Human Life Of Wash. Inc. v. Brumsickle

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation624 F.3d 990
Docket NumberNo. 09-35128.,09-35128.
PartiesHUMAN LIFE OF WASHINGTON INC., Plaintiff-Appellant, v. Chair Bill BRUMSICKLE; Vice Chair Ken Schellberg; Secretary Dave Seabrook; Jane Noland; Jim Clements, in their Official Capacities as Officers and Members of the Washington State Public Disclosure Commission; Rob McKenna, in His Official Capacity as Washington Attorney General, Defendants-Appellees.
Decision Date12 October 2010

624 F.3d 990

Chair Bill BRUMSICKLE; Vice Chair Ken Schellberg; Secretary Dave Seabrook; Jane Noland; Jim Clements, in their Official Capacities as Officers and Members of the Washington State Public Disclosure Commission; Rob McKenna, in His Official Capacity as Washington Attorney General, Defendants-Appellees.

No. 09-35128.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted May 7, 2010.
Filed Oct. 12, 2010.

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John J. White, Jr. of Livengood, Fitzgerald & Alskog, PLLC (Kirkland, WA) for the appellant.

James Bopp, Jr. (argued), Richard E. Coleson, Jeffrey P. Gallant, and Clayton J. Callen of Bopp, Coleson & Bostrom (Terre Haute, IN) for the appellant.

Robert M. McKenna, Linda A. Dalton, Gordon P. Karg, and Nancy J. Krier (argued) of the State of Washington (Olympia, WA) for the appellee.

J. Gerald Hebert, Paul S. Ryan, and Tara Malloy of the Campaign Legal Center (Washington, DC) as amicus curiae.

Appeal from the United States District Court for the Western District of Washington, John C. Coughenour, District Judge, Presiding. D.C. No. 2:08-cv-00590-JCC.

Before: KIM McLANE WARDLAW and RONALD M. GOULD, Circuit Judges, and JAMES WARE, District Judge. *

WARDLAW, Circuit Judge:

“[T]he people in our democracy are entrusted with the responsibility for judging and evaluating the relative merits of conflicting arguments. They may consider, in making their judgment, the source and credibility of the advocate.”

- First National Bank v. Bellotti, 435 U.S. 765, 791-92, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978) (footnotes omitted)

Human Life of Washington (“Human Life”), a nonprofit, pro-life advocacy corporation, appeals the district court's denial of summary judgment in its suit against various Washington state officials. 1 Human Life challenges, on First Amendment grounds, Washington state's Public Disclosure Law (“Disclosure Law”), enacted as part of its campaign finance regulation. The Supreme Court recently concluded that the government “may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether.” Citizens United v. FEC, ---U.S. ----, 130 S.Ct. 876, 886, --- L.Ed.2d ---- (2010). Based on this principle, and for many of the same reasons articulated by the well-reasoned opinion of the district court, we too conclude that Washington State's disclosure requirements do not violate the

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First Amendment, either facially or as applied to Human Life and its proposed campaign to educate voters about the dangers of physician-assisted suicide in connection with a ballot measure that would legalize the practice.

A. Human Life of Washington and Initiative 1000

In 2008, Washington voters were asked to consider a ballot initiative, Initiative 1000, which would “permit terminally ill, competent, adult Washington residents medically predicted to die within six months to request and self-administer lethal medication prescribed by a physician.” Wash. Initiative Measure No. 1000 (2008). The measure quickly spawned an “emotionally charged battle” between its advocates and its opponents. Associated Press, Washington State Battles over Vote to Allow Lethal Meds for Dying Patients, Oct. 11, 2008; see also John Iwasaki, “Playing God” or Dignified Death? Faith Based Groups Taking Crucial Role in Initiative Battle, Seattle Post-Intelligencer, Oct. 13, 2008 (“On their respective Web sites, the campaigns for and against Initiative 1000 include point-by-point attempts to debunk the other side in the debate over physician-assisted suicide, the contentious end-of-life issue facing Washington voters in the general election.”).

