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Calzone v. Summers

United States Court of Appeals, Eighth Circuit

November 1, 2019

Ronald John Calzone Plaintiff - Appellant
v.
Donald Summers, in his official capacity as Chairman of the Missouri Ethics Commission; Kim Benjamin, in her official capacity as Vice-Chairwoman of the Missouri Ethics Commission; George Ratermann, in his official capacity as Commissioner of the Missouri Ethics Commission; Wayne Henke, in his official capacity as Commissioner of the Missouri Ethics Commission; Sherman Birkes, in his official capacity as Commissioner of the Missouri Ethics Commission; Cheryl Walker, in her official capacity as Commissioner of the Missouri Ethics Commission; Elizabeth Ziegler, in her official capacity as Executive Director of the Missouri Ethics Commission Defendants - Appellees

          Submitted: April 19, 2019

          Appeal from United States District Court for the Western District of Missouri - Jefferson City

          Before SMITH, Chief Judge, LOKEN, COLLOTON, GRUENDER, BENTON, SHEPHERD, KELLY, ERICKSON, GRASZ, STRAS, and KOBES, Circuit Judges, En Banc.

          STRAS, Circuit Judge, with whom SMITH, Chief Judge, GRUENDER, ERICKSON, GRASZ, and KOBES, Circuit Judges, join.

         Ronald Calzone frequently talks to Missouri legislators about political issues that are important to him. The State says that, because he runs a nonprofit corporation, he may do so only if he goes through the effort and expense of registering as a "legislative lobbyist," even though no one pays him and his activities do not involve spending money. We hold that this burden, as applied to Calzone, violates the First Amendment.

         I.

         Calzone is an active figure in Missouri politics. He "regularly speaks to legislators," sometimes in one-on-one meetings and other times by testifying before Missouri's General Assembly. Importantly, however, Calzone only talks and listens when pressing his views with legislators. He does not get paid in connection with his activities, nor does he "make expenditures for the benefit of" public officials.

         Calzone often acts through a nonprofit corporation called Missouri First, Inc. The parties agree that this organization is effectively his alter ego: he is its incorporator, sole officer, president, director, and registered agent. According to Missouri First's charter, it seeks to "educat[e] and mobiliz[e] the public" about matters of civic importance and support various candidates and initiatives. Like Calzone himself, Missouri First spends and receives no money in pursuit of these goals.

         According to Missouri, Calzone's ties to Missouri First make him a "legislative lobbyist." Mo. Rev. Stat. § 105.470(5). As relevant here, this label applies to "any natural person who acts for the purpose of attempting to influence" legislative activities and has been "designated to act as a lobbyist by any . . . nonprofit corporation, association[, ] or other entity." Id. § 105.470(5)(c). All lobbyists must navigate a maze of legal requirements.

         They must first file a registration form, under penalty of perjury, with the Missouri Ethics Commission within five days of beginning any lobbying activities. Id. § 105.473.1. The form, which costs ten dollars to file, requires disclosure of the lobbyist's name and business address, as well as the names and addresses of anyone "employ[ed] for lobbying purposes." Id. This information becomes a matter of public record. Id.

         There are also ongoing obligations. Lobbyists must update the Missouri Ethics Commission within one week of a "change in [their] employment or representation." Id. They are required to file monthly declarations, again under penalty of perjury, listing any expenditures they make. Id. § 105.473.3. And twice a year, they have to disclose what "proposed legislation [they] . . . supported or opposed." Id. § 105.473.12. All of these reports are public too. Id. §§ 105.473.6, 105.477.4, .5.

         Noncompliance carries severe penalties. In addition to hefty fines, violators face prison time-up to four years for repeat offenders. See id. §§ 105.473, 105.478, 558.002.1, 558.011.1(5), (7). Anyone can initiate an investigation simply by filing a complaint with the Missouri Ethics Commission. See id. §§ 105.472, 105.966. Calzone has faced two official complaints, including one that resulted in a formal inquiry.

         Convinced that these restrictions violate his First Amendment free speech and petition rights, Calzone sought a permanent injunction to prevent members of the Missouri Ethics Commission from "enforcing [the law] against [him]."[1] In support of his request for individual injunctive relief, Calzone's focus has been on why the restrictions are unconstitutional in light of his particular method of advocacy. He has stressed, for example, that he "does not accept money for his activism, nor does he spend money on legislators and legislative staff when he communicates with them about his public policy beliefs." Suggestions in Support of Plaintiff's Motion for a Temporary Restraining Order and Preliminary Injunctive Relief at 11.

         Calzone's lawsuit has so far been unsuccessful. The district court denied a permanent injunction and entered final judgment against Calzone. Working from stipulated facts, the court ruled that his as-applied challenge failed because enforcement of the law against him had a "substantial relation" to "sufficiently important" state interests. It also rejected Calzone's argument that the law is unconstitutionally vague.

