Wyoming Gun Owners v. Buchanon

• Decision Date: 21 March 2022
• Docket Number: Case No. 21-CV-108-SWS
• Parties: WYOMING GUN OWNERS, Plaintiff, v. Wyoming Secretary of State Edward BUCHANON, Wyoming Attorney General Bridget Hill, Wyoming Deputy Secretary of State Karen Wheeler, and Wyoming Secretary of State Election Division Director Kai Schon, in their official capacities, Defendants.
• Court: U.S. District Court — District of Wyoming

592 F.Supp.3d 1014

WYOMING GUN OWNERS, Plaintiff,

v.Wyoming Secretary of State Edward BUCHANON, Wyoming Attorney General Bridget Hill, Wyoming Deputy Secretary of State Karen Wheeler, and Wyoming Secretary of State Election Division Director Kai Schon, in their official capacities, Defendants.

Case No. 21-CV-108-SWS

United States District Court, D. Wyoming.

Signed March 21, 2022

Endel Kolde, Pro Hac Vice, Institute for Free Speech, Washington, DC, Stephen R. Klein, Pro Hac Vice, Barr & Klein PLLC, Washington, DC, Seth A. Johnson, Slow & Steady Law Office PLLC, Saratoga, WY, for Plaintiff.

Brandi Lee Monger, James Bradley Peters, MacKenzie Williams, Wyoming Attorney General, Civil Division, Cheyenne, WY, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT

Scott W. Skavdahl, United States District Judge

This case demonstrates the delicate balance of the First Amendment right to engage in political speech verses the need to provide for an informed electorate during elections by requiring disclosure of those who are funding media and promoting certain candidates or issues throughout election season. However, while this is of critical importance, the State can only impose these disclosure and disclaimer requirements where it satisfies exacting scrutiny. With these competing interests and standard in mind, the Court examines whether Wyo. Stat. Ann. § 22-25-106(h) violates the First amendment and holds that it does.

FACTUAL BACKGROUND

Plaintiff Wyoming Gun Owners ("WyGO") is a non-profit corporation whose mission is "defending and advancing the Second Amendment rights of all law-abiding citizens in the state of Wyoming—and exposing legislators who refuse to do the same thing." (ECF No. 30 at 6.) WyGO's members subscribe to receive communications from WyGO about pertinent issues relevant to state and local Second Amendment legislation. Anyone can sign up to receive emails from WyGO about gun policy and candidate positions. (Id. at 7.) WyGO uses a variety of media and methods to promote its messaging, including posts to its own website, dissemination of candidate surveys, videos, emails to members and non-members, radio ads, digital ads, social media posts, and direct mailings. (Id. ) WyGo often increases its messaging during election season when gun-policy issues peak public interest.

In August 2020, before Wyoming's August primary election (ECF No. 46 at 4), WyGO paid a Cheyenne commercial radio station roughly $1,200 to run a minute-long radio ad. (Id. at 7.) The radio advertisement mentioned two opposing state senate candidates by name: Anthony Bouchard and Erin Johnson. The ad commended Bouchard as a champion and "a nationally known conservative leader who has always led the fight for Wyoming gun owners." (ECF No. 46 at 3.) The ad criticized Erin Johnson, "a self-described country-club, chamber of commerce moderate" for failing to discuss gun rights on her political website. (Id. ) The ad stated this failure was "pathetic" and so was Erin Johnson.¹ (Id. )

On October 14, 2020, WyGO received a notice from Defendant Kai Schon, the Election Division Director of the Wyoming Secretary of State's Office, stating the Election Division received a complaint about the radio ad. (ECF No. 30-6.) Specifically, this complaint alleged WyGO had "engaged in political activity which would require campaign finance reports to be filed" under Wyoming's campaign finance laws. (Id. at 2.) This notice did not specify what communication constituted political activity but determined "advertisements paid for by WyGO" were "clearly electioneering communications." (Id. ) Because WyGO had not filed an itemized statement with contributions and expenditures with the Secretary of State's office, WyGO had violated § Wyo. Stat. Ann. § 22-25-106(h). As a consequence, the notice required WyGO to pay a $500 civil fine. (Id. )

Wyo. Stat. Ann. § 22-25-106(h) states in relevant part:

An organization that expends in excess of five hundred dollars ($500.00) in any primary, general, or special election to cause an independent expenditure or electioneering communication to be made shall file an itemized statement of contributions and expenditures with the appropriate filing office[.] The statement shall:

(i) Identify the organization causing the electioneering communication or independent expenditure to be made and the individual acting on behalf of the organization causing the communication or expenditure to be made, if applicable;

...

