Case: 11-11266 Date Filed: 02/05/2014 Page: 1 of 68

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 11-11266 ________________________

D.C. Docket No. 5:11-cv-00761-CLS

ALABAMA EDUCATION ASSOCIATION, an Alabama non-profit corporation, A-VOTE, an Alabama political committee, PAM HILL, JEFF BREECE, CHASSITY SMITH, et al.,

Plaintiffs - Appellees,

versus

STATE SUPERINTENDENT OF EDUCATION, STATE OF ALABAMA, CHANCELLOR OF POSTSECONDARY EDUCATION, STATE OF ALABAMA, ATTORNEY FOR LEE COUNTY, STATE OF ALABAMA,

Defendants - Appellants.

________________________

No. 11-11267 ________________________ Case: 11-11266 Date Filed: 02/05/2014 Page: 2 of 68

D.C. Docket No. 5:11-cv-00761-CLS

ALABAMA EDUCATION ASSOCIATION, an Alabama non-profit corporation, A-VOTE, an Alabama political committee, PAM HILL, JEFF BREECE, CHASSITY SMITH, et al.,

Plaintiffs-Appellees,

versus

GOVERNOR OF ALABAMA AND PRESIDENT OF THE STATE SCHOOL BOARD, DIRECTOR OF FINANCE, STATE OF ALABAMA, COMPTROLLER, STATE OF ALABAMA,

Defendants-Appellants.

_________________________

No. 11-12609 _________________________

D.C. Docket No. 5:11-cv-01054-CLS

INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, An unincorporated labor organization, FIREPAC, a political action committee, AMERICAN FEDERATION OF TEACHERS LOCAL 2115, et al.,

Plaintiffs-Appellees,

versus

SUPERINTENDENT OF EDUCATION, in his capacity as the Superintendent of Education of the State of Alabama,

2 Case: 11-11266 Date Filed: 02/05/2014 Page: 3 of 68

STATE OF ALABAMA, CHANCELLOR OF POSTSECONDARY EDUCATION, in her capacity as Chancellor of Postsecondary Education of the State of Alabama, et al.,

Defendants-Appellants.

________________________

Appeals from the United States District Court for the Northern District of Alabama ________________________

(February 5, 2014)

Before COX and DUBINA, Circuit Judges, and HUNT, * District Judge.

DUBINA, Circuit Judge:

I. BACKGROUND

This appeal came to us following the district court’s entry of a preliminary

injunction preventing enforcement of Alabama Act No. 2010-761 (“the Act”),

codified at Alabama Code §17-17-5. The Act prohibits public employees from

“arrang[ing] by salary deduction or otherwise” for payments to (1) political action

committees or (2) organizations that use any portion of the dues for “political

activity.” Id. §17-17-5(b) (emphasis added). The Act then goes on to define

“political activity” for the purposes of §17-17-5(b) only, limiting it to:

a. Making contributions to or contracting with any entity which engages in any form of political communication, including communications which mention the name of a political candidate.

* Honorable Willis B. Hunt, Jr., United States District Judge for the Northern District of Georgia, sitting by designation. 3 Case: 11-11266 Date Filed: 02/05/2014 Page: 4 of 68

b. Engaging in or paying for public opinion polling. c. Engaging in or paying for any form of political communication, including communications which mention the name of a political candidate. d. Engaging in or paying for any type of political advertising in any medium. e. Phone calling for any political purpose. f. Distributing political literature of any type. g. Providing any type of in-kind help or support to or for a political candidate.

Id. §17-17-5(b)(1).

Appellees, the Alabama Education Association, its political action

committee A-VOTE, and a handful of its individual members, brought a pre-

enforcement, facial challenge to the Act. Two days before the Act was to take

effect, the district court preliminarily enjoined its enforcement on two grounds.

First, the district court concluded that the “or otherwise” language suffered from a

constitutional overbreadth problem and risked prohibiting protected First

Amendment activity. Ala. Educ. Ass’n v. Bentley, 788 F. Supp. 2d 1283, 1320

(N.D. Ala. 2011) (“Bentley”). Second, it found that the term “political activity”

was unconstitutionally vague, such that those subject to the Act’s criminal

penalties could not determine whether their actions constituted “political activity.”

Id. at 1327–28.

Appellants, state officials charged with executing the Act, appealed the

district court’s grant of a preliminary injunction. Though we generally review a

grant of a preliminary injunction for an abuse of discretion, we review underlying 4 Case: 11-11266 Date Filed: 02/05/2014 Page: 5 of 68

conclusions of law de novo. N. Am. Med. Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211, 1216 (11th Cir. 2008). The district court always lacks the discretion to

apply an improper legal standard. Id.

