Menu icon Access the Business Officer Magazine menu by clicking or touching here.
Colorado Lawyer Magazine logo, click or touch this logo to return to the homepage Click or touch the Colorado Lawyer Magazine logo to return to the homepage. Search

Wyoming Gun Owners v. Gray.

Nos. 22-8019 & 22-8021. 10/11/2023. D.Wyo. Judge Tymkovich. Wyoming Campaign Finance Law—42 USC § 1983—Vagueness Challenges—Pre-Enforcement Challenges—Functional-Equivalent Standard—Attorney Fees under 42 USC § 1988.

October 11, 2023

Wyoming Gun Owners (WyGO) is a nonprofit gun rights advocacy group. In addition to ads on various media platforms, it funded and aired a provocative radio ad prior to Wyoming’s 2020 primary election that touted the pro-gun credentials of one candidate while portraying the other as out of touch with Wyoming values. The Wyoming Secretary of State (Secretary) determined that the ad was an electioneering communication, and it advised WyGO that it needed to disclose which of its donors funded the ad. WyGO refused to disclose its donors but later decided to accept the $500 civil penalty rather than comply with the disclosure rules. WyGO subsequently sued the Secretary and related parties under 42 USC § 1983 for violating its First and Fourteenth Amendment rights. It challenged Wyoming’s campaign finance statute (the statute), arguing that certain statutory provisions were void for vagueness and that the disclosure scheme was not constitutionally justified. The government moved to dismiss and moved for summary judgment. The district court dismissed WyGO’s facial vagueness challenge to the statute’s commentary exemption; its vagueness challenge as applied to the radio ad; its facial vagueness challenge to the law’s definition of “electioneering communications”; and its facial vagueness challenge to the scheme’s requirement that speech “related to” candidate campaigns must be disclosed, though it ultimately determined that the phrase “relate to” is void for vagueness as applied to WyGO. The court also dismissed WyGO’s pre-enforcement challenges to the functional-equivalent standard, the commentary exemption, and the newsletter exemption; and WyGO’s facial attack on the disclosure scheme. The court ruled in favor of WyGO on its as-applied challenge, finding that the statute fails exacting scrutiny for lack of narrow tailoring. Lastly, the district court denied WyGO’s request for attorney fees under 42 USC § 1988.

On appeal, WyGO contended that the district court erred in evaluating vagueness for its radio ad, which it claimed should fall under the statute’s commentary exemption. WyGO argued that the exemption is so vague that ordinary speakers are unable to discern its scope and boundaries. Wyoming’s campaign finance requires organizations that spend over $1,000 to issue an “electioneering communication”—a message aimed at advocating for or against a candidate—to notify the state and file a statement identifying itself and the donors whose contributions made the communication possible. The law has a commentary exemption that removes a “communication consisting of a news report, commentary or editorial or a similar communication” that is protected by the First Amendment from the ambit of “electioneering communications” and therefore from disclosure requirements. The commentary exemption plainly allows independent media companies and issue advocacy organizations to voice perspectives on political candidates that are not expressly advocating the election or defeat of specific candidates. Here, WyGO’s paid-for political radio ad does not plausibly fall within the exemption, and its as-applied vagueness challenge fails.

WyGO also argued that the statute’s definition of “electioneering communications” is vague as applied to its radio ad, challenging the definition’s incorporation of the functional-equivalent-of-express-advocacy standard (functional-equivalent standard). WyGO alleged that Wyoming offers no guidance on when a communication can only be reasonably interpreted as an appeal to vote for or against a candidate and that it clearly had multiple purposes in promoting its radio ad. The functional-equivalent standard is based on the US Supreme Court’s recognition of a constitutionally significant distinction between issue advocacy and advocacy that expressly advocates for or against a candidate. The Tenth Circuit reasoned that almost any attentive listener could discern that nearly every advocacy ad also seeks to satisfy existing donors, attract new donors, educate the public, or gain publicity. Accordingly, the functional-equivalent standard requires that the ad indisputably function as an appeal to vote for or against a candidate, and the fact that an ad might express a message in addition to such appeal does not remove liability for a communicating entity. Here, the radio ad described one candidate as a “brave champion” and the other as a “pathetic” backstabber. Its ad aired in the run-up to the primary election between the two candidates. No reasonable listener could deny that the ad, at least in part, exhorted listeners to vote for one candidate over the other. Therefore, Wyoming’s codified functional-equivalent standard is not vague as applied to the radio ad, and the district court properly concluded that the radio ad amounts to the functional equivalent of express advocacy.

