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[PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 22-14302 ____________________ NEW GEORGIA PROJECT, INC., NEW GEORGIA PROJECT ACTION FUND, INC., Plaintiffs-Appellees, versus ATTORNEY GENERAL, STATE OF GEORGIA, CHAIRMAN OF GEORGIA GOVERNMENT TRANSPARENCY AND CAMPAIGN FINANCE COMMISSION, VICE CHAIR OF THE GEORGIA GOVERNMENT TRANSPAR- ENCY AND CAMPAIGN FINANCE COMMISSION, DARRYL HICKS, in his official capacity as a member of the Georgia Government Transparency and Campaign Finance Commission DAVID BURGE, in his official capacity as a member of the Georgia USCA11 Case: 22-14302 Document: 57-1 Date Filed: 07/08/2024 Page: 2 of 30

2 Opinion of the Court 22-14302 Government Transparency and Campaign Finance Commission, et al.,

Defendants-Appellants.

____________________ Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 1:22-cv-03533-VMC ____________________ Before ROSENBAUM, NEWSOM, and MARCUS, Circuit Judges.

NEWSOM, Circuit Judge: In this appeal from the grant of a preliminary injunction, we are asked to decide whether two Georgia campaign-finance stat- utes violate the First Amendment and, as a threshold matter, whether the district court should have abstained from exercising its jurisdiction under Younger v. Harris, 401 U.S. 37 (1971).

After careful review, and with the benefit of oral argument, we hold that Younger and its progeny required the district court to abstain and that the court therefore erred in issuing injunctive re- lief. Accordingly, we needn’t reach the merits of the First Amend- ment challenge. We vacate the district court’s decision and remand with instructions that it dismiss the underlying action.

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22-14302 Opinion of the Court 3 I A New Georgia Project is a § 501(c)(3) tax-exempt nonprofit founded by former state representative and gubernatorial candi- date Stacey Abrams. Its mission “is to build power with and in- crease the civic participation of . . . Black, Latinx, AAPI, and young Georgians . . . and other historically marginalized communities” through “voter registration, organizing, and advocacy.” New Georgia Project Action Fund is a § 501(c)(4) tax-exempt nonprofit whose purpose, it says, is “not the nomination or election of candi- dates, but rather engagement in issue advocacy.” We’ll refer to these two entities together as “New Georgia.”

The Georgia Government Transparency and Campaign Fi- nance Act requires individuals and entities that spend more than a specified amount on express advocacy in favor of or in opposition to a particular candidate or ballot measure to disclose those ex- penditures and their sources. See O.C.G.A. § 21-5-3(2), (15); id. § 21-5-34(a), (f). The Act also requires “campaign committees” and “independent committees” to register with the Georgia Govern- ment Transparency and Campaign Finance Commission. Id. § 21- 5-34(a), (f). Under the Act, there are different types of “campaign committees,” one of which exists to urge the adoption or rejection of ballot measures and which we’ll call a “ballot committee.” Id. § 21-5-34(a). An “independent committee” is any entity other than a “campaign committee, political party, or political action USCA11 Case: 22-14302 Document: 57-1 Date Filed: 07/08/2024 Page: 4 of 30

4 Opinion of the Court 22-14302 committee” that receives donations and spends money to advocate for the election or defeat of a candidate. Id. § 21-5-3(15).

New Georgia never registered with the Commission, nor did it did file disclosure reports during the 2018 or 2019 campaign seasons.

B In September 2019, a Commission staff attorney filed formal complaints with the Commission alleging that New Georgia had engaged in significant election spending in 2018 and 2019 without registering or filing the required disclosures. The complaints as- serted that the money New Georgia spent advocating on behalf of candidates qualified it as an “independent committee” within the meaning of the Act and that the money it spent to support a transit- expansion ballot measure qualified it as a “ballot committee.”

The Commission initiated an investigation. It subpoenaed New Georgia’s bank records, campaign materials, and invoices in an effort to determine whether the organization had engaged in undisclosed election spending. New Georgia filed a motion to quash the subpoena, which the Commission denied. The Commis- sion then subpoenaed Wells Fargo to obtain New Georgia’s bank records. New Georgia moved a Georgia state court to quash that subpoena too, but that motion was also denied.

Based on information discovered through the subpoenas, a staff attorney filed an amended complaint with the Commission. It alleged that New Georgia had violated the Act by failing to disclose more than $4.2 million in contributions and $3.2 million in USCA11 Case: 22-14302 Document: 57-1 Date Filed: 07/08/2024 Page: 5 of 30

22-14302 Opinion of the Court 5 expenditures during the 2018 primary, general, and run-off elec- tions. It also alleged that New Georgia had violated the Act by fail- ing to disclose $646,422 in contributions and $173,643 in expendi- tures to support a transit-related ballot initiative. The Commission notified New Georgia that it would hold a preliminary hearing at which it could contest the charges.

