Auburn Police Union v. Carpenter

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 92-1951

AUBURN POLICE UNION, ET AL.,

Plaintiffs, Appellants,

v.

MICHAEL E. CARPENTER,
ATTORNEY GENERAL OF THE STATE OF MAINE,

Defendant, Appellee.

No. 92-2028

AUBURN POLICE UNION, ET AL.,

Plaintiffs, Appellees,

v.

MICHAEL CARPENTER,
ATTORNEY GENERAL OF THE STATE OF MAINE,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Cyr, Circuit Judge,

Campbell, Senior Circuit Judge,

and Boudin, Circuit Judge.

Errol Copilevitz with whom John P. Jennings, Jr., Copilevitz,

Bryant, Gray & Jennings, P.C., Leland N. Chisholm and Kelly, Remmel &

Zimmerman were on brief for plaintiffs.

MacKenzie Canter, III, Leonard J. Henzke, Jr., Lehrfeld, Canter,

Henzke & Diskin and George Gills on brief for Maine State Troopers

Association, National Association of Police Officers, National
Troopers Coalition and Texas State Troopers Association, Amici Curiae.
Stephen L. Wessler, Deputy Attorney General, with whom Michael E.

Carpenter, Attorney General, and Thomas D. Warren, Deputy Attorney

General, were on brief for defendant.

November 12, 1993

CAMPBELL, Senior Circuit Judge. The State of Maine

has enacted a law (hereinafter "the Act") prohibiting a

person from soliciting property from the general public that

tangibly benefits any law enforcement officer, agency or

association.1 Violations of the Act are declared to

contravene the Maine Unfair Trade Practices Act, and they may

be enjoined and penalized civilly. Me. Rev. Stat. Ann. tit.

5, 209 (West 1992).

Plaintiffs comprise a coalition of police unions,

individual law enforcement officers, a professional

fundraiser and a private citizen.2 They sued in the United

States District Court for the District of Maine pursuant to

1. Entitled the "Solicitation by Law Enforcement Officers
Act," the statute provides that:
A person may not solicit property from the general
public when the property or any part of that
property in any way tangibly benefits, is intended
to tangibly benefit or is represented to be for the
tangible benefit of any law enforcement officer,
law enforcement agency or law enforcement
association.
Me. Rev. Stat. Ann. tit. 25, 3702-A (1992).

2. Plaintiffs include the Auburn Police Union, the Portland
Police Benevolent Association, and the Lewiston Police Union
all of which come within the definition of a "law
enforcement association" as defined in Me. Rev. Stat. Ann.
tit. 25, 3701(2); Leonard Dexter, Kevin MacDonald, and
David B. Chamberlain all of whom are officers of law
enforcement associations; R.H. McKnight Co., Inc., a
corporation in the business of fundraising and promotions on
behalf of law enforcement officers, agencies, and
associations through sale of advertising and publication of
trade magazines, programs and handbooks; and Charles
Underwood, a private citizen who wishes to advertise in
police publications and to receive copies of those
publications.

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42 U.S.C. 1983, seeking to enjoin the Act and to have it

declared unconstitutional under the First and Fourteenth

Amendments to the United States Constitution.

While declaring that the provision for injunctive

enforcement was an unconstitutional prior restraint, the

district court otherwise upheld the Act against plaintiffs'

overbreadth and equal protection challenges. Both the State

of Maine and plaintiffs appeal. We vacate the district

court's determination that the injunctive relief provision

amounts to an impermissible prior restraint, and affirm the

district court's upholding of the constitutionality of the

Act.

I.

As the Act was originally enacted in 1977, its sole

exception was for solicitations by or on behalf of law

enforcement officers campaigning for election to public

office an exception still in existence. Me. Rev. Stat.

Ann. tit. 25, 3703. In 1983, the Act was amended to allow

game wardens to sell historical publications describing state

parks.3 Me. Rev. Stat. Ann. tit. 25, 3702.

3. After the 1983 amendment, section 3702 provided the
following:
No person may solicit property from the
general public when the property, or any part of
it, in any way benefits, is intended to benefit or
is represented to be for the benefit of any law
enforcement officer, law enforcement agency or law
enforcement association, except that any state
warden service association may offer for sale, by

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In 1983, Maine's Attorney General brought an action

under the Unfair Trade Practices Act, Me. Rev. Stat. Ann.

tit. 5, 205-A to 214, against the Maine State Troopers

Association ("M.S.T.A.") a law enforcement association as

defined in Me. Rev. Stat. Ann. tit. 25, 3701(2) to

enjoin the M.S.T.A. from engaging in solicitations in

violation of 3702. The Attorney General alleged that the

M.S.T.A. had sold and offered to sell advertisements to Maine

businesses for insertion in its magazine, "The Maine State

Trooper." The M.S.T.A. challenged the Act's

persons other than wardens or members of the
association, to members of the public guide books
or handbooks containing historical reviews or
descriptions of services, except that on the
request of a nonmember the association may provide
that person with the copies requested for sale by
that person. No advertisements may be sold or
included in these publications, except greetings or
complimentary statements from members or former
members which shall give the full name of the
member or former member. A stated rate for this
advertisement space shall be published and no funds
in excess of that stated rate may be accepted by
the association for space.
A record of receipts and sales for space and
sales of the publication shall be kept and
available to the public during normal working
hours.
All proceeds from these sales shall be
expended for direct charitable services to members
or their spouses, widows, children, widowers or
parents and may not be used for buildings or
equipment, construction or maintenance or
entertainment of members.
Any violation of this chapter shall constitute
a violation of Title 5, chapter 10, the unfair
trade practices laws.
Me. Rev. Stat. tit. 25, 3702.

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constitutionality, and the case went to the Maine Supreme

Judicial Court (the "Law Court"), which in 1985 upheld the

Act as constitutional. See State v. Maine State Troopers

Ass'n ("MSTA"), 491 A.2d 538 (Me.), appeal dismissed, 474

U.S. 802 (1985).

The Law Court found that Maine had a compelling

interest in avoiding police coercion. It found irrelevant

the subjective intent of the solicitor and the absence of any

complaint of coercion: ". . . at least the appearance of

coercion inheres in every solicitation on behalf of law

enforcement," undermining "the integrity of the office." Id.

at 542-43. The Law Court noted the Maine Legislature's

finding that "[s]olicitation by a law enforcement agency is

inherently coercive." Id. In the court's view, the State's

interest "in protecting the reputation of its law enforcement

bodies is undeniably substantial. Indeed, we would be hard

pressed to suggest a weightier interest." Id. Holding the

statute not to be "fatally overbroad," the Law Court

emphasized that "the integrity of the State's law enforcement

agents is cast in doubt with every solicitation on their

behalf." Id. Thus the court found the Act constitutional.

The Law Court, however, affirmed the lower court's

decision that under the Equal Protection Clause of the

Fourteenth Amendment, the State could not impose any greater

restrictions on the solicitation activities of other law

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enforcement officers than were imposed upon state wardens.

Id. at 544.4 The Maine State Troopers Association appealed

from the Law Court's decision to the Supreme Court of the

United States, which summarily dismissed the appeal for want

of a substantial federal question. Maine State Troopers Ass'n

v. Maine, 474 U.S. 802 (1985).

In 1989, following the Supreme Court's summary

dismissal of the appeal in MSTA, the Maine Legislature

amended the Act so as to permit the Department of the

Attorney General to charge for the cost of consumer education

materials. Me. Rev. Stat. tit. 25, 3706. The Legislature

additionally amended the Act to permit solicitations for a

period of one year, later extended an additional six months,

to raise funds for the construction of a memorial to slain

police officers. Priv. & Spec. Laws 1989, Ch. 47; Priv. &

Spec. Laws 1990, Ch. 114.

In 1990, the same plaintiffs who brought the

present suit challenged the constitutionality of the Act in

the federal district court. See Auburn Police Union v.

