Progress v. Walsh

• Decision Date: 24 October 2013
• Docket Number: Docket No. 13–3889.
• Parties: NEW YORK PROGRESS AND PROTECTION PAC, Plaintiff–Appellant, v. James A. WALSH, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Second Circuit

733 F.3d 483

NEW YORK PROGRESS AND PROTECTION PAC, Plaintiff–Appellant,

v.James A. WALSH, et al., Defendants–Appellees.

Docket No. 13–3889.

United States Court of Appeals, Second Circuit.

Argued: Oct. 18, 2013.

Decided: Oct. 24, 2013.

Todd R. Geremia, Jones Day, New York, N.Y. (Michael A. Carvin, Louis K. Fisher, Warren Postman, Jones Day, Washington, DC, and Michael E. Rosman, Center for Individual Rights, Washington, DC, on the brief), for Appellant.

Judith Vale, (Richard P. Dearing, on the brief), for Eric T. Schneiderman, Attorney General of the State of New York, for Appellees.

Before: JACOBS and LOHIER, Circuit Judges, KOELTL,^* District Judge.

DENNIS JACOBS, Circuit Judge:

New York Progress and Protection PAC (“NYPPP”), an “unauthorized political committee” formed to advocate in favor of candidates in New York elections, brought suit against election officials in the State and City of New York, as well as the Board of Elections, to enjoin enforcement of New York State Election Law §§ 14–114(8) and 14–126(2). Section 14–114(8) imposes a $150,000 aggregate annual limit on certain political contributions by any person in New York State. Section 14–126(2) makes it a misdemeanor to fail to file required statements or to knowingly and willfully violate any other provision of the Election Law. The effect of these provisions is to prevent NYPPP from receiving more than $150,000 from any individual contributor in any calendar year. NYPPP is a political committee that engages solely in independent expenditures, that is, expenditures made without prearrangement or coordination with a candidate. NYPPP, which has a donor waiting to contribute $200,000 to its cause, alleges that, as applied to NYPPP, the cap violates its core First Amendment right to advocate in favor of Joseph Lhota in the upcoming New York mayoral election, and seeks declaratory and injunctive relief.

The New York City mayoral Republican primary was held September 10, 2013. NYPPP filed suit two weeks later, on September 25, 2013, and the following day made a motion for a preliminary injunction. The United States District Court for the Southern District of New York (Crotty, J.) ordered briefing and set oral argument for Tuesday, October 8. On Friday, October 11, NYPPP filed a letter reiterating the urgency of the matter in light of the approaching November 5 mayoral election. On October 16, NYPPP filed a petition for a writ of mandamus with this Court to compel the district court to rule on the pending motion. Soon after argument on the mandamus petition was scheduledfor Friday, October 18, the district court issued an opinion and order denying NYPPP's motion. N.Y. Progress & Prot. PAC v. Walsh, No. 13–civ–6769 (PAC), 2013 WL 5647168 (S.D.N.Y. Oct. 17, 2013) (“Op. & Order”). In quick succession, NYPPP withdrew its mandamus petition and appealed from the district court's order, and we agreed to hear argument as originally scheduled.

The appeal was heard on the merits at oral argument on October 18.

I

The district court's denial of a preliminary injunction is reviewed for abuse of discretion. WNET, Thirteen v. Aereo, Inc., 712 F.3d 676, 684 (2d Cir.2013). “Such an abuse occurs when the district court bases its ruling on an incorrect legal standard or on a clearly erroneous assessment of the facts.” Bronx Household of Faith v. Bd. of Educ. of City of N.Y., 331 F.3d 342, 348 (2d Cir.2003). “A finding is ‘clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948). Although we must defer to the district court's factual findings, in First Amendment cases, “an appellate court has an obligation to ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’ ” Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984) (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254, 284–286, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)).

“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). A plaintiff who seeks a preliminary injunction that will alter the status quo must demonstrate a “substantial” likelihood of success on the merits. Sunward Elecs., Inc. v. McDonald, 362 F.3d 17, 24 (2d Cir.2004).

