Wyo. Gun Owners v. Gray

83 F.4th 1224

WYOMING GUN OWNERS, a Wyoming nonprofit corporation, a/k/a WyGO, Plaintiff - Appellee/Cross Appellant, v. Charles GRAY,¹ in his official capacity as Wyoming Secretary of State;Bridget Hill, in her official capacity as Wyoming Attorney General; Kai Schon,individually and in his official capacity as Wyoming Secretary of State Election Division Director;Karen Wheeler, individually and in her official capacity asWyoming Deputy Secretary of State, Defendants - Appellants/Cross Appellees.Campaign Legal Center, Amicus Curiae.

No. 22-8019

No. 22-8021

United States Court of Appeals, Tenth Circuit

FILED October 11, 2023

Appeal from the United States District Court for the District of Wyoming (D.C. No. 2:21-CV-00108-SWS) James Peters, Senior Assistant Attorney General (Brandi Monger, Deputy Attorney General; Mackenzie Williams, Senior Assistant Attorney General; and Carl Edelman, former Assistant Attorney General, with him on the briefs) Wyoming Attorney General's Office, Cheyenne, Wyoming, for Appellants-Defendants/Cross-Appellees.

Endel Kolde, Institute for Free Speech, Washington, D.C. (Stephen Klein, Barr & Klein PLLC, Washington, D.C. and Seth "Turtle" Johnson, Slow & Steady Law Off., PLLC, Saratoga, Wyoming, with him on the briefs) for Plaintiff-Appellee/Cross-Appellant.

Tara Malloy and Megan P. McAllen, Campaign Legal Center, Washington, D.C., filed an Amicus Curiae Brief of Campaign Legal Center.

Before HOLMES, Chief Judge, TYMKOVICH, and CARSON, Circuit Judges.

TYMKOVICH, Circuit Judge.

Wyoming Gun Owners is a non-profit gun rights advocacy group that aired a provocative radio ad in the run-up to Wyoming's 2020 primary election. The ad extolled the pro-gun credentials of one candidate while branding the other as out of touch with Wyoming values.

Wyoming has a campaign finance scheme that requires organizations that spend over $1,000 on an "electioneering communication" to disclose contributions and expenditures related to that communication. Wyo. Stat. § 22-25-106(h). Under Wyoming law, an advertisement that refers to a candidate and advocates for his victory or defeat—or can only be reasonably understood in that way—generally constitutes an electioneering communication. See § 22-25-101(d)(i).

The Wyoming Secretary of State's Office flagged Wyoming Gun Owners' advertisement as an electioneering communication. The Secretary told WyGO it needed to disclose which of its donors funded the ad. WyGO contested that the radio ad was an electioneering communication at all and refused to disclose its donors. But it later capitulated and decided to accept the $500 civil penalty rather than comply with the disclosure rules.

The organization subsequently sued the Secretary of State (and related parties) in federal district court, arguing that various provisions of the Wyoming statute were void for vagueness and that the disclosure scheme was not constitutionally justified. The district court agreed and determined that the disclosure regime failed exacting scrutiny as applied to WyGO and found a provision within the scheme void for vagueness as applied to WyGO. The Secretary appealed the latter two rulings and WyGO cross-appealed the rest.

We affirm the district court on most claims. The disclosure regime fails exacting scrutiny as applied to WyGO for lack of narrow tailoring. And the regime's requirement that expenditures for speech "related to" candidate campaigns must be disclosed is void for vagueness—again, as applied to WyGO. The district court also correctly dismissed the remaining vagueness challenges—save one—either for failure to sufficiently plead a vagueness challenge or because the statutory language clearly applied to WyGO. The district court did, however, erroneously deny WyGO's request for attorney's fees under 42 U.S.C. § 1988. We reverse and remand for an accounting of fees.

I. Background

A. Wyoming Campaign Finance Law

This appeal takes place against the backdrop of recently enacted Wyoming campaign finance law. Wyoming has adopted a campaign finance scheme that, among other things, requires organizations to disclose information about donors involved in political speech under select circumstances. In particular, Wyoming law requires organizations that spend over $1,000 to issue an "electioneering communication" to notify the state and file a statement identifying itself and the donors whose contributions made the communication possible. See § 22-25-106(h).