Tierney ("Auburn I"), 756 F. Supp. 610 (D. Me. 1991). The

district court affirmed the magistrate judge, who ruled in a

comprehensive opinion that the Supreme Court's summary

4. The Law Court affirmed the lower court's judgment that
the M.S.T.A. should be permitted to sell their publications
to the general public, subject to the same restrictions
imposed on associations of state wardens by Me. Rev. Stat.
Ann. tit. 25, 3702.

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dismissal of MSTA was not a binding precedent because the

Legislature's enactment of the above exceptions had

undermined MSTA's premise that all solicitation by law

enforcement officers and organizations is inherently

coercive. Id. at 616.5 The court held that the Act was

unconstitutionally overbroad and invalid on its face because

"[a] complete prohibition on police solicitation is not

narrowly tailored to Maine's evident interest in banning

some, but not all, such solicitation." Id. at 618. The

court further concluded that the Act violated the Equal

Protection Clause of the Fourteenth Amendment because the

State could not demonstrate a substantial governmental

interest in permitting police solicitation for a memorial to

slain officers, while prohibiting police solicitation for

other causes. Id. at 619. Finally, the district court

determined that the Act constituted an impermissible prior

restraint because it "silences by fiat an entire category of

charitable solicitation." Id. at 618. The State of Maine

did not appeal in that case.

Instead, in 1991, the Maine Legislature repealed

the exemptions, except for the exemption for solicitations by

5. The magistrate judge rejected arguments that MSTA and the

case before him turned on "very different" facts and that
post-MSTA developments undermined MSTA's precedential value.

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or on behalf of law enforcement officers running for public

office.6 The Legislature then reenacted the prohibition on

solicitations with one material change the Legislature

added the word "tangibly" prior to the word "benefits" in the

new 3702-A so as to "clarif[y] that the ban on

solicitations applies only when the solicitations provide a

tangible benefit to law enforcement." Sen. Amend. B to L.D.

1682 (115th Legis. 1991).

In October 1991, the Department of the Attorney

General proposed rules under the Unfair Trade Practices Act,

Me. Rev. Stat. Ann. tit. 5, 207, defining the word

"tangibly" as used in 3702-A.7 Me. Dep't of Att'y Gen.

26-239 (1991). These rules provide that "a solicitation

which is completely unrelated to law enforcement officers,

although it increases good will toward law enforcement, does

not confer a tangible benefit," whereas "[a] solicitation

6. In addition to repealing the exception allowing the
Department of the Attorney General to charge for the cost of
consumer education materials, Me. Rev. Stat. Ann. tit. 25,
3706, the Legislature repealed the exception permitting State
Warden Service associations to sell guide books but not
advertisements, Me. Rev. Stat. Ann. tit. 25, 3702, and an
exception permitting non-law enforcement officers to sell
advertising in publications of the Department of Inland
Fisheries and Wildlife, Me. Rev. Stat. Ann. tit. 25, 3705.
The Private and Special Laws permitting solicitations to
raise funds for the construction of a memorial to slain
police officers expired by their own terms. Priv. & Spec.
Laws 1989, Ch. 47; Priv. & Spec. Laws 1990, Ch. 114.

7. The Attorney General has rulemaking authority under the
Unfair Trade Practices Act. Me. Rev. Stat. Ann. tit. 5,
207-2.

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which funds a law enforcement program, which otherwise would

have to be funded through law enforcement's own budgeting

processes, does confer a tangible benefit." Id.8

8. The "Rules Concerning Unfair Trade Practices and
Charitable Solicitations by Law Enforcement Officers" provide
the following:

109.1 SOLICITATIONS THAT TANGIBLY BENEFIT LAW
ENFORCEMENT

A solicitation tangibly benefits a law
enforcement agency, officer, or association if the
proceeds of that solicitation are used, represented
to be used, or intended to be used to support a law
enforcement program or purpose which a law
enforcement agency or association otherwise would
have to fund through its own budgeting mechanism.
Examples of solicitations which tangibly benefit
law enforcement are as follows: (1) A solicitation
which raises money from community members to pay
for the purchase of equipment for a local police
department; (2) A solicitation to send an officer
into school classrooms to conduct anti-drug abuse
training (the money paying for the officer's salary
and for education materials); and (3) The
solicitation of funds for erection of a monument to
memorialize slain officers, which was permitted by
prior law, Priv. & Spec. Laws 1989, ch. 47.

109.2 SOLICITATIONS THAT DO NOT TANGIBLY BENEFIT
LAW ENFORCEMENT

A solicitation of money for purposes
completely unrelated to law enforcement, such as
for a charity unrelated to law enforcement, does
not confer a tangible benefit on law enforcement
even if the solicitation effort increases good will
toward law enforcement. For example, if police
officers engage in solicitations of money for
earthquake victims in South America, and if no law
enforcement agency, officer, or association
receives, is intended to receive, or is represented
to receive any of the proceeds of the solicitation,
then that solicitation program will not tangibly

benefit law enforcement.

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Plaintiffs brought the present suit on September

27, 1991, seeking a declaratory judgment that 3702-A is

both facially unconstitutional and unconstitutional as

applied. Preliminary and permanent injunctions against

enforcement of 3702-A were requested. Several plaintiffs

alleged that they wanted to solicit advertising from the

business community and to place those advertisements in

police magazines like the "Maine State Trooper," and that the

Act prohibited this conduct. According to plaintiffs,

3702-A violates the First and Fourteenth Amendments because

it is unconstitutionally overbroad, serves as an

impermissible prior restraint on their freedom of speech, and

denies to them the equal protection of the laws.

The district court held that the provision for

enforcement of the Act through injunctive relief created an

impermissible prior restraint. Otherwise, it upheld the

constitutionality of 3702-A. See Auburn Police Union v.

Carpenter ("Auburn II"), 798 F. Supp. 819 (D. Me. 1992).

Plaintiffs appeal, arguing that the Act is unconstitutionally

overinclusive and underinclusive. Maine argues in response

that the United States Supreme Court's summary dismissal of

the appeal in MSTA must be accorded binding precedential

effect on the issues of overbreadth and underinclusiveness.

Even if the Supreme Court's summary dismissal does not

Me. Dep't of Att'y Gen. ch. 109.

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control, Maine argues that the Act must still be upheld

because it is narrowly tailored to serve a compelling

interest. Maine also appeals from the district court's

declaration that the injunctive relief provision constitutes

an impermissible prior restraint.

II.

This appeal presents difficult questions. We must

decide, first, what issues are foreclosed by the Supreme

Court's dismissal for want of a federal question of the

appeal in MSTA. And, if any of the First and Fourteenth

Amendment issues raised by appellants are not foreclosed by

MSTA, we must decide them.

In the enabling Act, the Maine Legislature said

that the Act:

clarifies and reaffirms that the primary
and compelling purpose underlying the
laws governing solicitation by law
enforcement officers is to eliminate the
coercion that is inherent in
solicitations by and on behalf of law
enforcement officers by prohibiting such
solicitations. When a law enforcement
officer solicits from a prospective
donor, the donor may not feel totally
free to reject the request in light of
the officer's position . . . .

Priv. & Spec. Laws 1991, Ch. 510 5. We set forth in an

appendix the full text of this section of the enabling Act.

In challenging the Act, appellants contend it goes

far beyond what is constitutionally permissible and necessary

to address whatever valid concerns exist about the

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coerciveness of police solicitations. Appellants insist that

such dangers, if any, must be regulated more narrowly, for

example, by legislation prohibiting solicitation by officers

in uniform, or requiring that solicitation be done only by

persons who are not themselves police officers. The present

total ban on solicitation by any "person" when the property

or any part of it "in any way tangibly benefits, is intended

to tangibly benefit or is represented to be for the tangible

benefit of any law enforcement officer . . . agency or

. . . association," is said to be unconstitutionally broad,

foreclosing innocent actions and speech that could not

possibly cause any of the evils the Maine Legislature fears.

