In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1986
G IRL S COUTS OF M ANITOU C OUNCIL, INC.,
Plaintiff-Appellant,
v.
G IRL S COUTS OF THE U NITED S TATES OF A MERICA, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 08-cv-184-JPS—J.P. Stadtmueller, Judge.
A RGUED M AY 2, 2011—D ECIDED M AY 31, 2011
Before P OSNER, K ANNE, and T INDER, Circuit Judges.
P OSNER, Circuit Judge. This diversity suit pits a local
Girl Scouts “council” (“local Girl Scouts chapter” would
be a more illuminating designation), which we’ll call
Manitou, located in Wisconsin, against the national Girl
Scouts organization. Manitou accuses the national organi-
zation of violating the Wisconsin Fair Dealership Law,
Wis. Stat. ch. 135, along with Wisconsin common law
principles that we can ignore.
2 No. 10-1986
In 2004 there were more than 300 local councils (there
are nearly three million Girl Scouts), each with an
exclusive territory demarcated in its charter. The local
councils and the national organization are organized as
nonprofit corporations. The councils are not subsidiaries
of the national organization; rather, the national organiza-
tion (which was founded in 1912 and incorporated in
1950 by Act of Congress, 36 U.S.C. §§ 80301 et seq.) relates
to the councils as franchisor to franchisee. It “charters”
(that is, licenses) the local councils, thereby authorizing
them to sell cookies and other merchandise under the
“Girl Scout” trademark, which the national organization
owns. The Manitou council derives about two-thirds of
its income from the sale of Girl Scout cookies and mer-
chandise, with cookies generating the lion’s share of that
income. The other third comes from charitable donations,
fees generated by Girl Scout camps owned and operated
by the council, and investments. The local council remits
to the national organization the membership fees paid by
the Girl Scouts enrolled by the council, or by their parents.
The national organization decided that 300 councils
were too many. It wanted to shrink the number by two-
thirds. As part of the rearrangement of boundaries
incident to the shrinkage (which the national organization
calls “realignment”), Manitou, whose territory occupies
a large irregular slice of eastern Wisconsin, was slated to
be dissolved. Sixty percent of its territory would be
given to a new council that would occupy much of north-
ern Wisconsin and Michigan’s Upper Peninsula and the
other 40 percent would be divided between two other
new councils, in southern Wisconsin.
No. 10-1986 3
Manitou sued to enjoin the national organization from
taking away its territory (which would not put it out
of business, but would preclude its representing itself as
a Girl Scouts organization or otherwise using Girl Scout
trademarks). It argued that it was a dealer and that the
national organization’s action violated Wisconsin’s fair-
dealership law. It sought a preliminary injunction, lost
in the district court, but appealed and won in our court.
549 F.3d 1079 (7th Cir. 2007). The further proceedings
in the district court resulted in the grant of summary
judgment to the national organization and the denial of
Manitou’s motion for summary judgment, and Manitou
again appeals. The preliminary injunction was dissolved
when the case was dismissed, but, as far as we know,
the national organization is making no attempt to imple-
ment the realignment in Wisconsin pending the out-
come of this appeal.
The district judge reasoned that to apply the Wis-
consin Fair Dealership Law to the national organization
would violate the organization’s freedom of expression,
guaranteed by the First Amendment. According to its
congressionally granted charter, the national organization
seeks “to promote the qualities of truth, loyalty, helpful-
ness, friendliness, courtesy, purity,” and other virtues
and (a bit redundantly) instill “the highest ideals of
character, patriotism, conduct, and attainment.” 36 U.S.C.
§§ 80302(1), (3). We are not told exactly how it seeks to
do these things but we do not understand Manitou to
be denying that the national organization’s activities
include protected expression and that it licenses local
councils such as Manitou to assist in that expressive
4 No. 10-1986
activity. The Supreme Court has held that the Boy Scouts
are an expressive association, Boy Scouts of America v.