In a facial challenge alleging overbreath and vagueness, “a court's first task

is to determine whether the enactment reaches a substantial amount of

constitutionally protected conduct.” Village of Hoffman Estates v. Flipside,

Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S. Ct. 1186, 1191 (1982) (citations

omitted). “If it does not, then the overbreadth challenge must fail.” Id. As for

vagueness, if the enactment implicates no constitutionally protected conduct, the

inquiry on a facial challenge is whether “the enactment is impermissibly vague in

all of its applications.” Id. at 495, 102 S. Ct. at 1191; see also Holder v.

Humanitarian Law Project, 561 U.S. 1, __, 130 S. Ct. 2705, 2718 (2010) (noting

that a criminal statute is unconstitutionally vague if it “fails to provide a person of

ordinary intelligence fair notice of what is prohibited, or is so standardless that it

authorizes or encourages seriously discriminatory enforcement” (quotations

omitted)). An enactment that is not impermissibly vague in all its applications will

survive a vagueness challenge. Village of Hoffman Estates, 455 U.S. at 494–95,

102 S. Ct. at 1191.

A properly conceived ban on salary deductions to organizations engaged in

political activity would be constitutional. Ysursa v. Pocatello Educ. Ass’n, 555

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U.S. 353, 355, 129 S. Ct. 1093, 1096 (2009) (“[N]othing in the First Amendment

prevents a State from determining that its political subdivisions may not provide

payroll deductions for political activities.”). Accordingly, when first confronted

with this controversy, this court asked the Alabama Supreme Court to weigh in on

the Act’s reach and help us assess whether the ban on salary deductions paid to

organizations engaged in “political activities” was, in fact, properly conceived.

See Ala. Educ. Ass’n v. State Superintendent of Educ., 665 F.3d 1234, 1238 (11th

Cir. 2011) (“A statute with a broader reach may implicate First Amendment

concerns not explored in Ysursa.”). We certified two questions:

(1) Is the “or otherwise” language in the statute limited to the use of state mechanisms to support political organizations, or does it cover all contributions by state employees to political organizations, regardless of the source?

(2) Does the term “political activity” refer only to electioneering activities?

Id. The Alabama Supreme Court answered our questions in State

Superintendent of Education v. Alabama Education Association, __ So. 3d ____,

No. 1110413, 2013 WL 5763283 (Ala. Oct. 25, 2013). 1

II. DISCUSSION

A. The Overbreadth Challenge

1 The opinion of the Alabama Supreme Court is attached hereto as “Appendix I.” 6 Case: 11-11266 Date Filed: 02/05/2014 Page: 7 of 68

The Alabama Supreme Court’s opinion easily resolves any concern that the

“or otherwise” language is overbroad. Every member of the Alabama Supreme

Court agreed that the language in question, in the context of the entire Act,

prohibits only the use of state mechanisms to support politically active

organizations. The Act does not prohibit “private forms of payment, i.e., forms of

payment not facilitated by the government.” Id. at ___, 2013 WL 5763283, at *7.

This compels the conclusions that the Act only declines to promote speech, rather

than abridging it, and that the Act does not implicate any constitutionally protected

conduct, much less a substantial amount. See Ysursa, 555 U.S. at 359, 129 S. Ct. at 1098 (holding that Idaho’s limitation on public employee payroll deductions did

not implicate the First Amendment, as the prohibition simply prevented

organizations from enlisting the state’s support of their speech).

Accordingly, we hold that the Appellees cannot demonstrate a substantial

likelihood of success on the merits of their overbreadth claim. See Village of

Hoffman Estates, 455 U.S. at 494, 102 S. Ct. at 1191 (holding than if an enactment

does not reach a substantial amount of constitutionally protected conduct, an

overbreadth challenge to it will fail). It is clear to us that the district court applied

7 Case: 11-11266 Date Filed: 02/05/2014 Page: 8 of 68

the wrong legal standard and abused its discretion in granting a preliminary

injunction on that basis.2

B. The Vagueness Challenge

This court geared its second question toward review of the district court’s

finding that the Act’s definition of “political activities” is likely unconstitutionally

vague and a violation of due process. See Bentley, 788 F. Supp. 2d at 1328

(granting a preliminary injunction after concluding there was a substantial

likelihood the Act’s challengers would “succeed in demonstrating this part of the

statute is void for vagueness”); cf. Village of Hoffman Estates, 455 U.S. at 497, 102 S. Ct. at 1193 (“A law that does not reach constitutionally protected conduct and

therefore satisfies the overbreadth test may nevertheless be challenged on its face

as unduly vague, in violation of due process.”). We asked whether the term

“political activities” as used in the Act reaches more than “electioneering

activities,” and the Alabama Supreme Court indicated that it does. State

Superintendent of Educ., __ So. 3d at ____, 2013 WL 5763283, at *7 (holding that

“political activity,” as used and defined in Ala. Code § 17-17-5(b)(1), “embraces

more than electioneering”).