For example, the Act would bar placing an unattended

collection box for a police charity in a public place, even

though doing this could not, appellants say, exert a coercive

influence. Appellants say that the Act does not adopt, as

the First Amendment requires, the least restrictive means to

address the evil of police coercion; that it is a prior

restraint, not only because of the conferred injunctive

powers but because of its overall scheme; and that it offends

other constitutional principles.

These issues are not easy given the protection our

Constitution affords speech and speech-related activities.

Nonetheless, we conclude that the Maine Legislature's effort

to deal with the dangers of police solicitation is within its

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constitutional authority. We hold that the Supreme Court's

dismissal of the MSTA appeal is binding on the overbreadth

issue, and that appellants' remaining constitutional claims

are insufficient.

A. Standard of Review

This case was submitted below on a stipulated

record and upon cross-motions for summary judgment. In such

a case, we review the district court's determinations de

novo. Brewer v. Madigan, 945 F.2d 449, 452 (1st Cir. 1991);

New England Legal Found. v. Massachusetts Port Auth., 883

F.2d 157, 167 (1st Cir. 1989).

The standard for reviewing appellants' First

Amendment claims depends upon whether the Act's effects on

speech are content-based. Content-based regulations are

subject to strict judicial scrutiny; they are "presumptively

invalid." R.A.V. v. St. Paul, 112 S. Ct. 2538, 2542 (1992);

Simon & Schuster, Inc. v. Members of New York State Crime

Victims Bd., 112 S. Ct. 501, 508 (1991) ("the Government's

ability to impose content-based burdens on speech raises the

specter that the Government may effectively drive certain

ideas or viewpoints from the marketplace. [citation omitted]

The First Amendment presumptively places this sort of

discrimination beyond the power of the Government.").

The district court regarded the Act's restrictions

as content-based, being limited to solicitations of property

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that tangibly benefits law enforcement officers and groups,

and not extending to other sorts of solicitations. See

Burson v. Freeman, 112 S. Ct. 1846, 1850-51 (1992) (plurality

opinion) (statute prohibiting solicitation of votes, but

allowing other forms of solicitation within one hundred feet

of poll is content-based); cf. Heffron v. International Soc'y

for Krishna Consciousness, Inc., 452 U.S. 640, 648-49 (1981)

(rule that no person or organization, whether commercial or

charitable, may solicit except from a rented booth is

content-neutral restriction as it "applies evenhandedly to

all who wish to distribute and sell written materials or to

solicit funds"). Maine denies that the Act is

content-based, arguing that 3702-A prohibits only the act

of soliciting for something that tangibly benefits law

enforcement. According to the State, the content of the

solicitation i.e., whether the message is that funds are

needed for more equipment, to advocate strengthening the drug

laws, or to promote capital punishment legislation is not

relevant to 3702-A's ban on solicitation.

But while the Act may not regulate the details of a

given solicitation, the fact remains that it applies to, and

prohibits, only certain types of solicitation, necessitating

an examination of the content of each solicitation in order

to determine whether the Act's criteria are implicated. The

Supreme Court has pointed to "the reality that solicitation

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is characteristically intertwined with informative and

perhaps persuasive speech seeking support for particular

causes or for particular views on economic, political, or

social issues, and for the reality that without solicitation

the flow of such information and advocacy would likely

cease." Shaumburg v. Citizens for Better Env't, 444 U.S.

620, 632 (1979). Like the court below, we conclude that the

Act falls on the side of content-based regulation. As such,

it is subject to "exacting First Amendment scrutiny."9

Riley v. National Fed'n of the Blind, Inc., 487 U.S. 781, 788

(1988).

B. Overbreadth Binding Precedential Effect of

MSTA

9. Perhaps it might be argued although Maine has not done
so that the Act is content-neutral because it seeks to
prevent only the harmful "secondary effects" of solicitation,
i.e., the implied coercion inherent in solicitation on behalf
of law enforcement personnel, with the resulting loss of
integrity. Restrictions based on the content of speech that
seek to regulate only the "secondary effects" of the speech
have, in certain situations, been deemed content-neutral
because they "serve purposes unrelated to the content of the
expression." Ward v. Rock Against Racism, 491 U.S. 781, 791

(1989); see Renton v. Playtime Theatres, Inc., 475 U.S. 41,

47 (1986), reh'g denied, 475 U.S. 1132 (1986). But even if

this argument had not been waived, it is doubtful that these
cases, involving very dissimilar facts and regulatory
schemes, would apply here. Cf. R.A.V., 112 S. Ct. at 2549

(listeners' reactions to speech are not "secondary effects").
In any event, we need not enter into the thicket of the
"secondary effects" doctrine, as we conclude, infra, that, to

the extent not controlled by the Supreme Court's summary
dismissal of the MSTA appeal, the Act survives the stringent

scrutiny applicable to content-based regulation.

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We move to Maine's argument that the summary

dismissal of the appeal in MSTA by the Supreme Court of the

United States is entitled to binding precedential effect on

the issues of overbreadth and underinclusiveness.10

The Supreme Court's summary disposition of an

appeal to it is an adjudication on the merits that must be

followed by lower courts, subject, of course, to any later

developments that alter or erode its authority. Hicks v.

Miranda, 422 U.S. 332, 343-45 (1975). We need, therefore, to

determine the "reach and content" of the Supreme Court's

dismissal of the appeal in MSTA for want of a substantial

federal question. See id. at 345 n.14.11

10. We find no merit in plaintiffs' contention that Auburn

I, 756 F. Supp. 610, is stare decisis. This court is not

bound by a district court opinion that was never appealed to,
or affirmed in, this court. See 1B Moore's Federal Practice

0.402[2], p.I-23 (1993) ("the doctrine of stare decisis makes
a decision on a point of law in one case a binding precedent
in future cases in the same court, and such courts as owe

obedience to the decision.") (emphasis added).

11. Both courts and commentators have noted the difficulty
of ascertaining the proper reach of a Supreme Court summary
disposition. See Hicks, 422 U.S. at 345 n.14

("[a]scertaining the reach and content of summary actions may
itself present issues of real substance"); Fusari v.

Steinberg, 419 U.S. 379, 391 (1975) (Burger, C.J.,

concurring) ("Another common response to summary affirmances
. . . is confusion as to what they actually do mean."), reh'g

denied, 470 U.S. 955 (1975); Preston v. Seay, 684 F.2d 172,

173 (1st Cir. 1982) ("It is of course often difficult to
understand the proper reach of Supreme Court summary
affirmances and dismissals for want of a substantial federal
question"); Note, "The Precedential Effect of Summary
Affirmances and Dismissals for Want of a Substantial Federal
Question by the Supreme Court After Hicks v. Miranda and

Mandel v. Bradley," 64 Va. L. Rev. 117, 130 (1978) (noting

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In Mandel v. Bradley, 432 U.S. 173 (1977), the

Supreme Court said that, "[s]ummary affirmances and

dismissals for want of a substantial federal question without

doubt reject the specific challenges presented in the

statement of jurisdiction and do leave undisturbed the

judgment appealed from. They do prevent lower courts from

coming to opposite conclusions on the precise issues

presented and necessarily decided by those actions." Id. at

176; see Illinois State Bd. of Elections v. Socialist Workers

Party, 440 U.S. 173, 183 (1979) ("Questions which 'merely

lurk in the record,' are not resolved, and no resolution of

them may be inferred.") (quoting Webster v. Fall, 266 U.S.

507, 511 (1925)). The Supreme Court's summary disposition

will not control later lower court cases involving

significantly dissimilar facts. See Mandel, 432 U.S. at 177

(vacating lower court decision that summary affirmance was

binding because facts in summary affirmance were "very

different" from those before lower court). The Supreme Court

further cautioned that summary dispositions "should not be

understood as breaking new ground but as applying principles

established by prior decisions to the particular facts

involved." Id. at 176.

"the difficulty inherent in any attempt to interpret a
disposition without an opinion").

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In ascertaining the "reach and content" of the

Court's summary dismissal in MSTA, we may not rely solely

upon the reasoning of the Maine Law Court. Id. ("Because a

summary affirmance is an affirmance of the judgment only, the

rationale of the affirmance may not be gleaned solely from

the opinion below."); accord Anderson v. Celebrezze, 460 U.S.