         II.

         Both of Calzone's constitutional claims present purely legal questions that we review de novo. See Llapa-Sinchi v. Mukasey, 520 F.3d 897, 899 (8th Cir. 2008). The ultimate decision of whether to grant or deny a permanent injunction, however, lies within the district court's discretion. See Kittle-Aikeley v. Strong, 844 F.3d 727, 735 (8th Cir. 2016) (en banc).

         A.

         We begin with Calzone's claim that Missouri's lobbying requirements violate his freedom of speech and right to petition the government. See U.S. Const. amend. I. This challenge, unlike his void-for-vagueness claim, is as-applied, meaning that we must examine the constitutionality of the law in light of "the particular facts of [Calzone's] case." Phelps-Roper v. Ricketts, 867 F.3d 883, 896 (8th Cir. 2017) (citation omitted). And that means every fact, including that Calzone "does not make expenditures for the benefit of . . . public officials . . . in connection with" his advocacy.[2] Order at 6, June 26, 2017 (reciting the jointly stipulated facts); see also Verified Compl. at 1 ¶ 2 ("[H]e does not give legislators any gifts."); id. at 11 ¶¶ 56-60 (incorporating his allegations to support his request for an injunction). Cf. Christian Legal Soc'y Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, 561 U.S. 661, 676 (2010) (recognizing that litigants are "entitled to have their case tried upon" stipulated facts (brackets and citation omitted)); Gander v. Livoti, 250 F.3d 606, 609 (8th Cir. 2001) ("Valid stipulations are controlling and conclusive, and courts must enforce them.").

         The dissenters suggest that there is something different about this case, primarily because Calzone has consistently emphasized his lack of pay over his lack of expenditures. But the test for forfeiture is not how many times a litigant has raised a particular issue or fact, but rather whether it has been raised in a timely manner. See United States v. Olano, 507 U.S. 725, 731 (1993) (describing forfeiture as "the failure to make timely assertion of the right" (emphasis added and citation omitted)); Universal Title Ins. v. United States, 942 F.2d 1311, 1314 (8th Cir. 1991) (acknowledging our discretion to consider a "nuance or shift in approach" that a party did not "similarly urge[]" before the district court (citation omitted)). And here it has been. Calzone has raised the no-expenditures point at numerous steps in the litigation-starting with his appearance before the Missouri Ethics Commission; continuing with his complaint, his memorandum in support of a permanent injunction, and the joint stipulation of facts;[3] and ending with his briefs to this court.[4]Only the dissenters disagree.

         Even Missouri seemingly reached the same conclusion long ago, having never raised a forfeiture objection despite numerous opportunities to do so. As counsel for Missouri put it at oral argument before the original three-judge panel, Calzone has

two reasons why he thinks he's special compared to other lobbyists. One is he's not buying lunch and giving money to [the] legislators. Two, his organization that has him in the post of president isn't paying him to be their president, et cetera. I understood his brief to say that both of these points were salient to his claim.

Oral Arg. at 18:00-19:45 (emphasis added). Missouri had a clear opportunity to raise forfeiture after it became apparent that a threshold disagreement between the members of the original panel was whether Calzone had preserved his no-expenditures point. See Calzone v. Summers, 909 F.3d 940, 946-47 (8th Cir. 2018), reh'g en banc granted, opinion vacated (Jan. 28, 2019); id. at 951-53 & n.5 (Stras, J., dissenting). Rather than doing so, however, Missouri continued to focus exclusively on the merits of Calzone's First Amendment challenge, both in its response to his petition for rehearing en banc and in the face of questioning from the en banc court. See Resp. Br. Appellees Pet. Reh'g or Reh'g En Banc at 2, 6-8, 11, 14; Oral Arg. at 31:38-32:11; see also Pl.-Appellant's Pet. Reh'g and Reh'g En Banc at 2-10 (leading with the argument that the panel majority had ignored aspects of his as-applied challenge). Regardless of whether we characterize Calzone's lack of spending as a fact, an issue, or an argument, if it is possible to forfeit or waive forfeiture, Missouri has done so here. See, e.g., Robertson v. U.S. Bank, N.A., 831 F.3d 757, 764 (6th Cir. 2016) ("The Robertsons thus forfeited this forfeiture argument."); United States v. Jones, 152 F.3d 680, 684 n.2 (7th Cir. 1998) ("Because the Government has forfeited its forfeiture argument, we shall review Jones's claims according to the standards of review that would have applied if Jones had raised these arguments in the district court."); Tibble v. Edison Int'l, 843 F.3d 1187, 1193 (9th Cir. 2016) (en banc) ("Edison itself forfeited the forfeiture argument . . . ."); Cook v. Rockwell Int'l Corp., 618 F.3d 1127, 1139 (10th Cir. 2010) ("Plaintiffs have themselves forfeited any forfeiture argument . . . ."); Petaluma FX Partners, LLC v. Comm'r, 792 F.3d 72, 78 (D.C. Cir. 2015) ("[A] forfeiture argument can itself be forfeited.").