Dale, 530 U.S. 640, 653-56 (2000); cf. Hurley v. Irish-American
Gay, Lesbian & Bisexual Group of Boston, Inc., 515 U.S.
557, 573-75 (1995), and no reason is suggested for distin-
guishing between them and the Girl Scouts.
So Wisconsin could not, without violating the Con-
stitution, require the national organization to promote
different values in Wisconsin, or even (we may assume,
without deciding) require it to admit boys to Girl Scout
troops in the state. The qualities that the organization
wants to instill in girls are not necessarily those that
it would want to instill in boys. Boy Scouts of America
emphasizes, along with virtues similar to those urged
by the Girl Scouts, bravery and physical strength. “Over-
view of Boy Scouts of America,” http://scouting.org/About/
FactSheets/OverviewofBSA.aspx (visited May 15, 2011);
Boy Scouts of America v. Dale, supra, 530 U.S. at 649; cf.
Hurley v. Irish-American Gay, Lesbian & Bisexual Group
of Boston, Inc., supra. But it does not follow that the
First Amendment exempts the Girl Scouts from state
laws of general applicability that have only a remote,
hypothetical impact on the organization’s message.
The original stated reasons for reducing the number
of local councils were to improve the marketing of Girl
Scout cookies, exploit economies of scale, and do more
effective fundraising—all by increasing each surviving
council’s resources. But in this appeal the national organi-
zation emphasizes instead a goal of increasing the racial
and ethnic diversity of the Girl Scouts. The idea seems
No. 10-1986 5
to be that the larger the area served by a council, the
likelier it is to encompass a racially and ethnically
diverse population of girls. Of course that could equally
be viewed as dilution, as when legislatures redraw
district lines so that a minority group that had a voting
majority in some of these districts becomes a minority—in
the extreme case when voting by district is replaced by
state-wide voting. See Thornburg v. Gingles, 478 U.S. 30, 47-
51 (1986). But just as the national organization of the
Boy Scouts was held entitled to exclude homosexuals
as scoutmasters in order to avoid blurring that organiza-
tion’s ideological identity, Boy Scouts of America v. Dale,
supra, 530 U.S. at 653-59, so the national organization of
the Girl Scouts claims a First Amendment right to reorga-
nize its structure in an effort to attract more members
of minority groups and by doing so convey a stronger
message of racial and ethnic inclusiveness.
The First Amendment was barely hinted at in the first
appeal of this case, and was just a small part of the national
organization’s argument in the district court, but when
it became the district court’s sole ground for ruling in
its favor the national organization embraced it eagerly.
Yet this ground for overriding the fair-dealership law
cannot be taken seriously in the absence of any evidence
of a connection between realignment of the councils and
promotion of diversity—and none was presented. If the
national organization wants Manitou to recruit minority
girls more vigorously, it can order Manitou to do so—the
national organization is authorized by its contracts (the
“charters”) with the local councils to impose requirements
6 No. 10-1986
on the councils and revoke or refuse to renew a charter
if those requirements aren’t met. How changing the
territorial boundaries would increase the recruitment
of girls from minority groups is nowhere shown.
The national organization’s main articulated concern
in promulgating the realignment plan was with de-
clining membership in the Girl Scouts. It noted that the
percentage of girls who belong to minority groups is
increasing and is expected to soon reach half the
girl population; the implication is that stepped-up recruit-
ment efforts should be directed toward those girls
to maintain membership. No doubt; but this is no more
“expressive” than the decision by a fast-food chain to
increase its offerings of Mexican food because the
Hispanic population in the United States is growing
faster than the Anglo population. Anyway it’s only by
picking a couple of peak years that the national organiza-
tion can claim that membership in the Girl Scouts is
declining. The number of Girl Scouts was higher in 2003
and 2004 (when the realignment plan was adopted)
than for all years in the Girl Scouts’ long history except
1964 to 1973. And as a percentage of the national girl
population, Girl Scout membership was higher in 2003
and 2004 than in any years since 1973 except for the years
1991 through 1993.
