Wednesday, May 8, 2013

Same-sex marriage opponents can bring First Amendment challenge to NY's election law

There is nothing more fun than litigating a pure First Amendment action, but you need a case and controversy before the court can decide the case. If the case is not ripe, it is merely an academic exercise, and the case is dismissed. This case was dismissed as unripe, but the Second Circuit reinstates it, allowing the National Organization for Marriage to challenge the constitutionality of a New York election law that potentially chilled its speech against same-sex marriage.

The case is National Organization for Marriage v. Walsh, decided on April 22. New York Election Law regulates political committees by requiring them to file certain paperwork and maintain financial records and file periodic reports with the Board of Elections. Failure to comply with these requirements can subject you to civil and criminal liability. The problem for NOM is that political committees are defined as corporations that have electoral goals in the form of promoting candidates, ballot proposals and political parties. NOM argued that the threat of being labled a political committee chilled its free speech.

Over Judge Newman's dissent, the Second Circuit (Hall and Preska [D.J.]) says that NOM is in a position to challenge the "political committee" definition. The Court of Appeals gives us a good summary of the ripeness doctrine that governs constitutional challenges. It also reacquaints us with the "chilling effect" that plaintiffs must properly allege in order to bring a First Amendment challenge. In short, a real and imminent fear of chilling is enough to bring the case. Otherwise, self-censorship takes over.

NOM argues that New York's definition of "political committee" is an overly burdensome violation of  the First Amendment, but that's something for the district court to worry about now that the Second Circuit has reinstated the case. The Court of Appeals says that NOM is in a position to challenge the Election Law's definition of "political committee" because it wanted to run an advertisement in 2010 against same-sex marriage. That advertisement might turn NOM into a political committee because it would have advocated on a political issue, which means that the federal court has a legitimate constitutional claim ripe for review. Here's the text of the advertisement that NOM wanted to run:

Think legalizing same-sex marriage doesn’t affect your family?

. . . .
Legalizing gay marriage has consequences for kids. Massachusetts schools teach second graders that boys can marry other boys. A California public school took first graders to a same-sex wedding, calling it “a teachable moment.”

Kids have enough to deal with already, without pushing gay marriage on them. And it’s not just kids who’ll face the consequences.

The rights of people who think marriage means a man and a woman will no longer matter: We’ll all have to accept same-sex marriage whether we like it or not.

Carl Paladino knows that in these troubled times in New York, we don’t have time to push gay marriage on New York families.

This Election Day, vote for Carl Paladi[n]o for governor.

As the election approaches, tell your family and friends to vote for Carl Paladino. He’ll stand up for marriage between one man and one woman.

Paid for by National Organization for Marriage
You can make of this advertisement what you will. Times have certainly changed since 2010, when NOM wanted to run this advertisement. Paladino is a footnote to history, and same-sex marriage is legal in New York. But the constitutional doctrines governing standing and ripeness don't give a damn whether NOM is on the right side of history or not. After waiting 1.5 years for a decision from the Court of Appeals, this organization can now proceed on the merits in the district court.

1 comment:

The World Around Me said...

Free speech v. freedom not to be offended. You can't have both. Yet people want them both.