The following chronology is important: The preliminary hearing before the Commission occurred on August 1, 2022. Three days later, on August 4, the Commission issued an order finding “reasonable grounds” to conclude that New Georgia had violated the Act and referring the case to the Georgia Attorney General’s office for further proceedings.

About four weeks later, on August 31, New Georgia filed a civil-rights action in federal district court against the Georgia Attor- ney General and the members of the Commission—collectively, “the state”—claiming that the Act violated the First and Fourteenth Amendments, both on its face and as applied. A little more than a week thereafter, on September 8, New Georgia moved the district court to issue a preliminary injunction preventing the state from enforcing the Act against it. Citing Buckley v. Valeo, 424 U.S. 1 (1976), New Georgia contended that the Act’s disclosure require- ments couldn’t constitutionally be applied to it because its “major purpose” wasn’t nominating or electing a candidate. Id. at 79. New Georgia also argued that the Act swept too broadly by regulating all expenditures made “for the purpose of influencing” a USCA11 Case: 22-14302 Document: 57-1 Date Filed: 07/08/2024 Page: 6 of 30

6 Opinion of the Court 22-14302 nomination or election, even in the absence of “express advocacy.” Id. at 23, 48; O.C.G.A. § 21-5-3(7), (12).

Meanwhile, back in the state proceeding, about two weeks later, on September 21, the Georgia Attorney General formally transferring the enforcement action to the Office of State Adminis- trative Hearings (“OSAH”) for an evidentiary hearing.

Several months passed, and in December the federal court issued an order preliminarily enjoining enforcement of the Act against New Georgia. In so doing, the district court rejected the state’s arguments (1) that under Younger v. Harris, 401 U.S. 37 (1971), the court should abstain from exercising its jurisdiction on the ground that the state’s ongoing enforcement action provided New Georgia an adequate opportunity to vindicate its First Amendment rights and (2) that, on the merits, preliminary injunc- tive relief was inappropriate. The court noted that there was no dispute that the Commission’s prosecution of New Georgia quali- fied as the sort of a civil-enforcement proceeding to which Younger abstention might apply. But, the court concluded, the state’s action wasn’t “ongoing” in a way that would trigger Younger’s application until the matter was formally transferred to OSAH on September 21, 2022. Because by that time—and we’ll get into the details in due course—New Georgia’s federal suit had been pending for sev- eral weeks, the district court held that Younger and its progeny didn’t require abstention.

Having determined that it didn’t have to abstain, the district court proceeded to hold that the Act’s ballot- and independent- USCA11 Case: 22-14302 Document: 57-1 Date Filed: 07/08/2024 Page: 7 of 30

22-14302 Opinion of the Court 7 committee provisions were facially invalid under the First Amend- ment. In particular, although the court recognized that the state had important interests in promoting transparency and ensuring that voters have necessary information, and that the Act’s disclo- sure requirements were substantially related to those interests, it held that those requirements weren’t sufficiently tailored and swept too broadly. After finding that the usual equitable factors weighed in New Georgia’s favor, the court enjoined the enforce- ment of the challenged provisions.

This is the state’s appeal.

II Before us, the state contends, as a threshold matter, that the district court abused its discretion in declining to abstain under Younger from exercising its jurisdiction to issue injunctive relief. See Walker v. City of Calhoun, 901 F.3d 1245, 1255 (11th Cir. 2018) (hold- ing that a district court’s Younger abstention decision is reviewed for abuse of discretion). For reasons we’ll explain, we agree that Younger and its progeny required the district court to abstain. Ac- cordingly, we will vacate and remand on that ground, without ad- dressing the merits of New Georgia’s First Amendment challenge.

A More than 200 years ago now, Chief Justice Marshall ex- plained that federal courts “have no more right to decline the exer- cise of jurisdiction which is given, than to usurp that which is not given”—either, he warned, would be “treason to the constitution.”

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821). And in the USCA11 Case: 22-14302 Document: 57-1 Date Filed: 07/08/2024 Page: 8 of 30

8 Opinion of the Court 22-14302 years since, the Supreme Court has “often acknowledged that fed- eral courts have a strict duty to exercise the jurisdiction that is con- ferred upon them by Congress,” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996), and has repeatedly reiterated that federal courts have a “virtually unflagging obligation . . . to exercise the ju- risdiction given them,” Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976).

