Auburn Police Union v. Carpenter

• Decision Date: 13 July 1992
• Docket Number: Civ. No. 91-292-P-H.
• Citation: 798 F. Supp. 819
• Parties: AUBURN POLICE UNION, et al., Plaintiffs, v. Michael E. CARPENTER, as Attorney General of the State of Maine, Defendant.
• Court: U.S. District Court — District of Maine

798 F. Supp. 819

AUBURN POLICE UNION, et al., Plaintiffs, v. Michael E. CARPENTER, as Attorney General of the State of Maine, Defendant.

Civ. No. 91-292-P-H.

United States District Court, D. Maine.

July 13, 1992.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Leland N. Chisolm, Kelly, Remmel & Zimmerman, Portland, Me., Errol Copilevitz, John P. Jennings, Jr., Copilevitz, Bryant, Gray & Jennings, Kansas City, Mo., for plaintiffs.

Stephen L. Wessler, Asst. Atty. Gen., Augusta, Me., for defendant.

MEMORANDUM OF DECISION

HORNBY, District Judge.

This case addresses the constitutionality, under the First and Fourteenth Amendments, of a Maine statute prohibiting fundraising that tangibly benefits law enforcement activities.¹ The statute can be enforced by injunctive relief and civil penalties. I conclude that the injunctive relief amounts to an unconstitutional prior restraint but that otherwise the statute is constitutional. Consequently, I accept in part and reject in part the decision of the United States Magistrate Judge.²

I. Procedural Background

In 1977, the Maine Legislature prohibited law enforcement personnel from general public fundraising. 25 M.R.S.A. § 3702. The law was amended in 1983 to exempt game wardens in limited circumstances. Id. In 1985, the Maine Supreme Judicial Court, sitting as the Law Court, upheld the constitutionality of the statute. See State v. Maine State Troopers Ass'n, 491 A.2d 538 (Me.1985), appeal dismissed, 474 U.S. 802, 106 S.Ct. 34, 88 L.Ed.2d 28 (1985). The Law Court found that the State had a compelling interest in avoiding police coercion and that such coercion was inherent any time a law enforcement officer asked a business or other person for money. Id. at 542-43. The Law Court also found that the statute was narrowly drawn to accomplish this compelling interest. Id. The Law Court did, however, invalidate the statutory exception for game wardens. Id. at 544. The United States Supreme Court summarily dismissed the appeal. 474 U.S. 802, 106 S.Ct. 34, 88 L.Ed.2d 28.

In 1989, the Maine Legislature again amended the statute, this time exempting certain activities of the Attorney General, 25 M.R.S.A. § 3706 (repealed), and permitting public fundraising for a memorial to law enforcement personnel killed in the line of duty. P. & S.L. 1989 ch. 47. In a later lawsuit, this Court found the amended statute unconstitutional because, in creating the exceptions, the Legislature had demonstrated that it no longer viewed the avoidance of police coercion as a compelling interest. Auburn Police Union v. Tierney, 756 F.Supp. 610 (D.Me.1991).

In light of that holding the Legislature repealed the exceptions and redrafted the statute to provide that fundraising from the general public is illegal if the money will "tangibly benefit" law enforcement. 25 M.R.S.A. § 3702-A. The legislative history makes clear, and regulations confirm, that the new language prohibits most police fundraising, but permits police personnel to raise money for charities unrelated to law enforcement.³ In addition, the statute preserves an exemption permitting law enforcement personnel to raise money for purposes of campaigning for public office. 25 M.R.S.A. § 3703.⁴ The office of sheriff, for example, is an elected office under both the Maine Constitution and Maine statute. Me. Const. art. IX, § 10; 30 M.R.S.A. § 901.

In this new declaratory judgment action, various organizations representing police interests, as well as individuals and organizations that raise money on behalf of police activities, have challenged the constitutionality of the statute under the United States Constitution. The underlying facts are stipulated.