II

“The loss of First Amendment freedoms, even for minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). “The harm is particularly irreparable where, as here, a plaintiff seeks to engage in political speech, as timing is of the essence in politics and a delay of even a day or two may be intolerable.” Klein v. City of San Clemente, 584 F.3d 1196, 1208 (9th Cir.2009) (internal quotation marks and alterations omitted). The State argues that injury is not presumed in First Amendment cases unless the challenged law “directly limits speech,” Bronx Household, 331 F.3d at 349, and that no such presumption arises in this case because the limits are imposed indirectly. But Bronx Household identified a category of indirect limits on speech by reference to Latino Officers Ass'n v. Safir, 170 F.3d 167, 171 (2d Cir.1999), which dealt with a policy requiring police officers to notify their department about their speaking engagements and to provide a written summary of the speech the day after the engagement. See Bronx Household, 331 F.3d at 350 (discussing Latino Officers ). There we “found the theoretical possibility of a chilling effect on officers' speech too conjecturaland insufficient to establish irreparable harm.” Id. The policy at issue in Latino Officers bears no resemblance to the direct restriction on political expression at issue here.

Although we express no opinion on the ultimate outcome, the plaintiff here has a substantial likelihood of success on the merits. The Supreme Court held in Citizens United v. FEC that the government has no anti-corruption interest in limiting independent expenditures. 558 U.S. 310, 357–61, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010). It follows that a donor to an independent expenditure committee such as NYPPP is even further removed from political candidates and may not be limited in his ability to contribute to such committees.¹ All federal circuit courts that have addressed this issue have so held. See Texans for Free Enterprise v. Tx. Ethics Comm'n, 732 F.3d 535, 538, 2013 WL 5639542, at *2 (5th Cir.2013) (“We adopt the reasoning of our sister courts and hold that the challenged law is incompatible with the First Amendment.”); Wis. Right to Life State Political Action Comm. v. Barland, 664 F.3d 139, 143 (7th Cir.2011) (“On the merits, after Citizens United ..., [the Wisconsin campaign finance law] is unconstitutional to the extent that it limits contributions to committees engaged solely in independent spending for political speech.”); Long Beach Area Chamber of Commerce v. City of Long Beach, 603 F.3d 684, 696 (9th Cir.2010) (“Nor has the City shown that contributions to the Chamber PACs for use as independent expenditures raise the specter of corruption or the appearance thereof.”); SpeechNow.org v. FEC, 599 F.3d 686, 695 (D.C.Cir.2010) ( en banc ) (“Given this analysis from Citizens United, we must conclude that the government has no anti-corruption interest in limiting contributions to an independent expenditure group....”); N.C. Right to Life, Inc. v. Leake, 525 F.3d 274, 293 (4th Cir.2008) (declaring unconstitutional, pre- Citizens United, contribution limit to independent expenditure political committees because no anti-corruption interest was furthered). The D.C. Circuit appeal, taken from the denial of a motion for a preliminary injunction, was heard en banc in the first instance and was decided unanimously. Numerous federal district courts across the country have struck down analogous laws.²

Few contested legal questions are answered so consistently by so many courts and judges. The district court, however, conducted no analysis of NYPPP's likelihood of success.³ See Op. & Order at *14 (“[T]he Court need not address whether NYPPP can establish a substantial likelihood of success on the merits or irreparable harm.”). Consideration of the merits is virtually indispensable in the First Amendment context, where the likelihood of success on the merits is the dominant, if not the dispositive, factor. See, e.g., Joelner v. Vill. of Wash. Park, 378 F.3d 613, 620 (7th Cir.2004) (“When a party seeks a preliminary injunction on the basis of a potential First Amendment violation, the likelihood of success on the merits will often be the determinative factor.” (citing Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir.1998))). This was reversible error.

III

The district court combines its analysis of the balance of hardships and the public interest, and assumes that by definition the interests of the State are aligned with those of the public. Op. & Order at *7 (“Since the State Defendants represent the public, there are important public interests at stake, which must be weighed against the hardships suffered by NYPPP if an injunction is not granted.”). However, securing First Amendment rights is in the public interest. SeeAm. Civil Liberties Union v. Ashcroft, 322 F.3d 240, 247 (3d Cir.2003) (“[T]he Government does not have an interest in the enforcement of an unconstitutional law.” (internal quotation marks omitted)).

The hardship faced by NYPPP and its...