780, 785 n.5 (1983); Fusari, 419 U.S. at 391-92 (Burger,

C.J., concurring). Instead, we should examine the

jurisdictional statement filed in the Supreme Court of the

United States and any other relevant aid to construction in

order to ascertain what issues were "presented and

necessarily decided" by the Court's summary dismissal.12

Examining the MSTA jurisdictional statement,

together with the accompanying papers filed with the Supreme

Court and the opinions of the lower courts, we conclude that

appellants in MSTA specifically presented the issue of facial

overbreadth, including whether the Act was broader than

justified by the underlying state interest, to the Supreme

Court. We think the Court was obliged to have considered and

12. Besides contesting whether the current case presents the
same issues that were involved in MSTA, plaintiffs contend

that the facts in the instant case and MSTA are very

different; that MSTA deviated from established constitutional

principles and broke new ground; and that doctrinal
developments have undercut the precedential value of MSTA.

Like the district court in Auburn I, we find these three

contentions lack merit. 756 F. Supp. at 614. Unlike the
court in Auburn I, however, we also conclude that MSTA is

entitled to binding precedential value on the issue of
substantial overbreadth.

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to have rejected this issue as a predicate to its dismissing

of the appeal for want of a substantial federal question.

The issue of so-called underinclusiveness, however, does not

so clearly appear in the papers, and later changes in the Act

further erode the present bearing of MSTA on that topic.

Therefore, the dismissal in MSTA is binding upon us as to

overbreadth, but is not binding as to underinclusiveness, nor

binding as to certain "as applied" issues the plaintiffs have

raised. We turn first to overbreadth.

In the strict sense, overbreadth is a doctrine for

facially invalidating a statute that is "so broad that it

'may inhibit the constitutionally protected speech of third

parties.'" N.Y. State Club Ass'n v. New York, 487 U.S. 1, 11

(1988) (quoting Members of City Council of Los Angeles v.

Taxpayers for Vincent, 466 U.S. 789, 798 (1984)); Regan v.

Time, Inc., 468 U.S. 641, 651 n.7 (1984). There must be "a

realistic danger that the statute itself will significantly

compromise recognized First Amendment protections of parties

not before the Court." Id. (quoting Taxpayers for Vincent,

466 U.S. at 801). The overbreadth "must not only be real,

but substantial as well, judged in relation to the statute's

plainly legitimate sweep." New York v. Ferber, 458 U.S. 747,

770 (1982).

Plaintiffs argue that the Act is overbroad in this

classic sense. For example, without themselves necessarily

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wishing to engage in such conduct, they note that solicitors

may wish to put out unattended collection boxes to receive

police donations. This, they say, would be noncoercive,

since no one would know who donated or did not donate, yet

the Act would prohibit it. Similarly, plaintiffs point out

that hypothetical private citizens, unconnected with the

police, are prevented by the Act from soliciting donations to

law enforcement from friends for instance, from

voluntarily soliciting funds to buy a new cruiser for a local

department. This, too, is said to be an example of how the

Act sweeps too broadly, prohibiting protected conduct by

third parties.13

Classic overbreadth, however, was an argument

specifically presented to the Supreme Court in the MSTA

appeal and necessarily rejected by its dismissal of that

appeal for want of a substantial federal question.

13. One can also hypothesize, for purposes of overbreadth
analysis, other arguably unconstitutional applications of the
Act. For example, the Act might be construed to prevent
private citizens from asking for money to lobby for a bill
that raises police salaries. However, because the Act's
prohibition runs only against fundraising for the "tangible"
benefit of law enforcement, the Maine courts might well
reject any such interpretation. Speculative readings like
this would seem best decided, if ever sought to be enforced,
in an "as-applied" lawsuit, rather than hypothesized in
advance for purposes of facial overbreadth analysis. In any
case, as discussed infra, we consider the issue of facial

overbreadth to be foreclosed by the Supreme Court's summary
dismissal of the MSTA appeal.

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When so dismissing, the Supreme Court had before

it, both in M.S.T.A.'s jurisdictional statement and in its

notice of appeal, appellants' explicit contention that the

Act was overbroad. And, as noted supra, the Law Court's

underlying opinion from which appeal was being taken had

specifically discussed and rejected overbreadth as a ground

for invalidating the Act.

It is true that in first describing the questions

presented on appeal, M.S.T.A.'s jurisdictional statement

after setting out the terms of the Act defined the

question only as whether or not the Act "violates the First

and Fourteenth Amendments to the United States Constitution."

Later, however, under the heading of "Stated Reasons for

Plenary Consideration," the jurisdictional statement urged

upon the Court the desirability of its being able to question

counsel as to "the overbreadth doctrine." In a footnote

appended to that suggestion, M.S.T.A. stated,

"From the outset, appellant has asserted
the overbreadth doctrine of NAACP v.

Button, 371 U.S. 415 (1963)."

In NAACP, the Court had stated, among other comments relevant

to overbreadth, "Furthermore, the instant decree may be

invalid if it prohibits privileged exercises of First

Amendment rights whether or not the record disclosed that the

petitioner has engaged in privileged conduct." Id. at 432.

-22-

That overbreadth was specifically presented to, and

rejected by, the Supreme Court is underscored by M.S.T.A.'s

statement in its notice of appeal to the Supreme Court that

appeal was taken from the portion of the Law Court's decision

that "the statute in question is not overbroad." We find,

therefore, that in denying the MSTA appeal, the Supreme Court

was expressly presented with, and must therefore have

rejected, the argument that the Act was unconstitutional

under the First Amendment because of overbreadth.

We think the Court's rejection of overbreadth

subsumed, besides the "classic" overbreadth described above,

another common variety of facial overbreadth claim. The term

"overbreadth" is used in First Amendment contexts not only to

invalidate statutes that are so broad as to inhibit the

constitutionally protected speech of third parties, supra,

but to facially invalidate statutes that inhibit free speech

and are unsupported by a sufficiently compelling state

interest or are not tailored narrowly to such an interest.

See Secretary of Maryland v. Joseph H. Munson Co., 467 U.S.

947, 965-66 n.13 (1984) ("where the defect in the statute is

that the means chosen to accomplish the state's objectives

are too imprecise, so that in all its applications the

statute creates an unnecessary risk of chilling free speech,

the statute is properly subject to facial attack."); see also

-23-

N.Y. State Club Ass'n, 487 U.S. at 11; Schaumberg, 444 U.S.

at 639, Taxpayers for Vincent, 466 U.S. at 797.

Any present claim of facial invalidity based on a

purported absence of compelling state interest in prohibiting

public solicitation for the tangible benefit of law

enforcement officers and agencies seems to us to be precluded

by the Supreme Court's dismissal of M.S.T.A.'s appeal.14

Similarly, a facial invalidity claim based on an alleged lack

of narrow tailoring is likewise precluded. We so conclude

not alone from the Law Court's own ruling in MSTA, which

expressly found both a compelling state interest and the

requisite narrow tailoring, but from express language in the

jurisdictional statement submitted by M.S.T.A. when appealing

to the Supreme Court from the Law Court's ruling. In that

statement, as already noted, the terms of the challenged Act

were set forth and an appeal on First and Fourteenth

Amendment grounds noted. M.S.T.A. then went on to complain

that the Law Court had held that the Act "in fact interferes

with First Amendment freedoms, but that compelling state

interests exist which permit the interference." M.S.T.A.

characterized the Law Court's version of the compelling

interest as "the interest of the State in the image of its

14. As later sections of this opinion demonstrate, we do not
regard the Court's denial of appeal in MSTA as barring our

consideration of claims attacking the sufficiency of the
State's compelling interest based on underinclusiveness
(equal protection) grounds.