II. First Amendment Challenges

A. Standard of Review

This case involves the solicitation of money. Both sides agree that commercial speech (as the United States Supreme Court has used that term) is not involved here. Instead, this solicitation of money is to be treated as a traditional speech activity that receives full First Amendment protection. See International Society for Krishna Consciousness, Inc. v. Lee, ___ U.S. ___, 112 S.Ct. 2711, ___ L.Ed.2d ___ (1992) (solicitations by Society for Krishna Consciousness at airports); Riley v. Nat'l Fed'n of the Blind of North Carolina, Inc., 487 U.S. 781, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988) (solicitations by professional fundraisers for various causes and charitable organizations); Secretary of State of Md. v. J.H. Munson Co. Inc., 467 U.S. 947, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984) (professional fundraiser whose customers included various chapters of the Fraternal Order of Police); Village of Schaumburg v. Citizens for a Better Env't, 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980) (solicitation on behalf of nonprofit environmental protection organization).

Although the State Attorney General's Office has resisted the conclusion, the restriction imposed on free speech here is clearly content-based. Law enforcement personnel may go door-to-door to homes and businesses and talk on a variety of subjects. They can even raise money for various kinds of charitable undertakings. But they run afoul of the law if their conversation turns to money for bullet-proof vests or for the local police union. The conclusion is thus unavoidable that the content of the speech determines what is permitted and what is prohibited. Such content-based restrictions on speech amount to the censorship of ideas in its classic form and must therefore receive "exacting scrutiny" under the First Amendment. For the statute here to survive attack, it must further a compelling state interest and its measures must be narrowly drawn to accomplish that end. Burson v. Freeman, ___ U.S. ___, ___, 112 S.Ct. 1846, 1849, 119 L.Ed.2d 5 (1992).

B. Prior Restraint

This statute is enforced through the Maine Unfair Trade Practices Act. As a result, the Attorney General may seek both injunctive relief and civil penalties. 5 M.R.S.A. § 209.

Injunctive relief prohibiting speech before it is even uttered unquestionably amounts to a "prior" or "previous" restraint. Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971); Melvile B. Nimmer, Nimmer On Freedom of Speech § 4.03 (1991). The United States Supreme Court has said over and over again that there is a very heavy presumption against the constitutional validity of prior restraints. New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 (1963) ("any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity"), citing Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). Indeed, the First Circuit has observed that in two centuries of our history the United States Supreme Court has never sustained a prior restraint on pure speech. In re Providence Journal Co., 820 F.2d 1342, 1348 (1st Cir.1986). The United States Supreme Court has not applied the prior restraint doctrine only to restraints on the press, but has also extended it to freedom of speech generally. See, e.g., Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574 (1948) (invalidating an ordinance that prohibited use of loudspeakers without the permission of the City's Chief of Police because "it established a previous restraint on the right of free speech"); Kunz v. New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280 (1951) (invalidating a New York City ordinance forbidding public worship meetings on the streets without a permit because the ordinance was a prior restraint).⁵

To be sure, there are limited exceptions to the prior restraint doctrine. Reasonable time, manner and place restrictions for use of a public forum are permitted. United States v. Kokinda, 497 U.S. 720, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990); see generally Nimmer at § 4.06B. A prior restraint against fraudulent commercial speech may be constitutionally permissible, see Donaldson v. Read Magazine, Inc., 333 U.S. 178, 189-91, 68 S.Ct. 591, 597-98, 92 L.Ed. 628 (1948); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771-72 n. 24, 96 S.Ct. 1817, 1830-31 n. 24, 48 L.Ed.2d 346 (1976), as well as restraints against copyright infringement and antitrust violations. But these exceptions do not apply here. No permit is available for these solicitation activities under any circumstances. Since this case involves noncommercial speech, the fraudulent commercial speech exception is inapplicable. Moreover, none of the copyright or antitrust arguments apply.

Finally, given the cases in which the United States Supreme Court has prohibited prior restraints, such as the Pentagon Papers case where the national security itself was said to be at stake, New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822, there is no basis for enlarging these limited exceptions to the prior restraint doctrine and finding that the state interest here—avoiding the inherent coercion in police fundraising— justifies an injunction rather than the penalties that can be imposed if illegal fundraising occurs.⁶ Enforcement of the statute by injunctive relief is therefore unconstitutional.⁷

At oral argument the State Attorney General's Office stated that injunctive relief is the primary enforcement device for the statute and that if injunctive relief is eliminated the statute is essentially gutted. Since that was a statement made under the pressures of oral argument, it may not represent the State's considered position on the legislation. I will therefore proceed to address the constitutionality of the statute if it is enforced without injunctive relief.⁸

C. Constitutionality of the Statute Without Prior Restraint

By summarily dismissing the appeal from the Law Court's decision in Maine State Troopers Ass'n, the United States Supreme...