To be sure, in more recent times the Court has acknowl- edged that a federal court’s duty to decide the cases that fall within its jurisdiction “is not . . . absolute.” Quackenbush, 517 U.S. at 716.

Even so, it remains the case that abstaining from the “exercise of federal jurisdiction is the exception, not the rule.” Colorado River, 424 U.S. at 813. Accordingly, we have said that only the “clearest of justifications merits abstention.” Jackson-Platts v. Gen. Elec. Cap.

Corp., 727 F.3d 1127, 1140 (11th Cir. 2013) (quotation marks omit- ted).

In Younger, the Supreme Court recognized a limited excep- tion to the usual rule. There, an individual who had been indicted under a state “syndicalism” law sued in federal district court, seek- ing an order enjoining his state prosecution on the ground that it violated and chilled his First Amendment “rights of free speech and press.” 401 U.S. at 38–39. The district court granted the injunction, but the Supreme Court reversed, citing principles of equity and comity and what it called a “national policy forbidding federal courts to stay or enjoin pending state court proceedings except un- der special circumstances.” Id. at 41, 44. In its inception, Younger USCA11 Case: 22-14302 Document: 57-1 Date Filed: 07/08/2024 Page: 9 of 30

22-14302 Opinion of the Court 9 “abstention” applied only very narrowly—namely, to requests to enjoin (1) state criminal prosecutions and (2) indeed, only to those prosecutions that were “pending in state courts at the time the fed- eral proceeding is begun.” Id. at 41. With respect to other circum- stances—to non-criminal proceedings, or to those not yet pend- ing—the Younger Court “express[ed] no view.” Id. Just a few years later, the Supreme Court declined to extend Younger’s abstention policy to threatened-but-not-yet-filed prosecu- tions. In Steffel v. Thompson, the Court observed that the “principles of equity, comity, and federalism” that had animated its decision in Younger “have little force in the absence of a pending state proceed- ing.” 415 U.S. 452, 462 (1974) (citation omitted). The Steffel Court continued: When no state criminal proceeding is pending at the time the federal complaint is filed, federal interven- tion does not result in duplicative legal proceedings or disruption of the state criminal justice system; nor can federal intervention, in that circumstance, be in- terpreted as reflecting negatively upon the state court’s ability to enforce constitutional principles. In addition, while a pending state prosecution provides the federal plaintiff with a concrete opportunity to vindicate his constitutional rights, a refusal on the part of the federal courts to intervene when no state proceeding is pending may place the hapless plaintiff between the Scylla of intentionally flouting state law and the Charybdis of forgoing what he believes to be USCA11 Case: 22-14302 Document: 57-1 Date Filed: 07/08/2024 Page: 10 of 30

10 Opinion of the Court 22-14302 constitutionally protected activity in order to avoid becoming enmeshed in a criminal proceeding.

Id. For better or worse, the Supreme Court has since broadened Younger’s reach in two significant ways, both of which bear directly on this case. First, it has extended Younger beyond criminal prose- cutions to apply to state civil-enforcement proceedings. Initially, in Huffman v. Pursue, Ltd., the Court held that the policies underly- ing Younger—and thus its anti-injunction policy—apply to state- brought civil actions that are “akin to . . . criminal prosecution[s]” and “in aid of and closely related to criminal statutes.” 420 U.S. 592, 604 (1975). Then, in Trainor v. Hernandez, the Court took the next step, holding that “the principles of Younger and Huffman are broad enough to apply” to all state-filed civil-enforcement proceed- ings “brought to vindicate important state policies,” even those that cannot fairly be characterized as “quasi-criminal.” 431 U.S. 434, 444 (1977).

No one seems to dispute that the state campaign-finance proceeding at issue here qualifies as the type of civil-enforcement action to which Younger abstention can apply. To determine whether Younger’s rule actually applies, we look to the factors that the Supreme Court outlined in Middlesex County Ethics Committee v. Garden State Bar Association—namely, (1) whether there is an “on- going state judicial proceeding”; (2) whether the state proceeding “implicate[s] important state interests”; and (3) whether there is “an adequate opportunity in the state proceeding[] to raise USCA11 Case: 22-14302 Document: 57-1 Date Filed: 07/08/2024 Page: 11 of 30

22-14302 Opinion of the Court 11 constitutional challenges.” 457 U.S. 423, 432 (1982). All here seem to agree, and we have no reason to doubt, that the second and third Middlesex factors are satisfied, so we turn to the first: Was the state campaign-finance proceeding here “ongoing” in the relevant sense?

Which brings us to the second significant way in which the Supreme Court has extended Younger. A state proceeding, the Court has held, can be “ongoing” in either of two circumstances.