Human Life opposed Initiative 1000, consistent with its mission to “reestablish throughout our culture, the recognition that all beings of human origin are persons endowed with intrinsic dignity and the inalienable right to life from conception to natural death.” In pursuit of this goal, Human Life engages in “educational, legislative, and judicial efforts” to “seek reform in our culture's understanding.” Over the years, Human Life has expended considerable time and resources opposing efforts to legalize physician-assisted suicide in Washington. For example, in 1991, Human Life and its affiliated political action committee, HLPAC, actively participated in the successful campaign to defeat Initiative 119, which would have amended Washington's constitution to legalize physician-assisted suicide. In 2008, on the day that Initiative 1000 was filed, Human Life issued a “special report” in an attempt to prevent the initiative from receiving a sufficient number of signatures to qualify for the ballot. Urging readers to “ENCOURAGE OTHERS NOT TO SIGN THE INITIATIVE,” the report stated: “One would hope that it would deeply trouble the conscience of anyone inclined to sign this initiative petition, knowing they are signing some else's death warrant.”

With physician-assisted suicide back on the ballot in 2008, Human Life undertook plans to solicit funds for and launch a public education campaign. As Human Life explained in its verified complaint, filed April 16, 2008,

The year 2008 is an especially vital time for HLW to address the physician-assisted suicide issue because people again will be unusually attentive as it swirls to the forefront of public attention.... The physician-assisted suicide issue is in people's focus because former Governor Booth Gardner filed the proposed I-1000 with the Secretary of State on January 9, 2008, with qualifying signatures due by July 3, 2008.

Human Life's planned educational campaign consisted of three proposed public communications, as well as “substantially similar activities” that had not yet been identified.

First, Human Life would distribute a solicitation letter via email, regular mail, and its website. The proposed letter, which did not expressly mention Initiative 1000, opened: “The assisted suicide issue just won't go away. But neither will we.

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We are here to argue the prolife side on your behalf. However, as this grisly issue heats up again in 2008, Human Life of Washington needs your help to pay for some radio ads to educate the public.” It went on to recount the defeat of the 1991 ballot initiative, to draw parallels between mid-19th century slavery abolitionists and modern-day pro-life advocates, and to discuss a study by a palliative-care specialist in Scotland, which it asserted “shows that problems with Oregon's assisted suicide scheme are real.” In closing, the letter requested a donation to fund Human Life's public education campaign, stating that “[t]he public needs to receive this sort of information as assisted suicide advocates once again offer biased, inaccurate, and rosy depictions of this grisly practice.”

Second, in addition to sending letters, Human Life intended to target individual voters by telephone. After introducing themselves as callers on behalf of Human Life, callers would read from a proposed script, alluding to Initiative 1000. The scripts read:

Right now we are trying to reach every pro-life household in Washington with an urgent update. As you've probably heard, former Governor Booth Gardner is trying to get an initiative on the ballot this fall that would legalize physician-assisted suicide in the State of Washington. We fear that many Washingtonians do not know the grisly facts about physician-assisted-suicide and its devastating effect on a culture of life.

Callers then would solicit financial contributions to Human Life's public education and advocacy activities.

Finally, Human Life intended to broadcast radio advertisements. It developed four proposed scripts for thirty-second radio spots. In one, a male voice would say, “Some people think that persons with disabilities don't have lives worth living,” to which a female voice would respond, “Like Nazi docs!” In another proposed radio spot, the speaker would note that “[a]ssisted suicide is back in the news” and would go on to summarize results from a study about assisted suicide in Oregon. A third proposed advertisement would feature a male voice warning that physician-assisted suicide is a “slippery slope” because “people who can't consent-like babies-are being killed.” Finally, in a fourth proposed radio spot, a speaker would warn that assisted suicide “turns doctors into killers.” None of the proposed advertisements would expressly mention Initiative 1000, and each would end with a disclosure that the advertisement was sponsored by Human Life.

Human Life's educational campaign never got off the ground, however, because Human Life feared that its proposed communications would subject it to the requirements of Washington's Disclosure Law, a law that Human Life contends violates its First Amendment rights.

B. Washington's Public Disclosure Law

The Disclosure Law was enacted by ballot initiative in 1972, with the support of 72% of the voting public. It declares as Washington state's public policy “[t]hat political campaign and lobbying contributions and expenditures be fully disclosed to the public and that secrecy is to be avoided.” Wash. Rev.Code § 42.17.010(1). It also states as Washington's public policy that “full access to information concerning the conduct of government on every level must be assured as a fundamental and necessary precondition to the sound governance of a free society.” Id. § 42.17.010(11). Under the Disclosure Law, this policy is implemented through detailed reporting, registration, and disclosure requirements (collectively, “disclosure requirements”), which are administered and enforced by

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Washington's Public Disclosure Commission (the “Commission”), a bipartisan citizen's commission whose live members are appointed by the governor and confirmed by...

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