Sunday, June 8, 2008

Ripeness knocks out NYCLU's free speech suit

Mootness and ripeness may not be the most exciting areas of civil rights law, but if you can't get past mootness and ripeness, the court will not address the merits of your case, and it gets dismissed on those procedural, or technical, grounds. That's what happened last week, when the New York Civil Liberties Union sued the State Lobbying Commission under the First Amendment.

The case is New York Civil Liberties Union v. Grandeau, decided on June 6. NYCLU ran a billboard in Albany endorsing free speech rights in private shopping malls. (The Supreme Court and New York Court of Appeals have held that the First Amendment does not apply on private property, including malls and shopping centers. I was on the losing end of this issue in 2007, when anti-war protesters were sued by a shopping center). This billboard grew out of a controversy when a man was kicked out of the Crossgates Mall in Albany for wearing an anti-war shirt.

As an organization that lobbies the State Legislature to pass certain laws, NYCLU has to report that lobbying activity to the State Lobbying Commission. It did not report the billboard to the Commission even though, at the time NYCLU ran the billboard, a State legislator was sponsoring a bill that would have extended free speech rights to shopping malls. When the State Lobbying Commission demanded that NYCLU account for this billboard in its annual lobbying report, NYCLU sued under the First Amendment, claiming that the lobbying rules did not cover the billboard which made no reference to the proposed legislation and that the State was unconstitutionally forcing it to report this non-lobbying political activity.

Sounds like a great case, except that the State backed off and decided that the billboard was not covered under the lobbying rules after all. So, is the case moot under the circumstances? No, says the Court of Appeals (Sotomayor, Raggi and Gleason), which holds that the case still presents a live controversy because the State more broadly interprets the lobbying law to cover non-legislative advocacy such as the billboard and other activities. Also, the Commission backed off only because it determined that NYCLU had not paid for the billboard. It still disagrees with NYCLU over what activities are reportable. The case is not moot.

But the case is not ripe, either, and that dooms the lawsuit. The ripeness question asks whether its too early to bring the lawsuit. The Commission's policy over reportable activity is too vague for the court to intervene, and it is unclear whether NYCLU is actually challenging State policy, or whether it's merely hanging its hat on deposition testimony from a State official. Since judicial review into this issue would benefit from additional factual development, i.e., an actual inquiry by the Lobbying Commission into NYCLU's endeavors, the case is not ready for judicial resolution.

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