-24-

law enforcement officers" and as "an intangible harm" allowed

in the Law Court to "deprive law enforcement associations,

and others, of protected First Amendment rights." M.S.T.A.

urged summary reversal because the "Law Court, absent any

evidence of actual or perceived coercion, apparently assumed

the compelling state interest into existence based upon

comments in the legislative history of the Act." M.S.T.A.

urged the Supreme Court if unwilling to reverse the Law

Court summarily to question counsel as to "the broad sweep

of the State's alleged compelling interest, together with the

appellant's assertion of the 'overbreadth doctrine.'" These

statements were prefaced by mention of the trial court's

finding that appellants had not engaged "in any form of

coercion or otherwise used their official position to solicit

advertising," a comment supportive of other remarks that the

Law Court had rested the State's compelling interest solely

on a need to conserve the "image" of its law enforcement

officers.

We think the above statements necessarily alerted

the Supreme Court to a claim of "overbreadth" based on the

notion that the Act's burdens on speech went beyond any truly

compelling state interest.

The challenged language of the present Act is

virtually identical in all material respects to the statute

found to be constitutional in MSTA. The key difference

-25-

between the current version of the Act, Me. Rev. Stat. Ann.

tit. 25, 3702-A, and the prior version of the Act, Me. Rev.

Stat. Ann. tit. 25, 3702, is that the current version now

provides that the prohibition on solicitation applies only

when solicitation "tangibly" benefits any law enforcement

officer, agency or association. This clarifies that police

solicitation for charitable causes unrelated to law

enforcement is not barred. Arguably, under the old statute

such solicitation was barred because it intangibly benefited

law enforcement by providing good will. Even assuming,

however, that the addition of the word "tangible" to modify

"benefits" in the present version worked a substantive change

in the law, that change only narrowed the breadth of the

Act's prohibition. Because 3702-A is even narrower than

the former 3702, the Supreme Court's summary dismissal of

MSTA, in which the Supreme Court necessarily rejected the

overbreadth and compelling interest challenges described

above, is binding precedent on whether 3702-A is overbroad

in the senses just discussed. See Glen Theatre, Inc. v.

Pearson, 802 F.2d 287, 290 (7th Cir. 1986) (if issue of

overbreadth is raised in jurisdictional statement, Supreme

Court's summary affirmance binds lower courts on that issue).

C. Underinclusiveness

-26-

While the MSTA appeal foreclosed present

overbreadth claims, appellants raise other claims which in

our view, the appeal has not foreclosed. We turn to these.

Facial First Amendment challenge is allowed to

statutes burdening speech that are so grossly underinclusive

as to cast doubt on the compelling nature of the state's

asserted interest. See R.A.V., 112 S. Ct. at 2547 (facially

invalidating ordinance that applied only to "fighting words"

that provoke violence "on the basis of race, color, creed,

religion or gender."); Florida Star v. B.J.F., 491 U.S. 524,

541-42 (1989) (Scalia, J., concurring) ("a law cannot be

regarded as protecting an interest 'of the highest order,'

and thus justifying a restriction on truthful speech, when it

leaves appreciable damage to that supposedly vital interest

unprohibited."); FCC v. League of Women Voters, 468 U.S. 364,

396 (1984) ("patent . . . underinclusiveness . . . undermines

the likelihood of a genuine [governmental] interest").15

As already discussed, the jurisdictional statement

in MSTA required the Supreme Court to consider whether the

15. A statute's underinclusiveness also indicates that the
government is not, in fact, serving the proffered compelling
interest. Florida Star, 491 U.S. at 540 ("facial

underinclusiveness of [statute] raises serious doubts about
whether Florida is, in fact, serving, with this statute, the
significant interests which [the State] invokes"); Women

Voters, 468 U.S. at 396 (because statute is underinclusive,

it "provides only ineffective or remote support for the
government's purpose"); Carey v. Brown, 447 U.S. 455, 465

(1980) ("nothing in the content-based labor-nonlabor
distinction has any bearing whatsoever on privacy").

-27-

Maine Act was supported by a compelling state interest.

Plaintiffs in the present case, however, assert that even if

the version of the Maine Act upheld by the Maine Law Court in

MSTA was supported by a compelling state interest, the

Supreme Court's summary dismissal of MSTA is no longer

binding precedent because the Maine Legislature has enacted

and has later repealed or let expire, various exceptions to

the Act's prohibition on solicitation that benefits law

enforcement. According to plaintiffs, the Legislature's

former enactment of these now-defunct exceptions permanently

undermined the Act's compelling interest.16 We disagree.

We know of no precedent for invalidating a statute based on

repealed exceptions: the Maine legislature, having restored

the statute something close to its original form, is entitled

to the same respect afforded to its original judgment.

While we reject plaintiffs' assertion that repealed

exceptions to the Act prevent Maine from ever again having a

compelling interest in prohibiting solicitation beneficial to

law enforcement, we take more seriously plaintiffs' further

contention that extant exceptions to the Act undermine the

State's assertion of a compelling state interest. Plaintiffs

identify three such exceptions, said to make the Act

unconstitutionally underinclusive: (1) The Act permits

16. As the magistrate judge wrote in his Recommended
Decision: "the proverbial egg cannot be unscrambled."

-28-

solicitations that intangibly benefit the police, e.g.,

solicitations by police officers for a public charity; (2)

the Act permits solicitations that benefit state officials

other than law enforcement officers; and (3) The Act permits

solicitations on behalf of law enforcement officers

campaigning for public office. While the latter distinctions

were present in the statute upheld in MSTA, the issue of the

Act's alleged underinclusiveness and its effect on the

compelling state interest supporting the Act were not raised

in either the Maine courts or in the jurisdictional statement

to the Supreme Court.17 Because the issue of the Act's

purported underinclusiveness was not presented to the Supreme

Court in MSTA, the Supreme Court's summary dismissal of that

case is not binding precedent on this issue. See Illinois

State Bd. of Elections, 440 U.S. at 183 ("Questions which

merely lurk in the record are not resolved, and no resolution

of them may be inferred.") (internal quotation omitted).

The State contends that the Act's purported

underinclusiveness does not render it unconstitutional. The

State relies, as did the district court, on the Hatch Act

cases, see, e.g., United States Civil Serv. Comm'n v.

17. While the Maine Law Court in MSTA did consider the

repealed Act's exception for game wardens, finding no
justification for differentiating in treatment between
M.S.T.A. and the game wardens, the statutory exceptions
challenged by plaintiffs here either were not yet enacted
when the Supreme Court summarily dismissed MSTA, or were not

challenged in that case.

-29-

National Ass'n of Letter Carriers, 413 U.S. 548, 556 (1973);

United Pub. Workers v. Mitchell, 330 U.S. 75, 100 (1947), for

the proposition that a legislature need not address an entire

social problem at one time. In the Hatch Act cases, the

Supreme Court upheld restrictions on partisan political

activity by civil servants even though other types of

political activity were not similarly restricted. But, while

helpful to some degree, the Hatch Act cases are not on all

fours. The Hatch Act cases rest upon the notion that the

government has special rights to restrict partisan political

speech of its employees and on its property. Women Voters,

468 U.S. at 401 n.27; see International Soc. for Krishna

Consciousness, Inc. v. Lee, 112 S. Ct. 2701, 2705 ("Where the

government is acting as a proprietor, managing its internal

operations, rather than acting as a lawmaker with power to

regulate or license, its action will not be subjected to the

heightened review to which its actions as a lawmaker may be

subject."). The Hatch Act cases are inapplicable to the

question of whether a statute is unconstitutionally

underinclusive when that statute, like the Maine Act at issue

here, restricts the speech of the general citizenry as well

as that of public employees.