The possibility that a law of general application might
indirectly and unintentionally impede an organization’s
efforts to communicate its message effectively can’t be
enough to condemn the law. Otherwise the Girl Scouts
could challenge building codes on the ground that they
No. 10-1986 7
increase the costs of building and maintaining Girl
Scout camps and by doing so reduce the resources avail-
able for inculcating Girl Scout values in the girls; and
media companies could claim exemption from mini-
mum wage laws and journalists from income taxes. If
the antitrust laws apply to the nonacademic activities
of universities, as they do, National Collegiate Athletic
Ass’n v. Board of Regents of University of Oklahoma, 468
U.S. 85, 98-102 (1984), though universities exist
principally to speak, then franchise laws can apply to the
Girl Scouts’ dealership structure, which is optimized
for the sale of cookies. On the record of this case it is
conjecture—and implausible conjecture at that—that
forbidding the national organization to dissolve the
Manitou council would hamper expressive activity.
There is no suggestion that the council has ever failed
to implement the national organization’s policies
regarding membership diversity, or that it has ever, in
any respect, gone off message. The national organiza-
tion ignores the possibility of simply directing Manitou
to bend more of its efforts toward enlisting black,
Hispanic, or Asian girls in the Girl Scout troops in its
territory.
The national organization argues as a backup to its First
Amendment claim that dissolving Manitou would not
violate the Wisconsin Fair Dealership Law. In making
this argument it is going against the district court,
which ruled that the national organization had indeed
violated the dealership law (as also suggested by the
analysis in our first decision, ordering the grant of a
preliminary injunction in Manitou’s favor). There is a
8 No. 10-1986
question whether the issue is preserved, since it is not men-
tioned in the list of questions presented in the national
organization’s brief; and it is argued casually; but we’ll
consider it.
The dealership statute forbids a franchisor to “termi-
nate, cancel, fail to renew or substantially change the
competitive circumstances of a dealership agreement
without good cause.” Wis. Stat. § 135.03. A “dealer” is
defined as the grantee of a dealership and a “dealership
agreement” as an agreement that, so far as bears on this
case, authorizes the grantee to “use [the grantor’s] trade
name, trademark, service mark, logotype, advertising
or other commercial symbol” and creates “a community
of interest” between the parties “in the business
of offering, selling or distributing goods or services at
wholesale, retail, by lease, agreement, or otherwise.”
§§ 135.02(2), (3)(a).
The national organization argues that the statute is
inapplicable to nonprofit entities, such as it and the
Manitou council. The reference to “commercial symbol[s]”
and to “the business” of offering, etc., goods and services
provides some support for the argument, since one
doesn’t usually think of nonprofit enterprises as being
“commercial” and engaged in “business.” Or didn’t use
to—for outweighing these hints is the fact that nonprofit
enterprises frequently do engage in “commercial” or
“business” activities, and certainly the Girl Scouts do.
Proceeds of the sale of Girl Scout cookies are the major
source of Manitou’s income. The local councils sell other
merchandise as well. Sales of merchandise account for
No. 10-1986 9
almost a fifth of the national organization’s income, and
most of the rest comes from membership fees and
thus depends on the success of the local councils in re-
cruiting members; that in turn depends on the coun-
cils’ revenues and thus gives the national organiza-
tion an indirect stake in the cookie sales. The national
organization describes its reorganization of the local-
council structure as “a key component” of its “Core
Business Strategy.” From a commercial standpoint the
Girl Scouts are not readily distinguishable from Dunkin’
Donuts.