First, and most obviously, a state action is “ongoing” if it’s actually pending on the day the federal suit is filed. Second, and far less obviously, a state proceeding will be deemed to be “ongoing” for Younger purposes even if it’s not actually pending when the federal suit is filed—provided that it’s instituted soon thereafter, “before any proceedings of substance on the merits have taken place in fed- eral court.” Hicks v. Miranda, 422 U.S. 332, 349 (1975); accord Tokyo Gwinnett, LLC v. Gwinnett County, 940 F.3d 1254, 1268 (11th Cir. 2019); For Your Eyes Alone, Inc. v. City of Columbus, 281 F.3d 1209, 1217 (11th Cir. 2002).

The parties here vigorously dispute when the state cam- paign-finance proceeding against New Georgia commenced in ear- nest, and thus whether it was actually pending when New Georgia filed its federal suit on August 31, 2022. For its part, the state points to August 4, 2022, as the key date—that, recall, is the day the Com- mission issued its “reasonable grounds” order. That order, the state contends, is the functional equivalent of the indictment that formally commences a criminal proceeding.

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12 Opinion of the Court 22-14302 New Georgia counters by asserting (1) that by failing to pur- sue it in the district court the state waived any argument that its enforcement action commenced so early and (2) that, in any event, under Georgia law the proceeding can’t be deemed to have com- menced until September 21, 2022, when the Attorney General for- mally transferred the matter to the OSAH. In support of the latter contention, New Georgia points to a Georgia statute that provides that “an action shall be deemed to have commenced” only, as rel- evant here, with the service of a “notice of summons or hearing” under the Georgia Administrative Procedure Act, which occurs only after a preliminary hearing. O.C.G.A. § 21-5-13(d).

We needn’t decide whether the state’s enforcement action against New Georgia was actually pending on August 31, when New Georgia filed suit in federal court. We can assume, as New Georgia insists, that the state proceeding didn’t commence for an- other three weeks, until September 21, when the Attorney General transferred the case to OSAH. The question remains whether the state proceedings were nonetheless “ongoing” within the meaning of Hicks’s gloss—which, again, holds that “the principles of Younger v. Harris should apply in full force” even where state proceedings “are begun against the federal plaintiffs after the federal complaint is filed,” provided that they are commenced “before any proceed- ings of substance on the merits have taken place in the federal court.” Hicks, 422 U.S. at 349.

It is to that dispositive question that we now turn.

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22-14302 Opinion of the Court 13 B In determining whether Hicks’s “proceedings of substance on the merits” criterion is satisfied, we look to “the time that the district court has spent considering the case, any motions ruled on, any discovery, the number of conferences [or hearings] held, and any change in the parties’ position as a result of the federal litiga- tion.” Tokyo Gwinnett, 940 F.3d at 1272 (alteration in original) (quo- tation marks omitted). For good measure, we’ll also consider mo- tions that the parties filed, even if the district court hadn’t yet ruled on them. See id. (citing For Your Eyes Alone, 281 F.3d at 1218).

The district court engaged in only the most cursory treat- ment of these considerations. A closer look, we think, leads inexo- rably to the conclusion that no “proceedings of substance on the merits” had occurred in New Georgia’s federal suit before the At- torney General formally transferred the state proceeding to OSAH on September 21, 2022. The only thing that the district court had done before that date was to admit New Georgia’s attorneys pro hac vice and issue a routine standing order. And the only things that the parties had done were to file (1) a complaint, (2) pro hac vice applications and notices of appearance, (3) a motion for pre- liminary relief, and (4) service waivers. Whatever exactly the phrase “proceedings of substance on the merits” means, the pro- ceedings that took place in federal court here were neither “sub- stan[tive]” nor focused “on the merits” of New Georgia’s First Amendment claim.

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14 Opinion of the Court 22-14302 The decisions on which New Georgia relies—in which we held that abstention was not required—are readily distinguishable.

In Tokyo Gwinnett, for instance, by the time the state filed its en- forcement proceeding, the federal district court had, following nearly a year of docket activity, denied a motion to dismiss and en- tered a temporary restraining order. See 940 F.3d at 1268–69, 1272.

So too in For Your Eyes Alone, where we held that a federal court didn’t need to abstain because the city there had commenced its prosecution only “after it had begun actively litigating its position in federal court.” 281 F.3d at 1218 (emphasis added). By the time the city initiated its action in state court there, it had already filed mo- tions to dismiss and for summary judgment in federal court, and the district court had already held an evidentiary hearing and issued a TRO. Id. at 1218–19. Nothing of that sort had occurred before September 21 in federal court here.

