Opinion
Case No. CV-S-02-1195-LDG (RJJ).
March 26, 2005
ORDER
The plaintiffs seek a determination (1) that Nev. Rev. Stat. § 294A.345 is facially invalid under the First and Fourteenth Amendments of the United States Constitution as an impermissible prior restraint of protected speech; (2) that § 294A.345 is unconstitutionally overbroad because it permits punishment of protected speech; (3) that §§ 294A.345 and 281.477 violate due process; (4) that § 294A.345 violates the Equal Protection Clause of the Fourteenth Amendment; and (5) that § 294A.345 violates separation of powers. The plaintiffs are the Nevada Press Association and its executive director, the American Civil Liberties Union and its executive director, the Nevada Republican Liberty Caucus and its chairperson, the High Desert Advocate (a newspaper) and its editor, and three elected officials: Chris Giunchigliani, Wendell Williams and Bob Beers. The defendants are the Nevada Commission on Ethics and its members in their official capacities. The parties have filed cross-motions for summary judgment.
Motion for Summary Judgment
In considering a motion for summary judgment, the court performs "the threshold inquiry of determining whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). To succeed on a motion for summary judgment, the moving party must show (1) the lack of a genuine issue of any material fact, and (2) that the court may grant judgment as a matter of law. Fed.R.Civ.Pro. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A material fact is one required to prove a basic element of a claim. Anderson, 477 U.S. at 248. The failure to show a fact essential to one element, however, "necessarily renders all other facts immaterial." Celotex, 477 U.S. at 323.
"[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. "Of course, a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. As such, when the non-moving party bears the initial burden of proving, at trial, the claim or defense that the motion for summary judgment places in issue, the moving party can meet its initial burden on summary judgment "by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. Conversely, when the burden of proof at trial rests on the party moving for summary judgment, then in moving for summary judgment the party must establish each element of its case.
Once the moving party meets its initial burden on summary judgment, the nonmoving party must submit facts showing a genuine issue of material fact. Fed.R.Civ.Pro. 56(e). As summary judgment allows a court "to isolate and dispose of factually unsupported claims or defenses," Celotex, 477 U.S. at 323-24, the court construes the evidence before it "in the light most favorable to the opposing party." Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). The allegations or denials of a pleading, however, will not defeat a well-founded motion. Fed.R.Civ.Pro. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
Background
Section 294A.345 prohibits any person from making a false statement, with actual malice, about a candidate for political office with the intent and effect of impeding the success of the candidate's campaign. The statute defines actual malice as either having knowledge of the falsity of the statement or with reckless disregard for whether the statement is true or false. Pursuant to § 294A.345(3), a person who violates § 294A.345 is subject to a civil penalty that may be imposed by the Ethics Commission pursuant to § 281.551(4). Section 281.551(4) provides for a fine of up to $5,000 upon an affirmative vote of two-thirds of the members of the commission.
Pursuant to § 294A.345(2), any candidate who alleges that he or she was the subject of a false statement of fact may file a "request for an opinion" with the commission pursuant to the Nevada Ethics in Government Law. Such request must be filed within ten days of the alleged false statement.
Section 281.477 of the Nevada Ethics in Government Law, which specifically governs requests for opinions filed pursuant to § 294A.345, provides for a shortened period to resolve requests for opinions. The commission must conduct a public hearing as expeditiously as possible, but not later than 15 days after the request is made. Further, the commission must render an opinion within three days of the hearing.
The hearing, however, may be continued for not more than 15 days at the request of either the complaining candidate or the alleged violator. In addition, the statute only requires that the opinion rendered within three days of the hearing address the truth or falsity of the statement or whether the person impeded the success of the candidate's campaign. The Ethics Commission is expressly permitted to "continue its jurisdiction" beyond the three-day period to investigate whether the person made the statement with actual malice and to determine the amount of a civil fine.
In connection with the abbreviated procedure, the complaining candidate must submit arguments and evidence along with his or her request for an opinion. The commission "immediately" notifies the alleged violator, "by the most expedient means possible," of the request for an opinion. The statute requires only that the notice include the time and place of the hearing.
The statute contemplates that the initial notification may be oral. If so, written notice must be provided by the next calendar day.
Following the receipt of notice, the alleged violator has two business days to file a response that must include evidence and arguments. A person's failure to submit evidence allows the Ethics Commission (1) to prohibit the alleged violator from presenting evidence at the hearing, and (2) to draw "appropriate conclusions" from the failure to submit evidence.
The complaining candidate has the burden to establish a violation by clear and convincing evidence, and actual malice may not be presumed. A final opinion finding that a person has violated § 294A.345 requires the affirmative vote of two-thirds of the members of the Commission. The final opinion of the commission is subject to judicial review similar to the review of any decision of an administrative agency; that is, the opinion is reviewed for clear error and abuse of discretion.
