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

Starting at City of Maryland Heights against the StateThe Missouri Supreme Court ruled in favor of the petition Tuesday, with Chief Justice Paul Wilson’s opinion:

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….

The section 115.646 of the Civil Code was used to initiate Plaintiffs’ lawsuit.

Officers, employees, and agents of political subdivisions shall not make direct contributions or expend public funds to support or advocate any candidate or ballot measure. This article is not meant to stop any political subdivision public official from speaking publicly or from issuing press release about any of these ballot measures.

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

Although section 115.646 is not intended to govern speech made by public officials, it does allow them to use private funds. The use of personal or private funds to subsidise officials’ speech is not prohibited by section 115.646. And so, while section 115.646 doesn’t limit or ban officials from speaking freely, it prohibits them using public funds for the purpose of facilitating or augmenting their speech. Look! Sweetman v. State Elections Enf’t Comm’n(Conn. 1999.) Rejecting arguments that a comparable statute would have chilled speech, because:[t]The statute doesn’t prohibit public officials speaking, it just prohibits them using public funds to buy soapboxes.”

The Supreme Court recognized that “a refusal to finance protected activity without more cannot be equated the imposition of an ‘penalty” on such activity. Rust v. Sullivan (1991). The result was “[a]The legislature’s refusal to subvention the exercise of fundamental rights does not violate the right.

{The plaintiffs don’t argue that section 115.646 is in violation of the First Amendment rights to political subdivisions. It regulates a political subdivision using public funds for its messages through its employees, agents, and officials. This argument is not valid because the First Amendment does not protect government speech. Pleasant Grove City v. Summum (2009).}

The court found that the statute was not unconstitutionally vague.

First, the circuit judge declared the “ballot-measure” term vague. This was because they believed that it wasn’t clear when a proposition becomes “ballot”. … [But]The section 130.011(2) gives a definition for “ballot measurement” which, although not specifically applicable to chapter 115 in any way, is compatible with common understanding and disproves that it is difficult for a normal person to understand. Look! § 130.011 (defining “ballot measures” as “any proposal submitted or intended to be submitted to qualified voters for their approval or rejection”). It will usually be easy to determine whether or not a proposed is meant to be submitted for approval by voters, particularly once the process of getting it on to the ballot begins. Even if the distinction between an idea or a proposal is unclear in certain circumstances, speculation about hypothetical vagueness not before the Court won’t support any facial attack against a statute that is valid in most of its intended uses. Colorado v. Hill (2000).

The circuit court … declared “public funds,” and whether those funds were spent “directly” by the official, to be vague. The circuit court came to this conclusion by citing a number of possible scenarios which might be considered close calls under the statute. As we have explained before, speculation regarding hypothetical scenarios is not sufficient to support facial attacks. However, language that can be understood by an average person (e.g. “public funds” or “directly”) conveys the essence of section 115.646 in most intended applications. Common understanding of “public funds”, “directly” gives an ordinary person with intelligence enough notice about the prohibited behavior.

Finally, the circuit court made a mistake declaring “advocate”, support or oppose to be constitutionally vague. People of normal intelligence are familiar with the terms “advocate support or oppose”. These terms are result-oriented terminology, not just discussion about issues. There may be uncertainties in some cases, but it’s not necessary to give exact details.