         After reviewing the record and taking into account the as-applied nature of Calzone's challenge, we conclude that the undisputed fact that Calzone spends no money nor gives anything of value to anyone when pursuing his advocacy activities is a detail that we must consider in evaluating his First Amendment challenge.[5] Cf. Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 329-33 (2010) (considering a remedy disclaimed below and discussing the discretion an appellate court has to hear new arguments supporting a preserved First Amendment claim).

         Now that we have concluded that Calzone's entire as-applied challenge is before us, the question is straightforward: can Missouri require Calzone to pay a fee and publicly disclose his political activities, even though he neither spends nor receives any money in connection with his advocacy? We conclude that the answer is no.

         Everyone agrees on one point: Calzone is engaged in First Amendment activity. See FTC v. Superior Court Trial Lawyers Ass'n, 493 U.S. 411, 426 (1990) (noting the First Amendment right "to lobby . . . officials to enact favorable legislation"). After all, "interactive communication concerning political change" is at the "core" of the First Amendment, Meyer v. Grant, 486 U.S. 414, 422 (1988), and the right "to petition for a redress of grievances [is] among the most precious of . . . liberties," United Mine Workers of Am., Dist. 12 v. Ill. State Bar Ass'n, 389 U.S. 217, 222 (1967).

         Missouri calls this activity "lobbying." Regardless of the label, Calzone does not lose his First Amendment rights just because he speaks through an organization that shares his perspective. See, e.g., Superior Court Trial Lawyers Ass'n, 493 U.S. at 426; United Mine Workers, 389 U.S. at 221-22. To the contrary, both he and Missouri First still have the right to make their views known.

         But Missouri also has some power to regulate speech, and the nature of the regulation determines how closely we scrutinize it. See Minn. Citizens Concerned for Life, Inc. v. Swanson, 692 F.3d 864, 874-75 (8th Cir. 2012) (en banc). Here, Missouri's lobbying law requires Calzone to reveal his identity and divulge his activities. It is, in other words, a "disclosure law," so we review it under a legal framework known as "exacting scrutiny." See id. Missouri's burden is to show, at a minimum, that the law has a "substantial relation[ship]" to a "sufficiently important governmental interest."[6] Id. at 875 (internal quotation marks and citation omitted). In determining whether the interest is "sufficiently important," our task is to determine whether "the strength of the [asserted] governmental interest . . . reflect[s] the seriousness of the actual burden on [Calzone's] First Amendment rights." John Doe No. 1 v. Reed, 561 U.S. 186, 196 (2010) (citation omitted).

         The burdens of the law are straightforward. Most obvious is the time and effort required to fill out paperwork. Cf. Swanson, 692 F.3d at 873-74 (stressing "the time and expense of entering a long-term morass of regulatory red tape"). There is also the filing fee itself, of course. In exchange, Calzone loses his freedom "to remain anonymous" and exposes himself to "retaliation" for his advocacy. McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 342, 357 (1995); cf. NAACP v. Alabama, 357 U.S. 449, 460-62 (1958) (stressing the chilling effects of "compelled disclosure of affiliation with groups engaged in advocacy"). In short, compliance is not free. But neither is noncompliance, which exposes violators to fines and possible jail time.

         Missouri's asserted justification is "transparency," even though what it means by that is less than clear. Transparency seems to encompass two ideas. The first is an interest in sharing information about advocacy activities in order to prevent actual or apparent public corruption. The second is a general interest in having the world know who is trying to influence the work of the General Assembly. On this record, neither of these justifications survives exacting scrutiny.

         The first interest is no doubt "important," at least in the abstract. See Minn. Citizens Concerned for Life, Inc. v. Kelley, 427 F.3d 1106, 1111 (8th Cir. 2005) (noting a compelling interest in "avoiding even the appearance of corruption"). Indeed, the Supreme Court has long credited anti-corruption rationales in upholding campaign-finance restrictions and disclosure requirements, despite the limitations these kinds of laws place on speech. See, e.g., McCutcheon v. FEC, 572 U.S. 185, 199, 206-07 (2014) (plurality opinion); FEC v. Nat'l Conservative Political Action Comm., 470 U.S. 480, 496-97 (1985); Buckley v. Valeo, 424 U.S. 1, 26-27 (1976) (per curiam); cf. United States v. Harriss, 347 U.S. 612, 625-26 (1954).