Each of the plaintiffs allege that they or their members engage in political comment regarding candidates. To date, the Ethics Commission has rendered 21 opinions, including requests for opinions regarding statements made by plaintiffs Bob Beers, the Nevada Republican Liberty Caucus, and the High Desert Advocate (and its editor, Howard Copeland). The commission has found that only Beers violated § 294A.345, for which it imposed a $5,000 fine. Standing
The commission has subsequently waived the fine.
"[I]n recognition that `the First Amendment needs breathing space,' the Supreme Court has relaxed the prudential requirements of standing in the First Amendment context. See Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); Secretary of State of Md. v. Joseph H. Munson Co., 467 U.S. 947-956, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984). Where, as here, a plaintiff raises an overbreadth challenge to a statute under the First Amendment, standing arises `not because [the plaintiff's] own rights of free expression are violated, but because of a judicial prediction or assumption that the [challenged statute's] very existence may cause others not before the court to refrain from constitutionally protected speech or expression.' Broadrick, 413 U.S. at 612, 93 S.Ct. 2908." Canatella v. California, 304 F.3d 843, 853 (9th Cir. 2002). "In First Amendment cases, `[i]t is sufficient for standing purposes that the plaintiff intends to engage in a course of conduct arguably affected with a constitutional interest and that there is a credible threat that the challenged provision will be invoked against the plaintiff.' LSO, Ltd. v. Stroh, 205 F.3d 1146, 1154-55 (9th Cir. 2000)." American Civil Liberties Union of Nevada v. Heller 378 F.3d 979 (9th Cir. 2004).
The complaint sufficiently alleges that the plaintiffs intend to engage in political discourse regarding candidates seeking election, and that they may be subject to § 294A.345 as a result of that discourse. Indeed, the complaint alleges that four of the plaintiffs have already been subject to proceedings initiated for an alleged violation of § 294A.345. The allegations are sufficient to establish that the plaintiffs have standing.
Analysis
The plain language of § 294A.345 establishes that it seeks to regulate speech based upon the content of that speech; the statute prohibits any person from offering false statements of fact about a candidate to voters, which statements impede the success of the candidate in his or her campaign. Further, § 294A.345 plainly regulates political speech and, as such, is subject to strict scrutiny analysis. "When a State seeks to restrict directly the offer of ideas by a candidate to the voters, the First Amendment surely requires that the restriction be demonstrably supported by not only a legitimate state interest, but a compelling one, and that the restriction operate without unnecessarily circumscribing protected expression." Brown v. Hartlage, 456 U.S. 45, 53-54 (1982).
The Supreme Court has established that, in the context of political speech, state defamation laws do not unnecessarily circumscribe protected expression if such laws are limited to false statements made with actual malice. See N.Y. Times v. Sullivan, 376 U.S. 272, 279-280 (1964). In N.Y. Times, the Court defined "actual malice" as having a knowledge of the statement's falsity, or a reckless disregard for its truth or falsity. Id. Further, the existence of actual malice may not be presumed, but must be proved by clear and convincing evidence. Although the Court did not specifically address the state interest in N.Y. Times, it has recognized in other decisions that "[s]ociety has a pervasive and strong interest in preventing and redressing attacks upon reputation." Rosenblatt v. Baer, 383 U.S. 75, 86 (1966). "The legitimate state interest underlying the law of libel is the compensation of individuals for the harm inflicted on them by defamatory falsehood." Gertz v. Robert Welch, Inc., 418 U.S. 323, 341 (1974).
Unlike general defamation laws, the government's interest supporting § 294A.345 is not the protection of its citizen's reputations. Rather, as the plaintiffs acknowledge, the government has a compelling, and legitimate, interest in preserving the integrity of the election process, Eu v. San Francisco, 489 U.S. 214, 231 (1989), and ensuring that the voter's right to vote is not undermined by fraud, Burson v. Freeman, 504 U.S. 191, 199 (1992).
This compelling interest reveals the error in plaintiffs' argument that the statute is overbroad because it might be applied to statements that are not defamatory. The argument relies upon the incorrect premise that protecting the reputation of an individual is the only legitimate government interest that supports the regulation of false statements. Preserving the integrity of the election process, however, is also a compelling, legitimate interest that can support the government's regulation of false statements.
The court agrees with the defendants that § 294A.345 closely applies those requirements of N.Y. Times that were expressly set forth in that decision. The statute governs only false statements made with actual malice, and expressly defines "actual malice" as knowledge of the falsity of the statement, or reckless disregard for whether the statement is true or false. To establish a violation of § 294A.345, the complaining candidate has the burden to prove all elements, and must establish actual malice by clear and convincing evidence. Further, the statute expressly prohibits the presumption of actual malice.
That § 294A.345 incorporates each of the requirements expressly identified in N.Y. Times does not, however, establish that the statute is narrowly tailored to serve the state's compelling interest in preserving the integrity of elections. The manner in which a statute is enforced must also be narrowly tailored to serving the state's interest. The N.Y. Times requirements were established in the context of defamation law, and thus in the context of the due process and procedures that attend civil or criminal litigation. The plaintiffs suggest that this same level of due process applies to any regulation that impacts protected speech.
