CONTENTS |
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I. | Background | 424 |
II. | Analysis | 426 |
A. | Preliminary Issues | 426 |
1. | Ripeness | 426 | ||
2. | Standing | 427 |
a. | The Plaintiff Percy M. Armstrong | 429 | |||
b. | The Plaintiffs Indiana Volunteer Firemen's Association and Professional Firefighters' Union of Indiana | 430 | |||
c. | The Plaintiff Daniel L. Yuska | 430 |
3. | Eleventh Amendment Immunity and Abstention | 431 |
B. | The Merits of the Plaintiffs' Claims | 433 |
1. | Overbreadth: Indiana Code § 23–7–8–1's Application to Non–Charities | 433 | ||
2. | Overbreadth: Indiana Code § 23–7–8–6's Alleged Facial Violation of the First Amendment | 435 |
a. | Recent Supreme Court Precedent | 435 | |||
b. | Threshold Inquiry: Does the Statute Impact Upon Activities Fully Protected by the First Amendment? | 437 | |||
c. | Secondary Inquiry: Is the Statute the Least Restrictive Means of Promoting a Substantial State Interest? | 438 |
i. | The State Interest | 439 | ||||
ii. | The Tailoring of the Statutory Provisions | 440 |
(a) | Indiana Code § 23–7–8–6(a)(1) & (2) | 441 | |||||
(b) | Indiana Code § 23–7–8–6(a)(3) | 442 | |||||
(c) | Indiana Code § 23–7–8–6(b) | 444 | |||||
(d) | Indiana Code § 23–7–8–6(c) | 447 |
3. | Severability | 448 |
III. | Conclusion | 448 |
The powers of the Government are divided into three separate departments; the Legislative, the Executive ..., and the Judicial; and no person, charged with official duties under one of these departments, shall exercise any of the functions of another....
The Legislative authority of the State shall be vested in the General Assembly, which shall consist of a Senate and a House of Representatives ... and no law shall be enacted, except by bill.
A federal court's grant of relief against state officials on the basis of state law, whether prospective or retroactive, does not vindicate the supreme authority of federal law. On the contrary, it is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law. Such a result conflicts directly with the principles of federalism that underlie the Eleventh Amendment. We conclude that Young ... [is] inapplicable in a suit against state officials on the basis of state law.
prior authorities ... clearly establish that charitable appeals for funds, on the street or door-to-door, involve a variety of speech interests—communication of information, the dissemination and propagation of views and ideas, and the advocacy of causes—that are within the protection of the First Amendment.
But even assuming, without deciding, that such speech in the abstract is indeed merely “commercial,” we do not believe that the speech retains its commercial character when it is inextricably intertwined with otherwise fully protected speech. Our lodestars in deciding what level of scrutiny to apply to a compelled statement must be the nature of the speech taken as a whole and the effect of the compelled statement thereon.... Thus, where, as here, the component parts of a single speech are inextricably intertwined, we cannot parcel out the speech, applying one test to one phrase and another test to another phrase. Such an endeavor would be both artificial and impractical. Therefore, we apply our test for fully protected expression.16
necessarily discriminates against small or unpopular charities, which must usually rely on professional fundraisers. Campaigns with high costs and expenses carried out by professional fundraisers must make unfavorable disclosures, with the predictable result that such solicitations will prove unsuccessful. Yet the identical solicitations with its high costs and expenses, if carried out by the employees of a charity or volunteers, results in no compelled disclosure, and therefore greater success.
in the case of a [subdivision (1) ] solicitation24 conducted orally [that is, either in person or over the phone], a written confirmation shall be sent to each person who has contributed or pledged to contribute, within ten (10) days after that person has been solicited, or before the contribution is received by the solicitor. The disclosure must include a clear and conspicuous disclosure of the information required by subsection [6](a).
not believe that the [coerced] speech retains its commercial character when it is inextricably intertwined with otherwise fully protected speech [that is, the informative and perhaps persuasive speech that accompanies the solicitation].... [W]here, as here, the component parts of a single speech are inextricably intertwined, we cannot parcel out the speech, applying one test to one phrase and another test to another phrase. Such an enterprise would be both artificial and impractical. Therefore, [the Court] appl[ies the] test for fully protected expression.
[A]s we demonstrate, the burden here is hardly incidental to speech. Far from the completely incidental impact of, for example, a minimum wage law, a statute regulating how a speaker may speak directly affects that speech. Here, the desired and intended effect of the statute is to encourage some forms of solicitation and discourage others.
A written confirmation made by a person who solicits under subdivision (2) of the definition of “solicit” ... must disclose the information required by subsection [6](a)(1) and [6](a)(2) and the percentage of charitable contributions that are to be received by the charitable organization or the fee or compensation received by the consultant and the charitable organization under the contract with the charitable organization.
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