When a content-based regulation restricts both the

speech of public employees and the general citizenry, it

"simply cannot be defended on the ground that partial

-30-

prohibitions may effect partial relief." Florida Star, 491

U.S. at 540. The Supreme Court explained why a statute's

content-based underinclusiveness is objectionable when First

Amendment rights are at stake, in Erznoznik v. Jacksonville,

422 U.S. 205 (1975):

This Court frequently has upheld
underinclusive classifications on the sound theory
that a legislature may deal with one part of a
problem without addressing all of it. See, e.g.,

Williamson v. Lee Optical Co., 348 U.S. 483, 488-

489 (1955). This presumption of statutory
validity, however, has less force when a
classification turns on the subject matter of
expression. "[A]bove all else, the First Amendment
means that government has no power to restrict
expression because of its message, its ideas, its
subject matter, or its content." Police Dept. of

Chicago v. Mosley, 408 U.S., at 95. Thus, "under

the Equal Protection Clause, not to mention the
First Amendment itself," id., at 96, even a traffic

regulation cannot discriminate on the basis of
content unless there are clear reasons for the
distinctions.

Id. at 215.

In order to avoid the conclusion under either the

Equal Protection Clause or the First Amendment18 that the

18. When reviewing content-based distinctions, the Supreme
Court has not differentiated the Equal Protection Clause from
the First Amendment. R.A.V., 112 S. Ct. at 2544 n.4 ("This

Court . . . has occasionally fused the First Amendment into
the Equal Protection Clause"); Burson, 112 S. Ct. at 1850-52

n.3 ("Under either a free-speech or equal-protection theory,
a content-based regulation of political speech in a public
forum is valid only if it can survive strict scrutiny.");
Erznoznik, 422 U.S. at 215 (holding that under either the

First Amendment or the Equal Protection Clause, there must be
"clear reasons" for content-based distinctions); Mosley, 408

U.S. 92, 95 (1972) ("Of course, the equal protection claim in
this case is closely intertwined with First Amendment
interests."); Harwin v. Goleta Water Dist., 953 F.2d 488, 490

-31-

Maine Act is unconstitutionally underinclusive, the State

must be able to point to clear reasons for the distinctions

drawn by the Act. See Austin v. Michigan State Chamber of

Commerce, 494 U.S. 652, 666 (1990) (the press's "unique

societal role" provides a "compelling reason for the state to

exempt media corporations from the scope of political

expenditure limitations"); Mosley, 408 U.S. at 100 (ordinance

prohibiting all peaceful picketing other than labor picketing

is unconstitutional absent showing that the former is

"clearly more disruptive"); see also Cincinnati v. Discovery

Network, Inc., 113 S. Ct. 1505, 1524 (1993) (Rehnquist, C.J.,

dissenting) (in noncommercial speech cases, the Court has

refused to accept distinctions between restricted and

nonrestricted speech when those distinctions bear "no

relationship to the interests asserted for regulating the

speech in the first place"); Fantasy Book Shop, Inc. v. City

of Boston, 652 F.2d 1115, 1121 n.6 (1st Cir. 1981) (rejecting

challenge of facial underinclusiveness because "legislature

could reasonably conclude that non-commercial amusements

present sufficiently less likelihood of the harms sought to

n.3 (9th Cir. 1991) ("Under either [equal protection or first
amendment] analysis, . . . independent justification of the
discrimination is required."); News America Pub. v. FCC, 844

F.2d 800, 804 (D.C. Cir. 1988) (claim of underinclusiveness
"lies at the intersection of the First Amendment's protection
of free speech and the Equal Protection Clause's requirement
that government afford similar treatment to similarly
situated persons").

-32-

be prevented to justify their differential treatment"). The

State's justifications for the Act's differential treatment

must be "carefully scrutinized." Carey, 447 U.S. at 461-62.

Although the case at hand is close, we believe the State has

articulated satisfactory explanations for the Act's

differential treatment.

To justify the "exception" in 3702-A permitting

solicitations that only intangibly benefit the police, the

State relies principally upon the following statement of

legislative intent included in the 1991 amendments to the

Act:

The Legislature . . . finds that
solicitations [by police] for charitable
purposes unrelated to law enforcement
activities are not inherently coercive
because the person solicited will know
that law enforcement agencies or officers
do not gain any tangible benefit and,
consequently, will not be concerned with
who donates.

Priv. & Spec. Laws 1991, Ch. 510, 5. We find this to be a

supportable basis for the distinction. It is true that the

State has provided no purported empirical evidence to back up

that finding.19 The district court, in upholding the

19. Plaintiffs contend that by simply asserting without
empirical evidence that solicitations tangibly benefiting
police are inherently coercive, the State has:

taken the effect of the statute and posited that

effect as the State's interest. If accepted, this
sort of circular defense can sidestep judicial
review of almost any statute, because it makes all
statutes look narrowly tailored. . . . "Every

-33-

constitutionality of the Act, stated that it would overlook

the lack of empirical evidence and defer to the "legislative

premise that these types of fundraising are different," since

whether there is as much coercion in solicitations for

charitable causes as for law enforcement purposes is a matter

"on which reasonable minds may differ."

We agree that the lack of empirical evidence is not

fatal. See Burson, 112 S. Ct. at 1856 (noting the difficulty

of "isolat[ing] the exact effect of [laws restricting certain

speech at polling places] on voter intimidation and election

fraud" and suggesting that "[s]uccessful voter intimidation

and election fraud is successful precisely because it is

difficult to detect"); Frisby v. Schultz, 487 U.S. 434, 486

content-based discrimination could be upheld by
simply observing that the State is anxious to
regulate the designated speech."

Simon & Schuster, 112 S. Ct. at 510 (quoting Simon &

Schuster, Inc. v. Fischetti, 916 F.2d 777, 785 (2d Cir. 1990)

(Newman, J., dissenting)).
Plaintiffs' reliance on Simon & Schuster is misplaced.

In that case, New York argued that its Son-of-Sam law was
supported by a compelling interest because it "ensur[ed] that
criminals do not profit from story-telling about their crimes
before their victims have a meaningful opportunity to be
compensated for their injuries." The Court rejected New
York's argument that this narrow interest was compelling
because the State could not explain why it "should have any
greater interest in compensating victims from the proceeds of
such 'storytelling' than from any of the criminal's other
assets." Id. By contrast, the State of Maine can and does

explain why solicitations by police personnel for charitable
purposes unrelated to law enforcement are not as inherently
coercive as solicitations that tangibly benefit law
enforcement officers, agencies or associations.

-34-

(1988) (noting that targeted residential picketing is

"inherently" intrusive of residential property). While the

Supreme Court has occasionally cited the lack of empirical

evidence as a further ground for striking down a restriction

on speech, see, e.g., Peel v. Attorney Registration &

Disciplinary Comm'n, 496 U.S. 91, 106 (1990) (plurality)

("Given the complete absence of any evidence of deception,"

Court rejects state's contention that attorney's advertising

was actually misleading), the Court has never laid down a

categorical rule requiring that empirical evidence be shown

to support every statutory restriction on speech.20 A

categorical requirement would be unwise, we think, given the

difficulty of securing definitive empirical evidence for

unquantifiable issues of this sort.

The Maine Legislature's conclusion seems

intuitively reasonable that solicitations even when made

by law enforcement personnel for charitable purposes

unrelated to law enforcement are not as inherently coercive

as solicitations that tangibly benefit law enforcement

officers, agencies or associations. Persons approached to

contribute funds for the tangible benefit of law enforcement

personnel, agencies or associations might well believe that

20. The Court has, however, required "substantial support in
the record or findings" when "rights of political expression
and association" are concerned. E.g., In re Primus, 436 U.S.

412, 434 n.8 (1978).

-35-

the officers would be more deeply offended by a refusal than

by rejection of officers' requests for a donation to a

charity entirely unrelated to law enforcement. The

Legislature "could reasonably conclude that [charitable

solicitations] present sufficiently less likelihood of the

harms sought to be prevented to justify their differential

treatment." See Fantasy Book Shop, Inc., 652 F.2d at 1121

n.6.

