NYCLU v. Grandeau (Challenging state’s reporting requirements for advocacy group speech not directed at legislators)

This case explores the extent to which the state can, consistent with the First Amendment, require advocacy groups to report about activities that do not involve direct communications with legislators. In March 2003, the NYCLU sponsored a billboard about free speech in malls. The billboard went up outside the Crossgates Mall in Guilderland, NY at the end of March following the arrest of a patron of the mall for wearing a tee-shirt bearing anti-war slogans. At the time that the NYCLU introduced the billboard, it also announced the NYCLU’s support for a legislative proposal promoting free speech at malls. The billboard, however, made no mention of the legislation and was an example of general advocacy. (The billboard’s text read, “Welcome to the mall. You have the right to remain silent. Value free speech. www.nyclu.org.”) The New York Temporary State Commission on Lobbying attempted to require that the NYCLU include in its lobbying registration reports information about the expenses it incurred in sponsoring the billboard.

On Nov. 3, 2003, the NYCLU filed suit against the Lobbying Commission on First Amendment grounds. Within two days after the suit was filed, the Lobbying Commission withdrew its request for information from the NYCLU on the pretense that it had learned that the NYCLU had not paid for the billboard. When the NYCLU informed the state that, in fact, it had paid for the billboard, the Commission wrote back saying it still did not intend to pursue its request and thus considered the case to be moot. But the NYCLU has argued that the case is not moot unless and until it obtains a clear statement from the Lobbying Commission agreeing that general advocacy of the sort presented on the billboard is not lobbying because it does not involve direct communication with legislative or other public officials. On Feb. 24, 2004, the District Court denied the commission’s motion to dismiss the case. The NYCLU then proceeded with discovery.

In May 2006, both parties again moved for summary judgment. On Sept. 27, 2006, the District Court dismissed the case on the grounds that, since “there is no live case or controversy between the parties,” the NYCLU does not have standing to bring suit. On Jan. 11, 2007, the NYCLU appealed to the Second Circuit, asking the court to declare the Lobbying Commission policy unconstitutional and remand the case to the District Court to address the matter of appropriate injunctive relief. On June 6, 2008, the Second Circuit affirmed the district court’s ruling. Unlike the district court, the Second Circuit did not conclude the case was moot, but it nevertheless upheld the lower court’s grant of summary judgment in favor of the defendant and dismissal of the complaint because it ruled that the NYCLU’s First Amendment challenge was not, “as a prudential matter, ripe for judicial review.” 

S.D.N.Y., Index No. 03 Civ. 8665 (LAP) (direct)