No gulf separates the profit from the nonprofit sectors
of the American economy. There are nonprofit hospitals
and for-profit hospitals, nonprofit colleges and for-profit
colleges, and, as we have just noted, nonprofit sellers of
food and for-profit sellers of food. When profit and non-
profit entities compete, they are driven by competition
to become similar to each other. The commercial activity
of nonprofits has grown substantially in recent decades,
fueled by an increasing focus on revenue maximizing
by the boards of these organizations, and this growth
has stimulated increased competition both among non-
profit enterprises and with for-profit ones. Howard P.
Tuckman & Cyril F. Chang, “Commercial Activity, Tech-
nological Change, and Nonprofit Mission,” in The
Nonprofit Sector: A Research Handbook 629, 630 (Walter W.
Powell & Richard Steinberg eds., 2d ed. 2006); Dennis R.
Young & Lester M. Salamon, “Commercialization, Social
Ventures, and For-Profit Competition,” in The State of
Nonprofit America 423, 436-37 (Salamon ed. 2002); Burton
A. Weisbrod, “The Nonprofit Mission and Its Financing,”
10 No. 10-1986
in To Profit or Not to Profit: The Commercial Transformation
of the Nonprofit Sector 1, 16-17 (Weisbrod ed. 1998);
Michael S. Knoll, “The UBIT: Leveling an Uneven Playing
Field or Tilting a Level One?,” 76 Fordham L. Rev. 857, 858-
59 (2007); Evelyn Brody, “Agents Without Principals:
The Economic Convergence of the Nonprofit and For-
Profit Organizational Forms,” 40 N.Y. Law School L. Rev.
457, 489-90 (1996).
The principal difference between the two types of firm
is not that nonprofits eschew typical commercial
activities such as the sale of services—they do not—but
that a nonprofit enterprise is forbidden to distribute
any surplus of revenues over expenses as dividends
or other income to owners of the enterprise, but
must apply the surplus to the enterprise’s mission.
That does not seem to alter the incentives of the people
who run such organizations much, if one may judge from
the many scandals involving nonprofit colleges and
universities, which seem to compete for students,
faculties, research grants, and alumni gifts with a zeal
comparable to that of their for-profit counterparts. “In
response to the challenges they are facing from the
market, nonprofits are internalizing the culture and
techniques of market organizations and making them
their own.” Young & Salamon, supra, at 436. We have
noted that the original stated purpose of the national Girl
Scout organization in cutting its local councils by two-
thirds was to effectuate a cost- and revenue-driven
“business strategy,” which is a worthy objective but no
different from the objectives of profit-making firms. It
has even been said with regard to a previous restructuring
No. 10-1986 11
of the Girl Scouts of America that “lurking in the back-
ground like a corporate raider was the Boy Scouts of
America. It had launched a feasibility study of extending
its membership to girls.” John A. Byrne, “Profiting From
the Nonprofits,” Business Week, March 16, 1990, pp. 66, 72.
The principal or at least the most readily defensible
objective of dealer protection laws is to prevent
franchisors from appropriating good will created by their
dealers. Al’s Service Center v. BP Products North America,
Inc., 599 F.3d 720, 722 (7th Cir. 2010); Fleet Wholesale
Supply Co. v. Remington Arms Co., 846 F.2d 1095, 1097 (7th
Cir. 1988) (discussing the Wisconsin law); Veracka
v. Shell Oil Co., 655 F.2d 445, 448 (1st Cir. 1981);
Paul Steinberg & Gerald Lescatre, “Beguiling Heresy:
Regulating the Franchise Relationship,” 109 Penn St. L.
Rev. 105, 221-23 (2004); James A. Brickley, Frederick H.
