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7th Circuit’s Zombie Web Pages in Illinois Elections #citizensunited

September 14, 2012

Decided this week, September 10, 2012, in the Court of Appeals for the Seventh Circuit, a case about election communications in light of Citizens United. One concern in this case is about the timing requirements given that websites may persist forever in cached and reblogged versions – Judge Hamilton’s opinion refers to these as “zombie web pages”. Judge Posner dissents in part because of chilling effects of this zombie internet on confusion about election filing requirements. But Judge Hamilton (joined by Judge Rovner) is not as concerned about these potentially chilling effects of the everlasting zombie internet.

No. 11-3693
CENTER FOR INDIVIDUAL FREEDOM, Plaintiff-Appellant,
v.
LISA MADIGAN, Attorney General of the State of Illinois et al., Defendants-Appellees.

UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
2012 U.S. App. LEXIS 18956
Argued April 10, 2012, Decided September 10, 2012

Before Circuit Judges Posner, Rovner and Hamilton
Opinion by Judge Hamilton, with Judge Posner concurring in part and dissenting in part.

Hamilton’s Opinion of the Court begins:

The Supreme Court’s decision in Citizens United v. FEC, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010), is best known for striking down as an unconstitutional restriction of free speech the federal law that bans corporations and labor unions from running campaign-related advertisements in the lead-up to an election. That holding largely overshadowed another part of the decision up-holding the same law’s campaign finance disclosure provisions. Those provisions require any outside entity or individual spending significant sums in a federal election to file reports with the Federal Election Commission (FEC) identifying the person or group making the expenditure, its amount, and the names of certain contributors.

and

in the aftermath of Citizens United a number of suits have been filed challenging federal and state disclosure regulations as facially unconstitutional. Of the federal courts of appeals that have decided these cases, every one has upheld the disclosure regulations against the facial attacks. [footnote excluded] This case involves another such challenge. Plaintiff-appellant Center for Individual Freedom (the Center) seeks to invalidate Illinois disclosure requirements on the grounds that they are facially vague and overbroad restrictions of speech in violation of the First and Fourteenth Amendments. Illinois’s disclosure law is modeled on the federal one. It requires groups and individuals that accept “contributions,” make “expenditures,” or sponsor “electioneering communications” in excess of $3,000 to make regular financial disclosures to the State Board of Elections. See 10 ILCS 5/9-1.8. The Illinois Election Code drew the key definitions of “contribution,” “expenditure,” and “electioneering communication” from federal law.

One specific complaint regards “Electioneering Communication” on the Internet:

The Center contends that Article 9’s regulation of certain Internet speech as electioneering communications renders it unconstitutionally broad because Internet speech, in contrast to radio and television broadcasts, is not confined to particular audience markets or moments in time. Without firm temporal or geographic limitations, the Center argues, Article 9 potentially sweeps in an untold amount of online speech that has nothing to do with Illinois elections. The Center notes that “many Internet communications” — for example, postings on the Center’s website, emails to the Center’s membership distribution lists, or messages through social networking sites — “are equally accessible from almost anywhere in the world” and may even persist forever in cyber-space through the use of a so-called “Way-Back Machine” that stores web sites even after they have been removed by their creators or sponsors. The consequence, it suggests, is that “politically-oriented websites around the world must review their content before each Illinois election to identify and remove any prior posting referring to someone who now is an Illinois candidate or something that now is an Illinois ballot question.” Keeping in mind that this is a facial challenge, we are not persuaded that this prospect invalidates the entire law.

But

we agree with the Center that the potential reach of Illinois’s disclosure law could be problematic if distant speakers were actually subject to regulation because their Internet postings inadvertently or obliquely coincided with the subjects of Illinois ballot measures. The state’s interest in informing its voters of the identities, financial outlays, and funding sources of such marginal political messengers does not rise to the importance the First Amendment demands. Yet the Center has identified no case in which the State Election Board has asked out-of-state speakers to register as political committees for disseminating emails, tweets, zombie web pages, or any other Internet communications that merely mentioned Illinois candidates or discussed issues related to Illinois ballot measures. Nor could the Board legally do so, for under Article 9 Internet ads count as electioneering communications only when they are both “targeted to the relevant [Illinois] electorate” and “susceptible to no reasonable interpretation other than as an appeal to vote for or against a clearly identified candidate . . ., a political party, or a question of public policy.” 10 ILCS 5/9-1.14. The Center’s notion that the Board might consider an out-of-state advocacy group’s web ad generally endorsing low taxes to be an unambiguous appeal to vote for a “ballot question to balance the Illinois budget” sounds far-fetched.

