NYCLU Writes NY State Commission On Lobbying About Inquiry Into Coalition For Fairness

July 15, 2003 David M. Grandeau Executive Director New York Temporary State Commission on Lobbying Albany, New York 12223 Re: Coalition for Fairness, Benjamin Chavis and Russell Simmons Dear Mr. Grandeau: We are writing, on behalf of the New York Civil Liberties Union, with regard to the inquiry that the New York Temporary State Commission on Lobbying is currently pursuing with respect to the Coalition for Fairness, Dr. Benjamin Chavis and Russell Simmons. The right of individuals to communicate with public officials and to petition government for the redress of grievances lies at the core of the First Amendment. And it is well-recognized that any effort to regulate core First Amendment activities, such as lobbying, can be pursued only with sensitive tools. NAACP v. Button, 371 U.S. 415, 433 (1963). Such regulatory efforts must be narrowly tailored in the pursuit of compelling interests; and regulatory enforcement must be undertaken with neutrality and without regard to the content or views that are the subject of the communication. Perry Education Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (1983); Rosenberger v. University of Virginia, 515 U.S. 819 (1995). We have serious constitutional concerns with regard to the New York Lobbying Act on its face and as applied to the above-referenced matter. We are concerned about the facial overbreadth of the statute and we are concerned about the inequalities of treatment that are necessarily created by its considerable overbreadth. The statute, for example, does not confine itself to direct communication with legislators as required by the Supreme Court in United States v. Harriss, 347 U.S. 612, 620, 623 (1954) in order to avoid constitutional invalidity.1 Instead, it seeks to reach any attempt “to influence the passage or defeat” of any legislation, rule, regulation or of “any rate making proceeding” by any means including rallies, newspaper editorials and op-ed pieces. Such overbreadth in the context of the State Lobbying Act was so obvious, even to those who drafted the statute, that the legislation created an exception for newspapers and for radio and television stations who offer editorial opinions on proposed legislation. However, this exemption for the media, while undoubtedly compelled by the First Amendment, creates other First Amendment problems. For in privileging the media in this fashion, the statute violates First Amendment and Fourteenth Amendment equality principles. Simon & Schuster v. Crime Victims Board, 502 U.S. 105 (1991); Branzburg v. Hayes, 408 U.S. 665, 684 (1972). This privileging of the media provokes the question as to why Rupert Murdoch, whose newspaper might write an editorial urging readers to contact their legislators, is entitled to an exemption from the statute’s regulatory requirements while Murdoch’s next door neighbor who writes and finances an editorial advertisement to that effect is not. Surely the answer cannot lie in the fact that Murdoch owns a printing press but that his neighbor does not. Yet, at bottom, any effort to offer a principled basis for the distinction simply exposes the overbreadth of the statute. We understand that the Temporary Commission has issued an advisory opinion indicating that it would not apply the New York statute “in any context outside the definition of lobbying contained in the Harriss case.” Commission of Independent Colleges and Universities, 534 F. Supp. 489, 397 (N.D.N.Y. 1982). It would appear, however, that the Commission is violating that commitment to the degree that it is seeking information from the Coalition for Fairness and others about public rallies and public broadcasts in which that organization and others may have been involved. In this letter, however, we put to one side, for now, our reservations about the facial validity of the statute. Instead, we focus upon two aspects of the Temporary State Commission’s investigation of the Coalition for Fairness: Our first concern involves the seemingly confrontational manner in which the Commission is proceeding. Our second concern involves the possibility that this particular investigation was undertaken because of the substantive public policy positions advanced by the Coalition. Our concern about the manner in which the Commission is proceeding rests upon our sense that citizen participation in public debate about policy issues should be encouraged, not discouraged. Accordingly, individuals who are not professional lobbyists but simply individuals and ad hoc groups exercising their constitutional right to petition government should be given a fair warning as to what is required by the State Lobbying Act. They should be told, for example, that the Act only extends its regulatory reach to “direct communication” with legislators if that is, in fact, the case. And they should be given an opportunity to complete such disclosure forms as are necessary and to discuss whether registration is required with counsel and with the Commission without being immediately threatened with fines, subpoenas and investigations. As we understand matters, such fair warning and reasonable opportunity was not provided in this case. Instead, the Commission pursued a confrontational approach that seems unwarranted and deeply at odds with the Commission’s responsibility to respect the core constitutional values that are at stake here. The Commission’s aggressive approach is all the more inappropriate where, as here, the Coalition, Chavis and Simmons were not proceeding in a secret or clandestine manner but were open and public about what they were saying and with whom they were meeting. Our second concern rests upon the perception that the threatened investigation and pursuit of the Coalition, Chavis and Simmons seem so excessive as to suggest that such conduct rests upon a desire to retaliate against the organization for its substantive policy position. This concern about viewpoint-based retaliation is reinforced by the fact that an examination of your website indicates that the New York State District Attorneys Association has not been required to register as a lobbying organization.2 Viewpoint-based retaliation is, of course, a clear violation of First Amendment equality principles. Rosenberger, supra; See also Locurto v. Guiliani, 2003 WL 21459707 (June 24, 2003). Such a potential constitutional violation suggests the need to look more closely at the behavior of the Temporary Commission in this case. Limited scrutiny is made possible by the New York Freedom of Information Law (FOIL) which allows the public to review documents of state and local agencies and does not provide an exemption from review for documents relating to civil investigations. Bello v. State of New York Department of Law, 208 A.D. 2d 832, 617 N.Y.S. 2d 856 (2nd Dept. 1994). We, therefore, ask that you treat this letter as a formal request for documents under the Freedom of Information Law and, in this regard, that you refer this letter to the Commission’s Records Access Officer. The documents that we seek are as follows:

1. Any and all complaints or paper correspondence, maintained in the offices of the Temporary Commission, on the subject of Russell Simmons or Dr. Benjamin Chavis or the Coalition for Fairness from the New York State District Attorneys Office or from any other entity or person between January 1, 2003 to the present.
2. Any and all electronic correspondence, maintained in the offices of the Temporary Commission, on the subject of Russell Simmons or Dr. Benjamin Chavis or the Coalition for Fairness from the New York State District Attorneys Office or from any other entity or person between January 1, 2003 to the present.
3. Any and all telephone logs, maintained in the offices of the Temporary Commission, on the subject of the Rockefeller Drug Laws or on any related subject including the activities of Russell Simmons or Dr. Benjamin Chavis or the Coalition for Fairness from January 1, 2003 to the present.

Thank you for your prompt attention to this matter. Sincerely, Donna Lieberman Executive Director Arthur Eisenberg Legal Director