Rather than meaningfully contending with the usual indi- cia—rulings, discovery, conferences, etc.—New Georgia offers four alternative arguments. First, echoing the district court, it re- casts Hicks’s “proceedings of substance on the merits” criterion in purely temporal terms, as a measure of the time that elapses be- tween the filing of a federal suit and the commencement of state proceedings. So, for instance, New Georgia emphasizes that in Hicks—in which the Supreme Court held that abstention was re- quired—the state prosecution began the day after the federal suit commenced, see 422 U.S. at 338, whereas in Tokyo Gwinnett—in which we held that it wasn’t—the county didn’t institute an en- forcement action until “nearly a year after” the plaintiff filed suit in USCA11 Case: 22-14302 Document: 57-1 Date Filed: 07/08/2024 Page: 15 of 30

22-14302 Opinion of the Court 15 federal court, see 940 F.3d at 1270. This case, New Georgia argues, falls somewhere between Hicks and Tokyo Gwinnett because the state instituted its enforcement proceeding three weeks after the federal suit was filed. And because no binding precedent squarely addresses that in-between scenario, New Georgia says, we should defer to the district court’s determination that, “in light of its expe- rience managing cases, it is too late.” Br. of Appellee at 25 (quoting Doc. 31 at 21).

We disagree. New Georgia has misread Hicks and its prog- eny. Those decisions focus not on the raw time that a federal case has spent on a district court’s docket but, rather, on whether the court has meaningfully engaged the merits of the claims before it.

See, e.g., For Your Eyes Alone, 281 F.3d at 1218–19. To be sure, the district court has some discretion to make even that determination “in light of its experience managing cases.” Here, though, it’s clear beyond reasonable dispute that the court never addressed itself to the merits of New Georgia’s First Amendment claim.

Second, New Georgia asserts that the First Amendment is just different—uniquely resistant to the principles of Younger and Hicks: “[T]his Court,” New Georgia says, “has been particularly reluctant to order abstention based on post-filing events in cases . . . involving a facial or as-applied challenge to a state statute on First Amendment free speech grounds.” Br. of Appellee at 23 (quotation marks omitted). And to be sure, we have recognized (albeit in dicta) that in the First Amendment context we can con- sider “the costs of duplication and delay caused by Younger as we USCA11 Case: 22-14302 Document: 57-1 Date Filed: 07/08/2024 Page: 16 of 30

16 Opinion of the Court 22-14302 calibrate how broadly or narrowly to define proceedings of sub- stance on the merits under Hicks.” For Your Eyes Alone, 281 F.3d at 1219–20. Even so, we have clarified that “First Amendment con- cerns do not, in themselves, provide a federal court with justifica- tion for interfering with a pending state criminal proceeding.” Id. at 1219. And indeed, many of the decisions in which the Supreme Court recognized and then expanded abstention doctrine—includ- ing, most notably, Younger and Hicks—were First Amendment cases. See Younger, 401 U.S. at 40; Hicks, 422 U.S. at 335–38; see also, e.g., Middlesex, 457 U.S. at 429; Huffman, 420 U.S. at 595.

Third, New Georgia contends that even if Younger applies, we should nonetheless forge ahead on the ground that the chal- lenged provision is “flagrantly and patently” unconstitutional.

Younger, 401 U.S. at 53–54. We disagree. The Younger Court itself explained that to fit within that limited exception, a challenged pro- vision must be unconstitutional “in every clause, sentence and par- agraph, and in whatever manner and against whomever an effort might be made to apply it.” Id. (citation omitted); see also For Your Eyes Alone, 281 F.3d at 1215. We, too, have emphasized the “nar- rowness” of the flagrantly-and-patently-unconstitutional excep- tion. See Hughes v. Att’y Gen. of Fla., 377 F.3d 1258, 1263 n.8 (11th Cir. 2004). Given the procedural posture, we “certainly cannot say at this stage that this statute is flagrantly and patently” unconstitu- tional in every application. Kolski v. Watkins, 544 F.2d 762, 755 (5th Cir. 1977) (quotation marks and citation omitted). Not even the district court went so far. It didn’t hold, for instance, that New Georgia had established that “no set of circumstances exists under USCA11 Case: 22-14302 Document: 57-1 Date Filed: 07/08/2024 Page: 17 of 30

22-14302 Opinion of the Court 17 which the Act would be valid,” United States v. Salerno, 481 U.S. 739, 745 (1987); rather, in granting preliminary injunctive relief, the dis- trict court merely held that the Act was “overbroad.” Cf. Butler v. Alabama Jud. Inquiry Comm’n¸ 245 F.3d 1257, 1265 (11th Cir. 2001) (declining to find the flagrantly-and-patently-unconstitutional ex- ception satisfied where a provision was alleged to create a “chilling effect” on protected speech).