2 Because the Act does not reach constitutionally protected conduct, the Defendants- Appellants need only demonstrate a rational basis to justify the Act’s prohibition on payroll deductions going to organizations engaged in political activities. Ysursa, 555 U.S. at 359, 129 S. Ct. at 1098 (“Given that the State has not infringed the unions’ First Amendment rights, the State need only demonstrate a rational basis to justify the ban on political payroll deductions.”). 8 Case: 11-11266 Date Filed: 02/05/2014 Page: 9 of 68

To succeed in their void for vagueness challenge, the Act’s challenger’s

“must demonstrate that the law is impermissibly vague in all of its applications.”

Village of Hoffman Estates, 455 U.S. at 497, 102 S. Ct. at 1193. Where an

enactment clearly covers some conduct in which a plaintiff engages, that plaintiff

cannot complain of the vagueness of the law. Id. at 495, 102 S. Ct. at 1191 (“A

court should therefore examine the complainant’s conduct before analyzing other

hypothetical applications of the law.”). In Village of Hoffman Estates, the

Supreme Court of the United States concluded that a municipal ordinance requiring

a license to sell “any items, effect, paraphernalia, accessory or thing which is

designed or marketed for use with illegal cannabis or drugs” was not

impermissibly vague in all its applications, despite its possible ambiguities. 455 U.S. at 500, 102 S.Ct. at 1194 (quoting the ordinance). The ordinance’s “designed

for use” standard was “sufficiently clear to cover at least some of the items” the

challenger sold. Id. at 502, 102 S. Ct. at 1195. Thus, the licensing requirement

clearly applied to the plaintiff and its facial challenge failed. Id. at 495, 102 S. Ct. at 1191; see also Holder, 561 U.S. at __, 130 S. Ct. at 2719 (remarking that the

rule that one engaged in conduct clearly proscribed by a statute may not challenge

the statute for vagueness “makes no exception for conduct in the form of speech”).

Likewise, whatever else the Act’s definition of political activities may

encompass, it includes electioneering activities, in which the AEA and A-VOTE

9 Case: 11-11266 Date Filed: 02/05/2014 Page: 10 of 68

concede they are engaged. (Appellees’ Br. at 31; R. 34 at 59–60.) The definition

of political activities, even prior to the Alabama Supreme Court’s elucidation of

the Act, gave the AEA and A-VOTE ample warning they engaged in political

activities, and it gave the individual members warning that arranging for payroll

deductions to AEA or A-VOTE was prohibited.

Some of AEA and A-VOTE’s conduct indisputably falls within the Act’s

definition of political activity, and therefore the challengers cannot bring a facial

challenge arguing the term is vague based on other applications. It is not

substantially likely the challengers will succeed on the merits of their void for

vagueness challenge,3 and the district court erred in granting a preliminary

injunction on that basis.

III. CONCLUSION

For the foregoing reasons, we reverse the district court’s order granting a

preliminary injunction and remand this case for further proceedings consistent with

this opinion.

REVERSED and REMANDED.

3 A series of as applied challenges is a more appropriate forum for challenging other, potentially more vague applications of the Act. Cf. Holder, 561 U.S. at __, 130 S. Ct. at 2720 (holding that that though a statute might not be clear in every application, the fact that it was clear with respect to the plaintiffs' conduct meant that their vagueness claim failed). 10 Case: 11-11266 Date Filed: 02/05/2014 Page: 11 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 12 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 13 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 14 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 15 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 16 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 17 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 18 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 19 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 20 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 21 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 22 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 23 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 24 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 25 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 26 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 27 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 28 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 29 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 30 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 31 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 32 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 33 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 34 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 35 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 36 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 37 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 38 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 39 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 40 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 41 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 42 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 43 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 44 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 45 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 46 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 47 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 48 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 49 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 50 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 51 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 52 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 53 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 54 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 55 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 56 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 57 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 58 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 59 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 60 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 61 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 62 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 63 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 64 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 65 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 66 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 67 of 68 Case: 11-11266 Date Filed: 02/05/2014 Page: 68 of 68