Plaintiffs' contention with respect to the Act's

distinction between law enforcement officials and other types

of public servants fares no better. The police occupy a

unique role. They are empowered to enforce a wide array of

criminal laws and to protect the property and lives of the

general citizenry. To do this they are armed, given enhanced

arrest powers, and given access to information networks and

other tools denied to most citizens. Police necessarily have

considerable on-the-spot authority of a discretionary sort

whether to give or withhold a traffic ticket, to make an

arrest, or to notice or disregard a violation. While even-

handed treatment is the ideal, officers may, and sometimes

do, enforce laws in a less than neutral manner. For this

reason, citizens and local businesses will try to stay on the

good side of police, fearing whether or not correctly

that a miffed police officer and his associates will

retaliate, or will turn their backs when most needed. Hence,

-36-

the Maine Legislature could reasonably conclude that police

solicitation has a special potential for coercion not present

in solicitation by other officials.

Plaintiffs' third example of the Act's purported

underinclusiveness the exception for solicitations on

behalf of law enforcement officers running for public office

is also unavailing. As the district court properly

recognized, law enforcement officers who run for electoral

office, primarily county sheriffs, themselves have separate

First Amendment interests. See Burson, 112 S. Ct. at 1850

("'the First Amendment 'has its fullest and most urgent

application' to speech uttered during a campaign for

political office'") (quoting Eu v. San Francisco Democratic

Comm., 489 U.S. 214, 223 (1989) (quoting Monitor Patriot Co.

v. Roy, 401 U.S. 265, 272 (1971))). A rule prohibiting

"campaign fundraising by law enforcement personnel would

effectively disqualify them from an office such as sheriff

for, unless they were independently wealthy, they could

easily be outspent by opponents who were not in law

enforcement." Auburn II, 798 F. Supp. at 827. We,

therefore, agree with the district court that the First

Amendment right of law enforcement officers to engage in

campaign speech provides a substantial justification for the

Act's exemption of such speech from its prohibition on

-37-

solicitation.21 See Austin, 494 U.S. at 668 (media

exemption from prohibition on corporations using general

treasury funds to support state candidate elections "ensures

that the Act does not hinder or prevent the institutional

press from reporting on, and publishing editorials about,

newsworthy events").

As the State can furnish "clear reasons" for the

asserted exemptions from the Act's prohibitions, and the

reasons are not only clear but rational, we hold that the

Maine Act is not unconstitutionally underinclusive.

D. As Applied Challenge

Plaintiffs argue that the Act is unconstitutional

as applied to the activities of plaintiff R.H. McKnight Co.,

a professional fundraiser and publisher of law enforcement

21. To the extent that coercion is caused by police
solicitations for campaign fundraising, the State has
attempted to minimize it by imposing certain restrictions on
such solicitations. For example, Me. Rev. Stat. Ann. tit.
25, 3711 prohibits solicitations by law enforcement
officers while in uniform. Section 3712 prohibits any law
enforcement officer running for a nonpartisan public office
from soliciting on his own behalf. Me. Rev. Stat. Ann. tit.
25, 3712. Section 3713 prohibits the use of coercion in
solicitations. Me. Rev. Stat. Ann. tit. 25, 3713. Section
3714 makes a violation of these restrictions a Class E crime.
Me. Rev. Stat. Ann. tit. 25, 3714. Other restrictions on
law enforcement officers running for elective office are
contained in statute, union contracts and departmental
regulations. See Me. Rev. Stat. Ann. tit. 30-A, 355

(Pamph. 1991) (regulating political activity of sheriffs and
deputy sheriffs). Together, these restrictions serve as an
effective accommodation of the First Amendment right of the
police to engage in political speech with the State's
interest in preventing coercion inherent in police
solicitation.

-38-

magazines; plaintiff Charles Underwood, a private citizen who

wishes to advertise in such magazines;22 and the plaintiff

law enforcement association which wishes to disseminate the

magazines.23 Plaintiffs contend that the sale of

advertising in law enforcement publications like the "Maine

State Trooper" is a noncoercive undertaking. Plaintiffs

point specifically to the allegedly noncoercive nature of the

system of solicitation designed by R.H. McKnight Co., in

which telephone solicitors supposedly make it clear that they

are not police officers, and the names of persons who do not

purchase advertisements are not directly released to the

sponsoring law enforcement organization.24

22. We note that plaintiff Underwood can raise no "as
applied" challenge with regard to his right to advertise in
the police magazines, as the statute does not prohibit him
from advertising but from being solicited to advertise. As

such, his claim is rightly considered along with those of
plaintiff R.H. McKnight Co. and the plaintiff law enforcement
association.

23. It is debatable whether plaintiffs can bring an as-
applied challenge in the context of a pre-enforcement
declaratory judgment action. See United States v. Gaudreau,

860 F.2d 357, 360-61 (10th Cir. 1988) ("In a declaratory
judgment action no one has been charged so the court cannot
evaluate the statute as applied."). Rather than embark upon
technicalities, however, we prefer to consider their
arguments on the merits.

24. A sample script utilized by R.H. McKnight telephone
solicitors states the following:

AUBURN CONSENT FORM/SALES PRESENTATION

-39-

Hello, . This is calling
on behalf of the Auburn Police I.B.P.O. 414.
I am working for the publishing company, and,
as you may already know, we are going to be
producing the Auburn Police I.B.P.O. # 414
Yearbook. This Yearbook will be of the highest
quality with a full 8 1/2 x 11, four-color cover,
and will contain pictures of the officers in action
here in Auburn as well as articles of interest to
the general public.
We anticipate that our publication will be the
best in the Auburn-Lewiston area. We will be
producing 750 copies of our publication and giving
them out free of charge to the public, libraries or
business friends, as well as the officers of
Auburn. Funds derived from the sale of advertising
will go to scholarship fund (sic), as well as to
improve law enforcement and the working conditions
of the officers right here in Auburn.
May I tell you the advertising prices?

In addition, each telephone solicitor must sign the
following agreement before calling on behalf of a police
organization:

CONSENT

I agree to adhere to the above sales
presentation for the Auburn Police International
Brotherhood of Police Officers Local # 414. I will

not state or imply that I am an Auburn Police

Officer -- only that I am calling on behalf of:
(sic) and that I work for the publishing company.

Affidavit of R.H. McKnight, Appendix 1.

Finally, although the names of those who do not purchase
advertising are not directly disclosed to the police
organization, a disclosure and thank you is mailed to each
advertiser in the name of the police organization:

Please make your check payable to the Auburn Police
I.B.P.O. Local # 414 and send with your ad copy,
letterhead, or business card to: P.O. Box 3291,
Auburn, Maine 04212. The International
Brotherhood of Police Officers Local # 414 is a
non-profit organization, not a charitable
organization. Therefore, your payment can be

-40-

Contrary to plaintiffs' view, we think the Maine

Legislature could believe that solicitation of advertisements

to benefit law enforcement is inherently coercive because the

persons solicited will experience pressure to purchase an

advertisement so that their support of law enforcement will

become known to police or so that their failure to buy an

advertisement will not be noticed. The Legislature could

reasonably doubt that the solicitations would become

noncoercive merely because the names of those who do not

purchase advertisements were promised not to be disclosed to

the police. The advertisements will be public. Accordingly,

law enforcement officers will be aware of who contributed

and, by the absence of advertisements, of who did not

contribute. Moreover, those solicited may not believe, even

if they are assured, that their names will not be

communicated. The Law Court in MSTA was of the view that,

quite apart from actual coercion, the state's legitimate

interest included maintaining the good public reputation of

deducted as an advertising expense only. Thank you
for your support. With your help we are able to go
forward. The telephone call you received was from
a representative of the publishing company and not
a member of the Police Department. Officers do not
elect to solicit as it may unduly influence your
decision. If you have any questions, please don't
hesitate to ask.

-41-

its police. We are not persuaded that plaintiffs'

alternatives would necessarily answer that concern.

Because plaintiffs' proposed solicitations remain

inherently coercive, or at least do not remove the appearance

of coercion and favoritism, we reject plaintiffs' argument

that the Act is unconstitutional as applied.