Finally, although it doesn’t label it as such, New Georgia seems to suggest that this case fits within an exception to Younger that permits a federal court to exercise jurisdiction even in the face of an ongoing state proceeding if there is evidence that the state action was instituted in “bad faith.” 401 U.S. at 53–54. In particular, New Georgia contends that the Attorney General’s decision to transfer the state case to OSAH the day before filing its preliminary- injunction response in federal court bore the “hallmarks of an at- tempt to shore up [its] litigation position.” Br. of Appellee at 6–7 (quoting Doc. 31 at 22). Abstaining here, New Georgia says, would “‘risk creating an expansive reverse removal power,’ giving state offi- cials ‘broad discretion to remove federal civil rights actions to state criminal court on a routine basis, even after the plaintiff had in- vested precious time and resources to bringing the federal litiga- tion.’” Id. at 23 (quoting For Your Eyes Alone, 281 F.3d at 1219).

The procedural history here, we think, actually indicates the opposite. The Attorney General’s transfer of the state civil-enforce- ment proceeding to OSAH didn’t come out of left field, as one might expect of a bad-faith effort to scuttle a civil-rights plaintiff’s USCA11 Case: 22-14302 Document: 57-1 Date Filed: 07/08/2024 Page: 18 of 30

18 Opinion of the Court 22-14302 choice of a federal forum. To the contrary, the state had been in- vestigating New Georgia for years and recommended enforcement weeks before New Georgia filed its federal suit. The evidence here gives rise to no compelling inference that the state was strategically seeking to evade federal-court jurisdiction; rather, the state seems simply to have been pursuing its enforcement action in the normal course, from investigation to prosecution. * * * In sum, we conclude that we are bound by existing prece- dent to conclude that the district court was required to abstain be- cause no “proceedings of substance on the merits” had occurred in federal court before the state formally commenced its enforcement action.

IV Because we hold that the district court abused its discretion by refusing to abstain here, we needn’t address the merits of New Georgia’s First Amendment challenge or the appropriateness of a preliminary injunction. Instead, we VACATE the district court’s USCA11 Case: 22-14302 Document: 57-1 Date Filed: 07/08/2024 Page: 19 of 30

22-14302 Opinion of the Court 19 decision and REMAND with instructions that it dismiss New Geor- gia’s action.

VACATED and REMANDED.

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ROSENBAUM, Circuit Judge, concurring: Younger abstention has always had a First Amendment prob- lem. See Younger v. Harris, 401 U.S. 37 (1971). And for more than fifty years, we have brushed off this problem—in part because prin- ciples of federalism weigh heavily in favor of abstention and in part because it was thought that the rights that litigants have asserted were insufficient to overcome that institutional concern.

But our conception of our First Amendment rights has changed dramatically since Younger issued. Indeed, we view few rights to be as critical as the right that New Georgia Project asserts here—the right to engage in political speech around an election.

Younger, too, has evolved. Today’s decision makes clear that states may use Younger, purposely or inadvertently, to prevent those who seek to exercise their right to engage in core political speech from meaningfully doing so. It is time to reconsider just how far Younger abstention should extend.

I.

At bottom, Younger abstention is a contest between two com- mitments: federal respect for state-court proceedings and federal protection of individual constitutional rights. The Younger decision resolves that tension against the constitutional right.

In Younger, four plaintiffs filed a federal lawsuit to enjoin Cal- ifornia from enforcing its Criminal Syndicalism Act. Younger, 401 U.S. at 38–40 & n.1. The lead plaintiff, John Harris, had been charged with two violations of the law for distributing leaflets and USCA11 Case: 22-14302 Document: 57-1 Date Filed: 07/08/2024 Page: 21 of 30

2 ROSENBAUM, J., Concurring 22-14302 asked for the courts to enjoin the district attorney from prosecut- ing him on the ground that “the prosecution and even the presence of the Act inhibited him in the exercise of his rights of free speech and press.” Id. at 39. Three other plaintiffs intervened, with two plaintiffs arguing that Harris’s prosecution inhibited their member- ship in the Progressive Labor Party and one plaintiff arguing that the prosecution “made him uncertain” that he could teach about Karl Marx or read the Communist Manifesto. Id. at 39–40.