         What Missouri has failed to establish, however, is that applying the law to Calzone, who neither spends nor receives money in connection with his advocacy, bears a substantial relationship to its anti-corruption interest. See Swanson, 692 F.3d at 875. The government "may target only a specific type of corruption-'quid pro quo' corruption"-and Calzone's political activities do not raise the specter of "corruption or its appearance." McCutcheon, 572 U.S. at 206-07 (plurality opinion) (collecting cases); see also id. at 192. There clearly is no "quid" because Calzone does not spend or receive money, nor offer anything of value to legislators. See id. at 207 (recognizing that the appearance of corruption can arise from "large individual financial contributions to particular candidates" (internal quotation marks and citation omitted)); see also id. at 225. So whatever "quo" he receives must be due to his speech, not corruption.

         To be sure, casting a wide net might make it easier for Missouri to catch legislative lobbyists involved in actual corruption. But so would better-tailored and "less problematic measures," Swanson, 692 F.3d at 877 (citation omitted), including another provision that already covers those who make "total [annual] expenditures of fifty dollars or more . . . for the benefit of one or more public officials," Mo. Rev. Stat. § 105.470(5)(d); cf. id. § 105.452 (prohibiting the acceptance of bribes). See McCutcheon, 572 U.S. at 221 (plurality opinion) (noting "multiple alternatives available to Congress that would serve the [same] interest"); McIntyre, 514 U.S. at 349 (identifying alternative anti-fraud statutes). Missouri has failed to show how this provision and other measures fall short in identifying actual or apparent corruption. See Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377, 392 (2000) (explaining that "mere conjecture" is never "adequate to carry a First Amendment burden"); cf. McCutcheon, 572 U.S. at 221 (plurality opinion) (stressing that a "prophylaxis-upon-prophylaxis approach requires that [courts] be particularly diligent in scrutinizing the law's fit" (internal quotation marks and citation omitted)). Therefore, whatever "ancillary [enforcement] benefits" Missouri receives from requiring uncompensated lobbyists who make no expenditures to register and disclose their activities, "we are not persuaded that they justify" the burden on Calzone's First Amendment rights. McIntyre, 514 U.S. at 351.

         Missouri's other transparency interest is broader. Missouri claims that legislators need to know who is speaking to determine how much weight to give the speech. Missouri also insists that the public has a right to know who is speaking so that it can hold legislators accountable for their votes and other actions.

         These concerns, however, are not "sufficiently important" to justify the burdens placed on Calzone's speech. See Swanson, 692 F.3d at 876. As the Supreme Court has recognized, speakers ordinarily have the right to keep their identities private. McIntyre, 514 U.S. at 341-43, 348-49, 353-57. In fact, the right to remain nameless is "an aspect of the freedom of speech protected by the First Amendment" and a component of "a respected tradition of anonymity in the advocacy of political causes." Id. at 342-43. This principle applies with particular force here because "core political speech" is at issue. Id. at 346-47; see also Superior Court Trial Lawyers Ass'n, 493 U.S. at 426. So Missouri's "simple interest in providing voters with additional relevant information does not justify a state requirement that [Calzone] make statements or disclosures [he] would otherwise omit." McIntyre, 514 U.S. at 348. Nor does legislative curiosity justify upfront disclosure of information that legislators can presumably find out on their own.

         We do not doubt that when money changes hands, the nature of Missouri's transparency interest changes too, because the risk of quid pro quo corruption increases. See Buckley, 424 U.S. at 66-67; see also McIntyre, 514 U.S. at 354-56 (suggesting that this interest boils down to preventing corruption or its appearance); cf. Harriss, 347 U.S. at 625 (explaining that the legislature has a legitimate interest in knowing "who is being hired, who is putting up the money, and how much"). Nor do we question that there are other interests that can justify compelled-disclosure laws. See, e.g., John Doe, 561 U.S. at 191-92, 195-99 (addressing a petition that had the direct legal effect of putting a referendum on a statewide ballot); McIntyre, 514 U.S. at 352-53 (discussing the dissemination of false political literature). But Missouri does not rely on these interests, or any interests like them. Calzone neither spends nor receives money in connection with his activities, nothing he says carries any legislative force, and there is no suggestion that he is deceiving anyone. Rather, he wants to "make [his] wishes known to [his] representatives." E. R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 137 (1961); see also McDonald v. Smith, 472 U.S. 479, 482 (1985) ("The right to petition . . . is implicit in the very idea of government, republican in form." (brackets, internal quotation marks, and citation omitted)).

         * * *

         Given that Calzone's political activities do not involve the transfer of money or anything of value, either to him or to anyone else, Missouri's interest in transparency does not "reflect the seriousness of the actual burden on [his] First Amendment rights." Swanson, 692 F.3d at 876 (citation ...


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