Dark & Michael S. Weisbach, “The Economic Effects
of Franchise Termination Laws,” 34 J.L. & Econ. 101, 110
(1991); Martin D. Fern & Philip Ian Klein, “Restrictions
on Termination and Nonrenewal of Franchises: A
Policy Analysis,” 36 Bus. Law. 1041, 1042 (1981). Suppose
a franchisor has given a franchisee an exclusive territory
in order to encourage him to promote the franchisor’s
brand, knowing that if there were multiple, competing
franchisees in that territory none would have an incen-
tive to invest in the brand because other franchisees
would free ride on his efforts. And suppose that after an
exclusive franchisee’s promotional efforts have made
the franchisor’s brand popular, so that the franchisee’s
promotion of the brand is no longer important to its
success, the franchisor decides to seed the franchisee’s
12 No. 10-1986
territory with additional franchisees in order to create
intrabrand competition, which would lower the retail
price of the branded good (thus squeezing the franchisees’
margins) and so further expand demand for the brand
and therefore total sales. This would be an example of a
franchisor’s acting to expropriate good will for his
brand that had been created by the franchisees’ efforts.
Dealer protection laws are aimed at such abuses,
though they also and perhaps predominantly reflect the
political influence of local businessmen seeking ad-
vantages over franchisors likely to be located in other
states. Brickley, Dark & Weisbach, supra, at 115-17; Donald
P. Horwitz & Walter M. Volpi, “Regulating the Franchise
Relationship,” 54 St. John’s L. Rev. 217, 275-76 (1980); cf.
Foerster, Inc. v. Atlas Metal Parts Co., 313 N.W.2d 60, 63
(Wis. 1981). Either way the concerns that motivate the
laws seem applicable to nonprofit enterprises that enter
into dealership agreements as defined in the laws, and
so, as in our previous opinion, we decline to read an
exception for nonprofit enterprises into the Wisconsin
law. 549 F.3d at 1092-94. Indeed, the statement in
Foerster, Inc. v. Atlas Metal Parts Co., supra, 313 N.W.2d at
63, that the dealership law “was meant to protect only
those small businessmen who make a substantial
financial investment in inventory, physical facilities or
‘good will’ as part of their association with the grantor
of the dealership” could have been written with the
Manitou Council in mind. It manages a rolling inventory
of Girl Scout-branded cookies, operates camps that are
identified as “Girl Scout camps,” and proselytizes for
No. 10-1986 13
Girl Scouting in the communities that it serves, building
up good will both for the local council and the national
brand.
The national organization next argues that its altera-
tion of Manitou’s territory did not change “the competi-
tive circumstances of [the] dealership agreement,” a term
we understand to mean provisions of the agreement
that affect the dealer’s competitive position; stripping a
dealer of territorial exclusivity granted in the dealership
agreement would be an example of such a change. Of
course if the grant of exclusivity has an exception, the
franchisor does not change the competitive circum-
stances of the dealership agreement by availing itself of
the exception. And thus if the agreement authorizes the
franchisor to open new stores in a franchisee’s area, the
franchisor can do so without thereby violating the fair-
dealership law. Super Valu Stores, Inc. v. D-Mart Food Stores,
Inc., 431 N.W.2d 721, 725 (Wis. App. 1988); see also Interim
Health Care of Northern Illinois, Inc. v. Interim Health Care,
Inc., 225 F.3d 876, 879-83 (7th Cir. 2000) (Illinois law);
Burger King Corp. v. Weaver, 169 F.3d 1310, 1315-17 (11th
Cir. 1999) (Florida law); Domed Stadium Hotel, Inc. v.
Holiday Inns, Inc., 732 F.2d 480, 484 (5th Cir. 1984) (Louisi-
ana law). We noted in the previous appeal that Manitou’s
“charter” (that is, the agreement between it and the
national organization) authorized the national organiza-
tion to change Manitou’s territory only during the period
in which it was applying for its charter (or an extension),
and not after the application was granted, as it was, for
the territory that the national organization now wants
to eliminate. 549 F.3d at 1097-98. But the local councils
14 No. 10-1986
have agreed to abide by requirements promulgated by
the national organization’s board of directors—and
among those requirements is that “in all matters con-
cerning jurisdictional lines, the [board] has the authority
to make the final decision, either during the term of the
charter or upon issuance of a new charter.”