Younger wasn’t the first federal challenge involving Califor- nia’s Criminal Syndicalism Act. In 1927, the Supreme Court had upheld the law’s constitutionality when it reviewed the criminal conviction of Anita Whitney, a political organizer who had helped found the Communist Labor Party of America. Whitney v. Califor- nia, 274 U.S. 357, 371–72 (1927), overruled by Brandenburg v. Ohio, 395 U.S. 444 (1969). The Supreme Court ruled that Whitney’s political activities constituted “a clear and present danger of substantive evil” and that the law was a valid use of the state’s police power. Id. at 374 (Brandeis, J., concurring). Whitney governed when Harris was indicted, when he challenged his indictment in the California state courts, when the state courts denied his petitions, and when he filed his federal lawsuit. See Harris v. Younger, 281 F. Supp. 507, 508–10, 516–17 (C.D. Cal. 1968), rev’d, 401 U.S. 37 (1971). But by the time the Supreme Court heard Younger, it had formally over- ruled Whitney and held that the government cannot constitution- ally punish this sort of abstract advocacy. Brandenberg v. Ohio, 395 U.S. 444, 448–49 (1969) (per curiam) (reversing the conviction of a Ku Klux Klan leader under Ohio’s criminal syndicalism act).

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22-14302 ROSENBAUM, J., Concurring 3 Nevertheless, the Supreme Court tossed the suit. Younger, U.S. at 53–54. The Court held that Younger’s three intervenor- plaintiffs couldn’t maintain their challenge because their fear of criminal prosecution was “imaginary or speculative.” Id. at 42.

Stated simply, they came to federal court too soon. See id. But be- cause Harris waited until after his indictment to sue, the Supreme Court determined that he was too late. Id. at 54. Issuing relief would require interfering with a state criminal prosecution, and principles of equity, comity, and federalism commanded non-inter- ference, the Court reasoned. Id. at 50–54.

The Supreme Court also made clear its view that the right involved didn’t justify federal intervention. Id. It explained that, for a federal court to step in, “the threat to the plaintiff’s federally protected rights must be one that cannot be eliminated by his de- fense against a single criminal prosecution.” Id. at 46. But Harris’s injury was “solely ‘that incidental to every criminal proceeding brought lawfully and in good faith.’” Id. at 47 (citation and internal quotation marks omitted). In characterizing Harris’s injury in this way, the Supreme Court brushed off the “chilling effect” that crim- inal prosecutions usually have on First Amendment rights as an in- sufficient basis for interfering with state-criminal proceedings. See id. at 50–51.

II.

The Younger decision involved only one corner of the First Amendment. See Younger, 401 U.S. at 50–53. But New Georgia Pro- ject’s challenge concerns a markedly different space within the First USCA11 Case: 22-14302 Document: 57-1 Date Filed: 07/08/2024 Page: 23 of 30

4 ROSENBAUM, J., Concurring 22-14302 Amendment—the right to engage in political speech. But that’s not all—it involves the right to engage in political speech during an election. And even though we have long recognized that “not all speech is of equal First Amendment importance,” Hustler Mag., Inc. v. Falwell, 485 U.S. 46, 56 (1988) (quoting Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758 (1985)), only recently have we demanded the highest form of protection for this sort of polit- ical speech, see Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 349–50 (2010).

Historically, we afforded the government a wide berth in its regulation of political speech. For instance, we upheld restrictions on political speech because the government determined that this speech might interfere with its wartime powers. See Schenck v. United States, 249 U.S. 47, 52 (1919). We upheld restrictions on po- litical speech because the government determined that this speech might undermine the military and national security. See Debs v. United States, 249 U.S. 211, 216 (1919). And we upheld restrictions on political speech because the government determined that this speech might disturb the public peace or otherwise promote sub- version. See Gitlow v. New York, 268 U.S. 652, 667–68 (1925). In sum, our First Amendment jurisprudence traditionally accommodated the criminalization of political speech.

By the time that Younger came down, we understood that the First Amendment requires some level of judicial intervention against excessive government regulation. See, e.g., Cohen v. Califor- nia, 403 U.S. 15, 26 (1971) (holding an anti-military statement to be USCA11 Case: 22-14302 Document: 57-1 Date Filed: 07/08/2024 Page: 24 of 30

22-14302 ROSENBAUM, J., Concurring 5 protected speech). Indeed, less than a decade later, our jurispru- dence began to reflect a recognition that “[t]he loss of First Amend- ment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373–74 (1976) (citing New York Times Co. v. United States, 403 U.S. 713 (1971)).

