by journalists is not exit polling and is not prohibited. In making this distinction, the state explained that the legislature considered exit polling, but not random interviewing, to be a problem.

On December 12, 1983, the media plaintiffs filed this 42 U.S.C. Sec. 1983 action in federal district court against two Washington state officials in their official capacities to enjoin enforcement of Wash.Rev.Code Sec. 29.51.020(1 )(e ), the exit polling statute, alleging that enforcement violated the First and Fourteenth Amendments. The defendants counterclaimed under section 1983 and the Voting Rights Act, 42 U.S.C. Sec. 1971, for an injunction to prevent the media plaintiffs from violating the statute, alleging that their conduct infringed on Washington state voters' rights by disrupting the peace, order, and decorum of the polling place, and discouraging voting.

The district court found the statute constitutional in a summary judgment proceeding, and a panel of this court reversed and remanded for trial. Daily Herald I, 758 F.2d at 351. On remand, the district court heard evidence to answer eight factual questions posed by the panel. See id. at 351-52. The district court then held the statute unconstitutional as applied to the plaintiffs, and ruled against the state on its counterclaim. The district court found that the media plaintiffs conducted their exit polling in a "systematic and statistically reliable manner"; that information obtained from exit polling could not be obtained by other methods; that the 300-foot limit precluded exit polling; and that exit polling was not per se disruptive to the polling place. 1

On appeal, the state argues that the district court erred in holding that the statute was not the least restrictive means of advancing the state's interests, and in refusing to allow some of its witnesses to testify. The media plaintiffs argue that the statute unconstitutionally infringes on their First Amendment rights to gather and broadcast news.


We review de novo the "district court's application of the law to the facts on free speech questions." Jews for Jesus, Inc. v. Board of Airport Commissioners, 785 F.2d 791, 792 (9th Cir.1986), aff'd, --- U.S. ----, 107 S.Ct. 2568, 96 L.Ed.2d 500 (1987). The Constitution requires different standards for reviewing findings of fact in those cases in which the district court upholds a restriction on speech as constitutional than in those in which it does not. See Planned Parenthood Association/Chicago Area v. Chicago Transit Authority, 767 F.2d 1225, 1228-29 (7th Cir.1985) (citing Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984), and New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)). When a district court holds a restriction on speech constitutional, we conduct an independent, de novo examination of the facts. Id. When the government challenges the district court's holding that the government has unconstitutionally restricted speech, on the other hand, we review the district court findings of fact for clear error. Id. This rule "reflects a special solicitude for claims that the protections afforded by the First Amendment have been unduly abridged," id. at 1229, while not affording special protection "for the government's claim that it has been wrongly prevented from restricting speech," id. In this case, therefore, we review the district court's findings of fact for clear error.


In First Amendment cases, when a statute "covers the particular conduct" of the statute's challengers, it is "proper to reach the constitutional question involved in th[e] case." United States v. Grace, 461

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U.S. 171, 176, 103 S.Ct. 1702, 1706, 75 L.Ed.2d 736 (1983). The media plaintiffs' conduct violates the statute; we therefore reach the constitutional question. However, we address only subsection (1)(e), because that subsection is severable from the rest of the statute. 2 See Carey v. Brown, 447 U.S. 455, 459 n. 2, 100 S.Ct. 2286, 2289 n. 2, 65 L.Ed.2d 263 (1980).

The First Amendment provides that "Congress shall make no law ... abridging the freedom of speech." The media plaintiffs' exit polling constitutes speech protected by the First Amendment, not only in that the information disseminated based on the polls is speech, but also in that the process of obtaining the information requires a discussion between pollster and voter. " '[A] major purpose of [the First] Amendment was to protect the free discussion of governmental affairs. This of course includes discussions of candidates....' " Brown v. Hartlage, 456 U.S. 45, 52-53, 102 S.Ct. 1523, 1528, 71 L.Ed.2d 732 (1982) (quoting Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 1436, 16 L.Ed.2d 484 (1966)). Moreover, the First Amendment protects the media's right to gather news. See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 576, 100 S.Ct. 2814, 2827, 65 L.Ed.2d 973 (1980) ("Free speech carries with it some freedom to listen."); Branzburg v. Hayes, 408 U.S. 665, 681, 92 S.Ct. 2646, 2656, 33 L.Ed.2d 626 (1972) ("[W]ithout some protection for seeking out the news, freedom of the press could be eviscerated."); see also In re Express News Corp., 695 F.2d 807 (5th Cir.1982); United States v. Sherman, 581 F.2d 1358 (9th Cir.1978). 3 Exit polling is thus speech that is protected, on several levels, by the First Amendment. 4

The state may regulate exit polling only in limited ways. The standard we use to determine whether the regulation is constitutional depends on whether the speech to be regulated occurs in a traditional public forum, see Cornelius v. NAACP Legal Defense & Educational Fund, Inc., 473 U.S. 788, 797, 105 S.Ct. 3439, 3446, 87 L.Ed.2d 567 (1985), and whether the statute is content-based or amounts to an absolute prohibition of a type of speech, see United States v. Grace, 461 U.S. 171, 177, 103 S.Ct. 1702, 1706, 75 L.Ed.2d 736 (1983).

The public areas within 300 feet of the entrance to the polling place are traditional public forums because they traditionally are open to the public for expressive purposes, including random interviews by reporters, and encompass streets and sidewalks. 5 See Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37, 45, 103 S.Ct. 948, 954, 74

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L.Ed.2d 794 (1983). The statute is content-based because it regulates a specific subject matter, the discussion of voting, see Consolidated Edison Co. of New York v. Public Service Commission, 447 U.S. 530, 537, 100 S.Ct. 2326, 2333, 65 L.Ed.2d 319 (1980), and a certain category of speakers, exit pollsters, see Widmar v. Vincent, 454 U.S. 263, 267-70, 102 S.Ct. 269, 273-74, 70 L.Ed.2d 440 (1981).

A content-based statute that regulates speech in a public forum is constitutional only if it is narrowly tailored to accomplish a compelling government interest, Consolidated Edison Co., 447 U.S. at 540, 100 S.Ct. at 2334, and is the least restrictive means available, Cornelius, 473 U.S. at 800, 105 S.Ct. at 3448; Cinevision...

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