City Officials Have No Free Speech Rights to Use Public Funds to Support/Oppose Ballot Measures or Candidates

From City of Maryland Heights v. State, decided Tuesday by the Missouri Supreme Court, in an opinion by Chief Justice Paul Wilson:

Officials of political subdivisions in St. Louis County brought suit seeking a declaratory judgment that section 115.646, which prohibits officials from directly using public funds to advocate, support, or oppose a ballot measure or candidate for public office, violates the First and Fourteenth Amendments of the United States Constitution…. Because section 115.646 regulates the use of public funds, not the officials' speech, it does not implicate the free speech clause of the First Amendment….

When Plaintiffs initiated their lawsuit, section 115.646 provided:

No contribution or expenditure of public funds shall be made directly by any officer, employee or agent of any political subdivision to advocate, support, or oppose any ballot measure or candidate for public office. This section shall not be construed to prohibit any public official of a political subdivision from making public appearances or from issuing press releases concerning any such ballot measure.

{The General Assembly [broadened] section 115.646 after Plaintiffs initiated their lawsuit.}

Section 115.646 does not purport to regulate the speech of officials when they do not use public funds. Section 115.646 also does not in any way prohibit the use of private or personal funds to subsidize officials' speech. In other words, section 115.646 does not limit or prohibit officials' speech; it merely prohibits them from using public funds to facilitate or augment that speech. See Sweetman v. State Elections Enf't Comm'n (Conn. 1999) (rejecting the argument that a similar statute chilled speech because "[t]he statute does not prohibit public officials from speaking; it merely prohibits them from using the public fisc to purchase a soapbox").

As the Supreme Court has recognized, "A refusal to fund protected activity, without more, cannot be equated with the imposition of a 'penalty' on that activity." Rust v. Sullivan (1991). As a result, "[a] legislature's decision not to subsidize the exercise of a fundamental right does not infringe the right."

{Plaintiffs do not argue section 115.646 violates the First Amendment rights of political subdivisions by regulating a political subdivision's use of public funds to convey its message through its officials, employees, or agents. Such an argument would lack merit because government speech lacks First Amendment protection. Pleasant Grove City v. Summum (2009).}

The court also concluded the statute wasn't unconstitutionally vague:

First, the circuit court declared the term "ballot measure" to be vague because the circuit court believed it was unclear when a proposal becomes a "ballot measure." … [But] section 130.011(2) provides a definition of "ballot measure" that, even though not strictly applicable to chapter 115, nevertheless comports with the common understanding of the phrase and refutes that it cannot be understood by a reasonable person. See § 130.011 (defining "ballot measures" as "any proposal submitted or intended to be submitted to qualified voters for their approval or rejection"). Whether a proposal is intended to be submitted to the voters will be clear in most circumstances, especially when the process for getting it on the ballot has begun. But even if there are some circumstances in which the line between an idea and a proposal intended to be submitted to qualified voters is not clear, "speculation about possible vagueness in hypothetical situations not before the Court will not support a facial attack on a statute when it is surely valid in the vast majority of its intended applications." Hill v. Colorado (2000).

The circuit court … declared "public funds," and whether those funds were spent "directly" by the official, to be vague. In reaching this conclusion, the circuit court raised a variety of hypothetical situations that might pose a close call under the statute. But, as previously explained, speculation about hypothetical situations is insufficient to support a facial attack when language understandable to an ordinary person, such as "public funds" and "directly," conveys what section 115.646 prohibits in the vast majority of intended applications. The terms "public funds" and "directly" are of common understanding and provide a person of ordinary intelligence sufficient notice of the prohibited conduct.

Finally, the circuit court erred in declaring the words "advocate, support, or oppose" to be unconstitutionally vague. The words "advocate, support, or oppose" also are commonly understood by a person of ordinary intelligence. Each of these terms refers to result-oriented language, rather than mere discussion of issues. While there may be uncertainty in cases near the margin, complete specificity is not required.