One uncertain issue in election law is the extent to which grassroots lobbying can be constitutionally regulated. This is also a relevant current issue—as elements of the sharing economy clash with state and local laws, tech companies are calling on enthusiastic users to advocate on their behalf to legislators. This communication potentially could trigger lobbying disclosure requirements. Because grassroots lobbying focuses on encouraging individuals to contact legislators on their own initiative, requiring disclosure of this activity raises more First Amendment questions than requiring disclosure of traditional lobbying activity. A few state courts have addressed this issue, and the Eighth and Eleventh Circuits have weighed in, but largely this is an open question. The problem this year also focuses on justiciability questions, particularly the injury-in-fact element of standing, overbreadth standing, and the ripeness of pre-enforcement review questions.
The issues in this problem call attention to important questions raised by this new phenomenon, sometimes referred to as “astroturf” lobbying. “Astroturf” lobbying refers to lobbying that appears to be grassroots but is in actuality directed by corporate interests. The issue of whether, and to what extent, states can constitutionally require disclosure regarding this new form of issue advocacy will be important as it becomes more prominent. While the public may have a right to know about how corporations are trying to impact the political process, this type of disclosure requirement may burden not only corporations, but also issue and advocacy organizations that communicate with their members about legislative action.
Plaintiff myDoc, Inc. is a privately-held corporation, incorporated in California. myDoc, Inc. markets an application for use on smartphones and tablets. The myDoc app currently boasts over eight million users, including 81,000 active users residing in the state of Earhartington.
Defendant Earhartington Ethics Commission (“EEC”) is a state governmental organization established by the Earhartington Ethical Lobbying Act (the “ELA”), Eh. Gov’t Code §§ 30-50 (1974). The EEC investigates and brings suit for violations of the ELA. Its purview includes bribery, campaign finance, lobbying regulation and disclosure, and other political ethics issues.
A new sharing economy technology has just emerged in the U.S.—a smartphone and tablet app, called myDoc, is sweeping the country. The app, unlike medical forum websites, allows users to create an individualized medical profile and directly consult with a doctor. Doctors providing services on the site can check users’ vitals through the app, assess symptoms through a chat feature, and issue prescriptions and referrals.
The app is wildly popular; it saves sick individuals from making a trip to the doctor’s office simply for a prescription, allows for quick physician advice and assessments of whether in-person treatment is needed, and also cuts down on routine checkups. It is convenient for users and has also been saving doctors’ time. Membership is growing, and myDoc is quickly increasing revenues.
However, myDoc has been having some political trouble in the U.S. state of Earhartington. myDoc users in Earhartington enthusiastically use the app and want its presence legally strengthened, while the Earhartington Medical Association (the “EMA”) wants it gone (Earhartington doctors are losing business to doctors in other parts of the country due to this app). Some legislators in Earhartington, who receive considerable support from the EMA, have vowed to clarify the law and end myDoc for good.
In Earhartington, which is located in the First Circuit, Section 33(a) of the the Medical Practice Act (the “MPA”), 11 Eh. Pub. Health (1962), states that: “No person shall, for compensation, gain or reward, received or expected, diagnose, treat, operate or prescribe for any injury, deformity, ailment or disease, actual or imaginary, of another person, nor practice surgery, until he has obtained such a license as provided in Part (c) of this Section.” Section 33(b)(5) then provides an exemption to this law, which myDoc initially believed it would fit under.
But, in September 2014, the Earhartington state assembly proposed an amended Section 33(c) that would state that the exemption in Section 33(b)(5) “shall not apply to individuals providing services enumerated in part (a) from a state other than Earhartington electronically.” This change would effectively outlaw myDoc’s services—the legislature, though, will not vote on this proposed amendment until June of 2016.
myDoc has not taken this proposed change lightly. myDoc’s board of directors hired a lobbyist to meet with individual members of the Earhartington state assembly prior to debate and vote on the amendment. myDoc also considered launching a new marketing campaign, which would have consisted of a series of in-app communications, billboards, and mailers to communicate with their user base. However, myDoc decided not to launch the campaign because myDoc’s board of directors was concerned that it would alienate users, who view myDoc as a young, fresh startup. The board was also concerned that myDoc would then potentially have to follow the disclosure requirements in the Earhartington Ethical Lobbying Act.
Plaintiff myDoc brought this suit against the EEC in the United States District Court for the Eastern District of Earhartington, a fictional court under the jurisdiction of the Court of Appeals for the First Circuit. myDoc alleged that a section of the EEC’s organic statute, ELA § 47, which ambiguously requires disclosure of grassroots lobbying expenditures, is an unconstitutional restraint on free speech under the First Amendment. The EEC filed a motion for summary judgment on the grounds that (1) myDoc lacked standing and ripeness to bring this case before the court because there was no credible threat of enforcement and no intention to engage in the restricted activity, in addition to no overbreadth standing for myDoc; and (2) states can constitutionally require disclosure of lobbying expenses, both direct and indirect, without violating the First Amendment. The district court granted the EEC’s motion, and myDoc now appeals to the Court of Appeals for the First Circuit challenging the district court’s grant of summary judgment on both issues.
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