With no evidence that the Board would actually construe Article 9 in this surprising way, such remote, hypothetical applications do not justify invalidating Illinois’s disclosure provisions for facial overbreadth.

zombie judge hamilton

Concluding this section on internet communications:

The Center complains that it is too difficult to know when an “electioneering communication” is “made” on the Internet. Timing is important because of the duties that apply during the 30-day and 60-day windows before elections. See 10 ILCS 5/9-1.14(a). The district court and the defendants assert that a communication is “made” on a website both when it is first posted and while it remains available on the website. That is a sensible reading, just as a physical billboard is considered a communication made by the advertiser as long as it is displayed. The Center wonders if it would still be responsible for later communications (within the 30-day and 60-day windows) if others copy its ads and post them on other websites. If that happens, the Center would not be “making” those later communications and would not be responsible for them.

We do not anticipate that Article 9 will restrict or chill a substantial amount of protected speech because it treats certain Internet speech as electioneering communications. On its face, this element of the statute is neither vague nor overbroad.

And Judge Hamilton’s opinion concludes:

Campaign finance disclosure laws must strike a balance between protecting individual speakers from invasions of privacy and harassment on the one hand, and enabling transparency and accountability in political campaigns on the other. Illinois’s laws do so sufficiently to survive this facial challenge.

The judgment of the district court is AFFIRMED.

Judge Posner, writing separately, concurs in part and dissents in part, he begins:

I agree with much in the majority opinion, but several provisions of the Illinois statute seem to me to burden the plaintiff’s freedom of speech unduly; we should invalidate them.

And one of the five provisions he mentions is about the internet zombie web site possibility (although he doesn’t repeat the zombie word – recall Posner has written zombie word twice before):

If an “electioneering communication” is deemed to be “made” whenever a user accesses a website, cf. Flava Works, Inc. v. Gunter, No. 11-3190, 2012 U.S. App. LEXIS 15977, 2012 WL 3124826, at *7 (7th Cir. Aug. 2, 2012), then even an appeal to vote that is posted more than 30 or 60 days before the election (depending on whether it is a primary or a general election) will constitute an expenditure that, if it exceeds the modest threshold in the statute, will make the communicator a political committee and thus require it to register. A television advertiser controls the dates on which his ad is shown; but an Internet ad or web posting remains online and accessible until removed. The advertiser may delete the ad from his website, but it may already have been copied and posted on a hundred other websites. Should the advertiser be thought to be continuing to make an electioneering communication by failing to ensure that his ad posted during the safe harbor periods is no longer accessible to voters? And how can he do that? On these critical questions, the statute is silent. The only sure way to avoid having to register as a political committee is therefore to avoid endorsing an Illinois candidate online at any time.

The Illinois courts might interpret “made” to refer only to the original posting of the ad. But this would open up a loophole; the advocacy group might have posted the ad shortly before the 30- or 60-day cutoff and deleted it just before the cutoffs, confident that the campaign favored by the ad would copy it and post it so that it would be seen right up to election day. Because the state courts might well decide to close this loophole by interpreting “made” to include the initial posting, advocacy groups would be running a legal risk by posting online ads even long before the date of the election, and might therefore be deterred from doing so.

Posner concludes with concerns of the chilling effect:

When the five vague statutory provisions that I have been discussing are considered in combination, it becomes apparent that their cumulative effect on advocacy by CIF and similar organizations could be considerable. To avoid the burden of registration, such groups may take measures to curb their advocacy even if those measures may not in fact (that is, in law) be required in order to avoid having to register. That is the vice of vagueness—that it causes an organization or an individual to give a law a wide berth, in this instance by forgoing constitutionally protected speech. We should insist, in the name of the First Amendment, that the Illinois legislature speak with greater clarity.

From → computers, politics

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