(iv) Only list those expenditures and contributions which relate to an independent expenditure or electioneering communication; (v) Set forth the full and complete record of contributions which relate to an independent expenditure or electioneering communication, including cash, goods or services and actual and promised expenditures. The date of each contribution of one hundred dollars ($100.00) or more, any expenditure or obligation, the name of the person from whom received or to whom paid and the purpose of each expenditure or obligation shall be listed. All contributions under one hundred dollars ($100.00) shall be reported but need not be itemized. Should the accumulation of contributions from a person exceed the one hundred dollar ($100.00) threshold, all contributions from that person shall be itemized[.]

In response to the notice from Kai Schon, counsel for WyGO asked the Election Division to "promptly retract [their] threat against WyGO and dismiss the complaint" and argued the notice did not specify what communication violated the statute. (ECF No. 30-7 at 2.) The Office of the Attorney General replied, identifying the radio ad as the offending communication. (ECF No. 30-8 at 3.) The letter from the Attorney General's office explained the radio advertisement was defined as an electioneering communication, under Wyo. Stat. Ann. § 22-25-101(c), because the ad identified two candidates up for election with less than thirty days before the primary and could only be reasonably interpreted as an appeal to vote for Bouchard and against Johnson. (Id. ) The ad "discusses the two candidates’ purported positions on those issues as a way to instruct listeners which candidate to support or oppose." (Id. )

Wyo. Stat. Ann. § 22-25-101(c) defines an electioneering communication as:

[A]ny communication, including an advertisement, which is publicly distributed as a billboard, brochure, email, mailing, magazine, pamphlet or periodical, as the component of an internet website or newspaper or by the facilities of a cable television system, electronic communication network, internet streaming service, radio station, telephone or cellular system, television station or satellite system and which:

(A) Refers to or depicts a clearly identified candidate for nomination or election to public office or a clearly identified ballot proposition and which does not expressly advocate the nomination, election or defeat of the candidate or the adoption or defeat of the ballot proposition;

(B) Can only be reasonably interpreted as an appeal to vote for or against the candidate or ballot proposition;

(C) Is made within thirty (30) calendar days of a primary election, sixty (60) calendar days of a general election or twenty-one (21) calendar days of any special election during which the candidate or ballot proposition will appear on the ballot; and

(D) is targeted to the electors in the geographic area:

(I) The candidate would represent if elected; or

(II) Affected by the ballot proposition.

WyGO did not respond with a campaign finance report, any type of electioneering communication or expenditure disclosure statement. On December 2, 2020, the Secretary of State imposed a final order directing WyGO to pay the $500 civil fine. (ECF No. 30-9.) The order specified the penalty was imposed for the $1200 spent on the radio ad. (ECF No. 30-9 at 3.)² WyGO paid the fine (ECF No. 51 at 30 n. 5) and initiated this action in June 2021 asserting four claims for relief (ECF No. 1).

Defendants promptly filed a Motion to Dismiss Plaintiff's Complaint. (ECF No. 23). In granting in part and denying in part Defendants’ Motion to Dismiss (ECF No. 38) this Court dismissed several of Plaintiff's claims, leaving only three issues for decision on motion for summary judgment: (1) whether "relate to" as used in § 22-25-106(h)(iv) is unconstitutionally vague; (2) whether "commentary" as used in § 22-25-101(c)(ii)(B) is unconstitutionally vague; and (3) whether Wyoming Statute § 22-25-106(h) is unconstitutional as applied to WyGO because it chills speech and violates freedom of association under the First amendment. (See ECF No. 38.) Plaintiff also filed for a preliminary injunction to prevent Defendants from enforcing § 22-25-106(h) and § 22-25-101(c)(i). (ECF No. 29.) While the Court held Plaintiff was likely to succeed on the merits of their claim, in the absence of any impending election, it found there was no risk of immediate injury and denied the motion for preliminary injunction. (ECF No. 39.) The issue is now before the Court on cross-motions for summary judgment.

Defendants argue the radio advertisement could only reasonably be interpreted as an appeal to vote for Bouchard and against Johnson. (ECF No. 46 at 10.) Defendants cite Federal Election Comm'n v. Wisconsin Right to Life, Inc. , 551 U.S. 449, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007), which held "a court should find that an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." Id. at 470, 127 S.Ct. 2652. Based on this precedent, § 22-25-106(h) is not unconstitutional as applied to WyGO, because Supreme Court case law dictates the State may regulate the functional equivalent of express advocacy.

The Defendants then argue neither "relate to" nor "commentary" are...