On July 12, a panel of the U.S. Court of Appeals for the Fourth Circuit overturned a ruling from the District of Maryland that dismissed a challenge to a state law that limits access to Maryland’s registered voter list to Maryland registered voters. (The author of this post is lead counsel for the plaintiff / appellant.) Writing for the unanimous panel in Fusaro v. Cogan, Judge Robert B. King ruled that there are First Amendment implications in restricting access to a voter list this way—especially one that by its own terms is facilitated strictly for purposes “related to the electoral process.” The appellate court ruled that this free speech concern must be balanced against state interests, and remanded the case to district court to conduct that analysis.
Public records doctrine is, at a glance, fairly cut-and-dry. In Los Angeles Police Dep’t v. United Reporting Publishing Corp., the Supreme Court ruled 7-2 that the government has no obligation under the First Amendment to provide public documents such as arrest records, and overruled a facial challenge to a California law that restricted access to such documents only for certain uses, including, in that case, “‘journalistic, political, or governmental purpose[s]’”. More recently, the Court ruled in McBurney v. Young that the Privileges & Immunities Clause of Article IV of the Constitution does not require a state freedom of information law to accommodate nonresidents. These rulings would seem to foreclose Dennis Fusaro, a Virginia resident who thus cannot register to vote in Maryland, from acquiring the list.
Yet there has always been room for exceptions. In Sorrell v. IMS Health, the Court refused to extend United Reporting to permit prohibitions on disclosure of information in private hands, even if the data in question is gathered by government mandate. In briefing Fusaro, the Maryland AG’s office hinted, but did not explicitly concede, that “electoral process” prohibition likely prohibits Fusaro from acquiring the list even from third parties. Even in United Reporting itself, concurring opinions allow that First Amendment concerns could arise for viewpoint-based restrictions or certain identity-based restrictions on access, even for identities that are not suspect classes under the Equal Protection Clause. As Justice Scalia stated in a short concurrence:
[I]t is an entirely different question whether a restriction upon access that allows access to the press (which in effect makes the information part of the public domain), but at the same time denies access to persons who wish to use the information for certain speech purposes, is in reality a restriction upon speech rather than upon access to government information.
Notably, after United Reporting’s facial challenge was overturned, the case settled when it returned to district court. Maryland’s voter list restrictions reflect a similar quagmire, as the Fourth Circuit recognized:
[W]hen the Maryland legislature decided to make the List publicly available, it could not condition access to the List on any basis whatsoever. We need not now decide if – as United Reporting perhaps suggests – some conditions on the release of government information are so innocuous as to fall outside of the First Amendment’s protection. We conclude only that the List is a means of political communication, and the combined effect of the content- and speaker-based restrictions placed in § 3-506 present a sufficient risk of improper government interference with protected speech that Fusaro may challenge § 3-560 in federal court.
The court declined to accept that United Reporting forecloses a First Amendment challenge to Maryland’s voter list restrictions, but scrutiny of the law is not easily slotted into any well-established First Amendment doctrine. The Fourth Circuit declined to apply strict scrutiny, and settled on the latter part of the Anderson-Burdick framework, or an “ad hoc balancing” of the lesser speech burden with the governmental interests advanced by the regulations. As the governmental interests were not considered by the district court, the case was remanded.
The opinion is novel. “The type of claim that Fusaro pursues – namely, a free speech challenge to conditions that a state has imposed on the release of voter registration data – has apparently never been addressed by any appellate court.” The opinion is thus an important, though admittedly short, step toward reconciling free speech and public records doctrine: indeed, one reason the question has not come up owes a lot to other states not enacting voter list laws like Maryland’s. The case may head back to district court uninterrupted, or perhaps undergo en banc review or even certiorari to the Supreme Court, but for now it is an important affirmation that while “‘[t]he Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act’” (Houchins v. KQED, Inc.), certain public records are inseparable from free speech.