In a due process analysis, the court must consider, with sensitivity to context, the private interest and government interest affected and the efficacy of existing procedures and their alternatives. See Matthews v. Eldridge, 424 U.S. 319, 335 (1976). The Mathews balancing test requires consideration of three distinct factors: "First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Id. As to the first factor, the private interest at issue is core First Amendment speech.
As to the second factor, the court would initially note that the impact of an erroneous decision is the punishment of a person for engaging in protected speech. This court would further note that, as the procedures impact core First Amendment speech and must be reviewed with strict scrutiny, any procedure that tends to increase the risk of an erroneous decision must be essential to serving the compelling state interest. As the risk of an erroneous decision increases as the result of a procedure, the risk of chilling protected speech also increases. Indeed, procedures that create an appearance of an increased risk of an erroneous decision will chill protected speech. A person will be more likely to engage in self-censorship if he or she perceives that the procedures to defend that speech are inadequate.
N.Y. Times and its progeny establish that the due process attendant to civil or criminal litigation is adequate to ensure that a statute does not unnecessarily circumscribe protected expression. Although the court does not agree with the plaintiffs that any due process less than that provided in civil litigation is fatal, the court does agree that any procedure that departs from that of civil litigation must either not increase the risk of an erroneous decision or, if it does increase the risk, the procedure is necessary to serving the state's interest in preserving the integrity of elections.
In this case, the departures from full due process afforded by civil or criminal litigation are obvious and many. The state has created an extremely abbreviated procedure. The court has little difficulty concluding that the abbreviated process increases the risk of an erroneous decision. An alleged violator has only two business days to respond to a notice of a violation. The response must include both arguments and evidence to support the alleged violator's defense. The failure to submit evidence, by itself, allows the commission to not merely draw conclusions from the immediate lack of evidence, but to prohibit the submission of evidence (presumably including relevant evidence) during the hearing.
The court would also note the lack of any express mechanism by which an alleged violator can obtain discovery. While the commission has power to issue subpoenas, the statute provides no mechanism to ensure that the evidence be given to an alleged violator to prepare a defense in advance of a hearing. Further, although the complaining candidate must submit arguments and evidence in connection with his request for an opinion, the statute does not require that such evidence be given to the alleged violator. Indeed, as admitted by the defendants during arguments, the statute does not even require that a copy of the request for an opinion be served on the alleged violator. The statute requires only that the notice identify the place and time of the hearing.
Although this procedure plainly increases the risk of an erroneous decision, the defendants have not established why the abbreviated procedure is necessary to serving its compelling interest of preserving the integrity of the election process. Immediacy of the resolution of a request for an opinion does not justify the procedure. The defendants concede that the statute acts as a deterrent, a concession supported by the record. The abbreviated procedures have not resulted in the rendering of a final opinion prior to an election. Further, any final opinion that finds a violation is subject to judicial review. While the reviewing court must give the review priority over other civil matters, and while the reviewing court may provide for expedited review, it is not required to expedite the review. As such, it seems extremely unlikely that, even given the abbreviated procedure established by Nevada, any request for an opinion resulting in a final determination of a violation would be completely resolved prior to the election.
The state has also failed to indicate how the appointment of the Ethics Commission as the decision-maker is necessary to serving the state's interest in preserving the integrity of elections. The legislature found, in creating the Nevada Ethics in Government Law (and thus establishing the Ethics Commission), an increasing potential that public servants will have conflicts of interest. The express, primary purpose of the Ethics law, and thus the primary purpose of the commission, is to establish an appropriate separation between the roles of persons who are both public servants and private citizens. The make-up of the eight-member commission, which must consist of at least four former public servants, obviously supports its role in developing regulatory law that delineates and resolves whether public servants have an inappropriate conflict of interest. By contrast, however, § 294A.345 applies to all persons (including newspapers, their editors, and to private individuals). Some persons engaged in political discourse, and thus subject to a decision of the Ethics Commission, could reasonably perceive that the make-up of the commission increases the risk of an erroneous decision as compared to the decision of a jury of peers selected with the input of the alleged violator. Thus, the plaintiffs are not unreasonable in their belief that the designation of the Ethics Commission as the decision-maker could chill protected speech for some people. The defendants have identified no reason, and the Nevada Ethics in Government Law provides no reason, for designating the Ethics Commission to protect the integrity of the election process.
Finally, as to the third factor, any procedure greater than that presently established will result in some increase on the fiscal and administrative burden of the government. Strict scrutiny, however, requires that the government provide the due process that is necessary to ensure that protected speech is not improperly chilled.
Accordingly,
THE COURT ORDERS that Plaintiffs' Motion for Summary Judgment (#18) is GRANTED;
THE COURT ORDERS that Defendants' Cross-Motion for Summary Judgment (#20) is DENIED;