An "electioneering communication" is a message aimed at advocating for or against a candidate. Covered communications expressly refer to candidates or ballot propositions or are reasonably understood to refer to candidates or ballot propositions. More fully, an electioneering communication

[r]efers to or depicts a clearly identified candidate for nomination or election to public office or a clearly identified ballot proposition and which does not expressly advocate the nomination, election or defeat of the candidate or the adoption or the defeat of the ballot proposition [and] [c]an only be reasonably interpreted as an appeal to vote for or against the candidate or ballot proposition.

§ 22-25-101(d)(i)(A)-(B).

An electioneering communication includes almost any method of communication:

[A]ny communication, including an advertisement, which is publicly distributed as a billboard, brochure, email, mailing, magazine, pamphlet or periodical, as the component of an internet website or newspaper by the facilities of a cable television system, electronic communication network, internet streaming service, radio station, telephone or cellular system, television station or satellite system . . . .

§ 22-25-101(i)(d). Under this provision, when an organization issues an electioneering communication Wyoming law requires it to disclose donor information by filing a report with the Secretary of State.

In addition, the statutory scheme expressly exempts speech in two circumstances relevant to this appeal: it exempts speech contained in a (1) newsletter, or (2) political commentary.

The newsletter exemption frees organizations from reporting donors whose contributions fund communications made by that organization "as a component of a newsletter or other internal communication of the entity which is distributed only to members or employees of the entity." § 22-25-101(ii)(A).

And the commentary exemption excludes from the "electioneering communications" umbrella more traditional forms of political expression. More fully, it exempts

[a] communication consisting of a news report, commentary or editorial or a similar communication, protected by the first amendment to the United States constitution and article 1, section 20 of the Wyoming constitution, which is distributed as a component of an email, internet website, magazine, newspaper or periodical or by the facilities of a cable television system, electronic communication network, internet streaming service, radio station, television station, or satellite system.

§ 22-25-101(d)(ii)(B).

When a Wyoming advocacy organization issues an electioneering communication, it finds itself subject to reporting and disclosure requirements. An organization that spends over $1,000² "in any primary, general or special election to cause an independent expenditure or electioneering communication to be made shall file an itemized statement of contributions and expenditures with the appropriate filing office"—here, the Secretary of State's Office. § 22-25-106(h).

The required statement contains mandatory donor information. It must "list those expenditures and contributions which relate to an independent expenditure or electioneering communication." § 22-25-106(h)(iv) (emphasis added). After an organization determines which of its expenditures and contributions relate to the electioneering communication, it must submit a statement to the Secretary. Specifically, the statement must

[s]et forth the full and complete record of contributions which relate to an independent expenditure or electioneering communication, including cash, goods or services and actual and promised expenditures. The date of each contribution of $100 or more, any expenditure or obligation, the name of the person from whom received or to whom paid and the purpose of each expenditure or obligation shall be listed. All contributions under $100 shall be reported but need not be itemized. Should the accumulation of contributions from a person exceed the $100 threshold, all contributions from that person shall be itemized . . . .

§ 22-25-106(h)(v). These provisions make up the disclosure scheme challenged by WyGO.

B. Wyoming Gun Owners' Advocacy

WyGO describes its mission as "defending and advancing the 2nd Amendment rights of all law-abiding citizens in the state of Wyoming—and exposing legislators who refuse to do the same thing." App. 100. It considers itself a "small, high-impact operation" and lacks "dedicated in-house lawyers or campaign staff." Id. This is no surprise: its annual budget fluctuates between $50,000 and $100,000.

WyGO builds its budget with small-dollar donations. About 90% of its donations are under $100. And only 2% exceed $200.

Perhaps befitting a mom-and-pop style issue advocacy outfit, WyGO lacks a sophisticated bookkeeping system. It runs only two accounts. One houses online contributions while the other keeps mailed-in contributions. WyGO does not afford its donors a way to limit, or "earmark," what projects their donations will fund.

WyGO spreads it message across both legacy and new media platforms. It relies on radio ads, email blasts, direct mail, Facebook posts, YouTube videos, and the like. It avoids explicitly endorsing candidates on these platforms. But still, WyGO overtly disseminates its candidate surveys and offers its membership information relevant to assessing the Second Amendment bona fides of political candidates.

C. Wyoming Gun Owners' Radio Ad

This case arises from WyGO's advocacy during Wyoming's 2020 election cycle. In the run-up...