E. Prior Restraint

Any violation of the Act's prohibition on

solicitation that tangibly benefits law enforcement is

considered a violation of the Maine Unfair Trade Practices

Act. Me. Rev. Stat. tit. 25, 3702-A. The Act, therefore,

can be enforced either through civil penalties or injunctive

relief. Finding that enforcement of the Act through

injunctive relief would constitute an impermissible prior

restraint, the district court declared the injunctive relief

provision of the Act to be unconstitutional.25 While the

25. Plaintiffs actually argued to the district court, and to
this court, that the Act's categorical prohibition on
solicitation, in and of itself, constitutes an
unconstitutional prior restraint. According to plaintiffs,
the Act constitutes a prior restraint because it "silences by
fiat an entire category of charitable solicitation." Auburn

I, 756 F. Supp. at 618. In this respect, argue plaintiffs,

the Act is "a form of censorship; it prejudges rather than
punishes after the fact." Id. Plaintiffs further contend

that barring solicitation of funds is a particularly
effective prior restraint because law enforcement agencies
will not have the financial resources to spread their message
to the general public.
The district court correctly rejected plaintiffs'
arguments that the entire Act should be invalidated as a
prior restraint. Under plaintiffs' analysis, almost any
regulation of speech would be considered a prior restraint

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district court's concern that injunctions are rarely

tolerated in the First Amendment context is understandable,

we think the court acted improperly in invalidating the Act's

injunctive relief provision on its face.

A prior restraint is a government regulation that

limits or conditions in advance the exercise of protected

First Amendment activity. Fantasy Book Shop, Inc., 652 F.2d

at 1120. Although the classic form of prior restraint

involves an administrative licensing scheme, see Jews for

Jesus, Inc. v. Massachusetts Bay Transp. Auth., 984, F.2d

1319, 1326-27 (1st Cir. 1993), a judicial injunction that

prohibits speech prior to a determination that the speech is

unprotected also constitutes a prior restraint. See Near v.

Minnesota, 283 U.S. 697 (1931). Any system of prior

restraints of speech "comes to this Court bearing a heavy

presumption against its constitutional validity."

Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558

(1975); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70

(1963); New York Times Co. v. United States, 403 U.S. 713,

since most restrictions on speech will have consequences on
later speech. While the Supreme Court has cautioned that
"[b]road prophylactic rules in the area of free expression
are suspect," Riley, 487 U.S. at 801, the Court has never

said that a categorical ban on speech is a per se prior
restraint. Instead, the Court has, for the most part,
carefully limited the prior restraint doctrine to
administrative and judicial orders prohibiting speech before
it is actually uttered.

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714 (1971); Organization for a Better Austin v. Keefe, 402

U.S. 415, 419 (1971).

The presumption against the constitutionality of

prior restraints is heavier than that against restrictions on

speech imposed by subsequent penalties. Vance v. Universal

Amusement Co., 445 U.S. 308, 315-16 (1980); Southeastern

Promotions Ltd., 420 U.S. at 558-59; New York Times Co., 403

U.S. at 733 (White, J., concurring). The Supreme Court has

explained the rationale behind this heavy presumption against

prior restraints as follows:

Behind the distinction is a theory deeply
etched in our law: a free society
prefers to punish the few who abuse
rights of speech after they break the law

than to throttle them and all others
beforehand. It is always difficult to
know in advance what an individual will
say, and the line between legitimate and
illegitimate speech is often so finely
drawn that the risks of freewheeling
censorship are formidable.

Southeastern Promotions Ltd., 420 U.S. at 559.

The Supreme Court, however, "has never held that

all injunctions are impermissible." Pittsburgh Press Co. v.

Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 390

(1973). "The special vice of a prior restraint is that

communication will be suppressed, either directly or by

inducing excessive caution in the speaker, before an adequate

determination that it is unprotected by the First Amendment."

Id. An injunction that is narrowly tailored, based upon a

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continuing course of repetitive speech, and granted only

after a final adjudication on the merits that the speech is

unprotected does not constitute an unlawful prior restraint.

See id.; Securities & Exchange Comm'n v. Wall St. Publ.

Institute, Inc., 851 F.2d 365, 370 (D.C. Cir. 1988). The

Maine courts may interpret the statute or apply it so as to

avoid the issuance of ex parte restraining orders or even

temporary injunctions, using their equitable powers only

following full hearings and final adjudications.

Because plaintiffs brought this action seeking pre-

enforcement declaratory relief, there is, at present, no

injunction restraining solicitation activities. Without

having before us the concrete example of a particular

injunction, it is difficult, if not impossible, for us to

determine whether the prior restraint doctrine has or will be

violated.26 See American Library Ass'n v. Barr, 956 F.2d

26. Injunctions, in this respect, are distinguishable from
administrative licensing schemes that constitute prior
restraints. "[W]hen a licensing statute vests unbridled
discretion in a government official over whether to permit or
deny expressive activity, one who is subject to the law may
challenge it facially without the necessity of first applying
for, and being denied, a license." Lakewood v. Plain Dealer

Pub. Co., 486 U.S. 750, 755-56 (1988); see, e.g., FW/PBS,

Inc. v. Dallas, 493 U.S. 215 (1990); Freedman v. Maryland,

380 U.S. 51, 56 (1965). In such cases, it is the very
existence of unbridled discretion that is constitutionally
unacceptable because it "intimidates parties into censoring
their own speech, even if the discretion and power are never
actually abused." Lakewood, 486 U.S. at 756. By contrast,

the statutory authority to issue an injunction does not
create the same danger.

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1178, 1190 (D.C. Cir. 1992) ("Whether use forfeiture

constituted a restraint on speech, prior or otherwise, would

seem to depend on the nature of the property and the

circumstances of the offender, about which we have no

information in this case."). We choose to let stand the

Act's provision authorizing enforcement through injunctive

relief and leave for another day the determination whether a

specific injunction should the State decide to proceed in

such a fashion constitutes an unlawful prior restraint.

III.

We hold that Maine's Solicitation by Law

Enforcement Officers Act, Me. Rev. Stat. Ann. tit. 25,

3702-A, does not violate the First or the Fourteenth

Amendments of the United States Constitution. The district

court's determination that Me. Rev. Stat. Ann. tit. 25,

3702-A is not unconstitutionally overbroad or underinclusive

is affirmed. The court's declaration that the Act's

provision for enforcement through injunctive relief is

unconstitutional is reversed.

Costs to the State of Maine.

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APPENDIX

STATE OF MAINE

An Act to Amend the Laws Concerning Solicitation by
Law Enforcement Officers

Be it enacted by the People of the State of Maine as follows:

. . . .

Sec. 5. Legislative intent. It is the intent of
Sec. 5. Legislative intent.

the Legislature to repeal all exceptions to the prohibition

against solicitation by law enforcement agencies, officers

and associations. The Legislature finds that the various

exceptions to the prohibition enacted over the years, in

fact, have led to inherently coercive solicitations and that

those exceptions ultimately undermine the integrity of law

enforcement. As a consequence, the Legislature repeals these

exceptions and reenacts the prohibition on solicitations by

or on behalf of law enforcement. The Legislature further

finds that solicitations for charitable purposes unrelated to

law enforcement activities are not inherently coercive

because the person solicited will know that law enforcement

agencies or officers do not gain any tangible benefit and,

consequently will not be concerned with who donates. This

Act clarifies and reaffirms that the primary and compelling

purpose underlying the laws governing solicitation by law

enforcement officers is to eliminate the coercion that is

inherent in solicitations by and on behalf of law enforcement

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officers by prohibiting such solicitations. When a law

enforcement officer solicits from a prospective donor, the

donor may not feel totally free to reject the request in

light of the officer's position. This occurs regardless of

the subjective intent of the officer to coerce the

prospective donor. In addition to the effect on the

prospective donor, the appearance of the transaction to 3rd

persons may undermine public confidence in the integrity of

the public office. At least the appearance of coercion

inheres in every solicitation that tangibly benefits law

enforcement agents and the appearance undermines the

integrity of the office. The Legislature finds that the

State has a compelling interest in preserving the integrity

of law enforcement officers and finds that regulating all law

enforcement solicitations that tangibly benefit law

enforcement is necessary to promote this compelling state

interest.

[Priv. & Spec. Laws 1991, Ch. 510.]

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