Submitted: April 19, 2019
from United States District Court for the Western District of
Missouri - Jefferson City
SMITH, Chief Judge, LOKEN, COLLOTON, GRUENDER, BENTON,
SHEPHERD, KELLY, ERICKSON, GRASZ, STRAS, and KOBES, Circuit
Judges, En Banc.
Circuit Judge, with whom SMITH, Chief Judge, GRUENDER,
ERICKSON, GRASZ, and KOBES, Circuit Judges, join.
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
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
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.
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.
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.
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.
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.
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]." 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
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.
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).
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. 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
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; and ending with
his briefs to this court.Only the dissenters disagree.
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
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.").
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. 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).
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.
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,
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
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." 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).
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.
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.
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).
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
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.
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
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.
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
* * *
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 ...