The Secretary challenged the district court’s conclusion that the statute’s phrase “relate to” is vague as applied to WyGO. The statute requires disclosure of donors to the Secretary for donations that fund electioneering communications, providing that organizations should “[o]nly list those expenditures and contributions which relate to an independent expenditure or electioneering communication.” On the facts presented, it is unclear how the Secretary could determine whether WyGO reported contributions related to its electioneering communication. The “relate to” language authorizes arbitrary enforcement and does not inform WyGO what is required of it so it may act accordingly. Accordingly, the district court properly concluded that this provision is vague because it does not provide fair notice of the scope of donations plausibly covered.

WyGO also argued that the district court improperly dismissed its pre-enforcement vagueness challenges. WyGO maintained that it brought pre-enforcement challenges to the commentary exemption, the functional-equivalent standard, and the newsletter exemption, and requested a reinstatement of or decision on those claims. As to the newsletter exemption, WyGO did not plead a plausible void-for-vagueness claim, and the complaint does not sufficiently allege pre-enforcement void-for-vagueness claims as to either the commentary exemption or the functional-equivalent standard. However, WyGO successfully pleaded its challenge to the commentary exemption as applied to planned email communications. Therefore, the district court properly dismissed most of WyGO’s pre-enforcement claims but should have entertained a pre-enforcement challenge to the commentary exemption as applied to email communications.

The Secretary also contended that the district court erroneously determined that the law is unconstitutional as applied to WyGO, arguing that Wyoming’s disclosure regime is substantially related to an anticorruption interest and an informational interest. Here, the statute requires an organization that issues an electioneering communication to file a statement that (1) reports expenditures and contributions that relate to an independent expenditure or electioneering communication, and (2) identifies the name of whoever made the relevant contribution if the contribution exceeds $100. Compliance with these requirements necessarily burdens WyGO’s First Amendment right to association. While the Secretary demonstrated a substantial relation between Wyoming’s disclosure requirements and its informational interest, as applied to WyGO, the government did not demonstrate a special need for the disclosure regime’s unique burdens on WyGO and failed to justify why it could not use less intrusive tools to further its interests. Accordingly, the Wyoming disclosure regime is not narrowly tailored as applied to WyGO.

WyGO sought attorney fees below pursuant to 42 USC § 1988, which permits courts to award reasonable attorney fees to the prevailing party in a federal civil rights action. A plaintiff who succeeded on any significant issue in litigation is a prevailing party. Further, the Eleventh Amendment does not preclude WyGO from seeking § 1988 attorney fees. Therefore, the district court erred in deciding that attorney fees were unavailable.

The district court’s rejection of WyGO’s vagueness challenge to the commentary provision as applied to the radio ad was affirmed. The district court’s dismissal of WyGO’s facial vagueness challenge to the functional-equivalent standard and its dismissal of the challenge to the standard as applied to the radio ad were affirmed. The holdings that the phrase “relate to” is unconstitutionally vague as applied to WyGO and that the disclosure regime is not narrowly tailored as applied to WyGO were affirmed. While the district court’s dismissal of most of WyGO’s pre-enforcement challenges was affirmed, the dismissal as to WyGO’s planned email communications was reversed. The holding that WyGO could not obtain § 1988 attorney fees was reversed and the case was remanded for assessment of costs.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

Back to the From the Courts Page