Altering a franchisee’s territorial boundaries can have
the same effect as opening new stores in his territory;
the narrower those boundaries, the less protection the
franchisee has against competition from other franchisees.
But when as in this case the franchisor, though authorized
to alter boundaries, attempts to use that authority
to terminate the franchise altogether, he runs up against
the provision of the Wisconsin act that requires “good
cause” to cancel a dealership. Wis. Stat. § 135.03.
The term is defined (so far as relates to this case) as
the dealer’s “failure . . . to comply substantially with
essential and reasonable requirements imposed . . . by the
grantor” of the dealership. Wis. Stat. § 135.02(4)(a). But
no crisp test has emerged from the only Wisconsin
decision to discuss the statutory provision. Ziegler Co. v.
Rexnord, Inc., 433 N.W.2d 8, 11-13 (Wis. 1988). The court
did say that “the need for change sought by a grantor
must be objectively ascertainable.” Id. at 13; see Morley-
Murphy Co. v. Zenith Electronics Corp., 142 F.3d 373, 377-
78 (7th Cir. 1998). But the difficult question is not veri-
fication, but “need.” What does it mean?
In a wide-ranging discussion of dealer protection laws,
the Second Circuit said that the franchisor need not
prove that his existing territorial allocations were “unprof-
itable”: “A seller of goods in the marketplace is justified
No. 10-1986 15
in identifying untapped opportunities or unutilized
potential and adjusting its distribution network to realize
greater profits . . . . In the case at hand [the franchisor]
determined it could increase sales by increasing service
frequency. This result it thought best accomplished
by rationalizing its distributors’ haphazard routes . . . .
Here we are faced with a legitimate business need to
increase sales and the steps taken to further that goal.
[The franchisor’s] goal of increasing sales constitutes
‘good cause’ within the meaning of the Franchise Act.
Thus, the Act does not prevent defendant from
realigning plaintiffs’ territories.” Petereit v. S.B. Thomas,
Inc., 63 F.3d 1169, 1185 (2d Cir. 1995). We don’t know
whether the Wisconsin courts would whittle down the
requirement of good cause to this extent, especially in a
case in which, because his entire territory will be trans-
ferred to other dealers, the dealer will be terminated.
(The district judge correctly described the transfer as
amounting to “constructive termination” of Manitou’s
dealership.) Even if the Wisconsin courts would go that
far, the national organization’s proof of good faith would
fail. In this court it has all but abandoned the argument
that eliminating Manitou is necessitated by business
reasons, though it might well be, because the overall plan
for Wisconsin is to reduce the number of local councils
from fifteen to three, in part to reduce overhead costs,
which though borne by the local council affect the national
organization indirectly. Instead it pitches its good-cause
argument on the proposition that realignment is neces-
sary to its expressive activity—so we are back to the
First Amendment, here used to get around having to
16 No. 10-1986
offer evidence of good cause by being proposed as a
ground for narrowing the scope of a statute.
The idea of construing statutes in a strained fashion in
order to avoid constitutional questions is orthodox, see,
e.g., Clark v. Martinez, 543 U.S. 371, 380-82 (2005);
Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 348
(1936) (Brandeis, J., concurring); Nelson v. Miller, 570
F.3d 868, 889 and n. 13 (7th Cir. 2009); Ward v. Dixie Nat’l
Life Ins. Co., 595 F.3d 164, 176-77 (4th Cir. 2010), though
premised on a fictitious proposition—“that Congress
did not intend the alternative [statutory interpretation
that] raises serious constitutional doubts,” Clark v. Marti-
nez, supra, 543 U.S. at 381—and forcefully criticized
as an “activist” doctrine because its effect is to expand
constitutional prohibitions past their actual boundaries.
Frank H. Easterbrook, “Do Liberals and Conservatives
Differ in Judicial Activism?,” 73 U. Colo. L. Rev. 1401, 1405-
09 (2002). (In principle the legislature can eliminate
the prohibition by amending the statute, but legisla-
tures are structured to make it difficult to pass laws, and
amendments are laws.) No matter; the weakness of the
constitutional argument made by the national organiza-
tion infects its statutory argument. There is no evidence
that the proposed redrawing of boundaries is “essential”
or even helpful to the attainment of the national organiza-
tion’s expressive goals. The purpose of the realignment
remains an enigma; like many corporate and govern-
mental reorganizations it may reflect internal bureau-
cratic pressures unrelated to the organization’s professed
legitimate concerns.
No. 10-1986 17
That completes our analysis, except to note certain
unprofessional features of the brief filed in this court by
the law firm of Hogan Lovells US LLP on behalf of the
national organization.
For the proposition that “an expressive group’s
message and structure are critically linked,” the brief
cites Eu v. San Francisco County Democratic Central Commit-
tee, 489 U.S. 214 (1989). That case involved a First Amend-
ment challenge to a California statute that forbade the
official governing bodies of political parties to endorse
or oppose candidates in primary elections. The statute
also dictated the organization and composition of those
governing bodies, limited the term of office of the
chairman of a party’s state central committee, and re-
quired that the chairmanship rotate between residents
of northern and southern California. The resemblance of
that case to the present one is tenuous, to say the least, but
without telling the reader what the case is about or that it
involves political parties, the national organization’s brief
misleadingly states: “restrictions which limit a group’s
‘discretion in how to organize itself [and] conduct its
affairs . . . may also color the [group’s] message and
interfere with [its] decisions as to the best means to pro-
mote that message,’ ” quoting 489 U.S. at 231 and n. 21.
Here is what the Supreme Court actually said:
Each restriction thus limits a political party’s discretion
in how to organize itself, conduct its affairs, and select
its leaders. Indeed, the associational rights at stake
are much stronger than those we credited in Tashjian.
There, we found that a party’s right to free associa-
tion embraces a right to allow registered voters who
18 No. 10-1986
are not party members to vote in the party’s primary.
Here, party members do not seek to associate
with nonparty members, but only with one another
in freely choosing their party leaders.2 1
21
By regulating the identity of the parties’ leaders, the
challenged statutes may also color the parties’
message and interfere with the parties’ decisions as to
the best means to promote that message.
Id. at 230-31 and n. 21. The Court was not talking about
groups in general, but about political parties; the law
firm’s decision to substitute “group” for “party” in
the brief was inexcusable. Furthermore, the Court did
not say that restrictions that limit a political party’s dis-
cretion concerning how to organize itself and conduct its
affairs may also color the parties’ message and interfere
with the parties’ decisions on how best to promote that
message. It said that “by regulating the identity of the
parties’ leaders”—a regulation that has no counterpart
in this case—the challenged statute might color the par-
ties’ message and interfere with their decisions. The
brief distorts the Court’s meaning, and this could not
be accidental.
The brief also states that “the District Court granted [the
national organization’s] motion for summary judgment
on all counts.” That is literally correct but misleading.
The court ruled that the national organization had
violated the Wisconsin Fair Dealership Law, but that
this didn’t matter because the law could not constitu-
tionally be applied to the national organization’s action.
No. 10-1986 19
To conclude, Manitou’s motion for summary judgment
on its claim under the fair-dealership law should have
been granted, for there is no legal or factual basis for
the national organization’s contrary position. The judg-
ment granting summary judgment in favor of the
national organization is therefore reversed with direc-
tions to grant summary judgment for Manitou on its fair-
dealership claim and order appropriate relief; in the
meantime the district judge shall reinstate the
preliminary injunction. His rejection of Manitou’s com-
mon law claims is, however, affirmed.
A FFIRMED IN P ART,
R EVERSED IN P ART, AND R EMANDED.
5-31-11