Today, more than a half-century after Younger, we have flipped our traditional approach to political speech on its head. We now act with the understanding that political speech “is central to the meaning and purpose of the First Amendment.” Citizens United, 558 U.S. at 329 (citing Morse v. Frederick, 551 U.S. 393, 403 (2007)). “The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlight- ened self-government and a necessary means to protect it.” Id. at 339. Because speech is essential to democracy, the Constitution guarantees the right to speak on “all matters of public concern without previous restraint or fear of subsequent punishment,” Fed. Election Comm’n v. Wis. Right To Life, Inc., 551 U.S. 449, 469 (2007) (quoting First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 776 (1978))—especially when that speech bears on an election, Citizens United, 558 U.S. at 334 (explaining that speech is essential “to the integrity of the election process”).

Against this background, we opened up “breathing space” to accommodate more political speech. NAACP v. Button, 371 U.S. 415, 433 (1963). True, we continue to accept and uphold certain calcu- lated regulations of political speech, including the “unique and USCA11 Case: 22-14302 Document: 57-1 Date Filed: 07/08/2024 Page: 25 of 30

6 ROSENBAUM, J., Concurring 22-14302 complex rules” that the government imposes on campaign contri- butions and expenditures. Citizens United, 558 U.S. at 334. But we weigh the need for these and other regulations carefully against the potential that those restrictions will chill speech altogether. Cf. id. (“A speaker’s ability to engage in political speech that could have a chance of persuading voters is stifled if the speaker must first com- mence a protracted lawsuit.”).

In all, political speech in the election context merits the strongest protection, see, e.g., Ams. for Prosperity Found. v. Bonta, 594 U.S. 595, 608 (2021), and “must prevail against laws that would sup- press it, whether by design or inadvertence,” Citizens United, 558 U.S. at 340.

III.

Despite our commitment elsewhere to protecting political speech, today’s decision illustrates that Younger has evolved, by in- advertence, to suppress that speech. Cf. id. at 351 (explaining that corporations do not forfeit their First Amendment rights because states confer other advantages on them).

Let’s begin, as Younger does, with the breadth of state en- forcement actions that might trigger abstention. On Younger’s face, federal courts must defer to state proceedings under “exceptional circumstances.” New Orleans Pub. Serv., Inc. v. Council of City of New Orleans (“NOPSI”), 491 U.S. 350, 368 (1989). Younger has strayed far from that ideal. Despite originating from a concern for federal re- spect for state criminal prosecutions, Younger, 401 U.S. at 53, the doctrine now applies to quasi-criminal state proceedings, see USCA11 Case: 22-14302 Document: 57-1 Date Filed: 07/08/2024 Page: 26 of 30

22-14302 ROSENBAUM, J., Concurring 7 Huffman v. Pursue, Ltd., 420 U.S. 592, 594 (1975); state proceedings involving the enforcement of state-court orders and judgments, see Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 13–14 (1987); and quasi-judicial state administrative proceedings, see Ohio Civil Rights Comm’n v. Dayton Christian Sch., Inc., 477 U.S. 619, 627 (1986). In short, so long as some state regulatory body initiates a proceeding that “declares and enforces liabilities,” NOPSI, 491 U.S. at 370 (quoting Prentis v. Atl. Coast Line Co., 211 U.S. 210, 226 (1908)), the state can prevent any regulated entity from seeking federal-court protection of its right to political speech.

Next, the Younger inquiry. Younger abstention, like all other abstention doctrines, arises from the “historic powers” that federal courts possess as “court[s] of equity” to decline to hear cases. Fair Assessment in Real Estate Ass’n, Inc. v. McNary, 454 U.S. 100, 120 (1981) (Brennan, J., concurring). Younger therefore got its start as a weighing of “the circumstances of the present case” against long- standing principles of equity, comity, and federalism. Younger, 401 U.S. at 49. But it has morphed into a mechanical rule that requires federal courts to abstain if three less-than-revealing conditions are met: the state proceeding (1) is “ongoing,” (2) “implicate[s] im- portant state interests,” and (3) provides “an adequate opportunity . . . to raise constitutional challenges.” Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982).

This checklist confines our discretionary authority to exer- cise or decline jurisdiction; so long as the state ensures that its en- forcement proceeding satisfies the three Middlesex factors, federal USCA11 Case: 22-14302 Document: 57-1 Date Filed: 07/08/2024 Page: 27 of 30

8 ROSENBAUM, J., Concurring 22-14302 plaintiffs must go through state proceedings, administrative and ju- dicial, before they can go to federal court. See Aaron R. Petty, Mat- ters in Abatement, 11 J. App. Prac. & Process 137, 161 (2010). And as our decision today shows, in only the rarest of cases will the state leave a box unchecked.

The first Middlesex factor should present the strongest obsta- cle to abstention. See Middlesex, 457 U.S. at 432. As the majority explains, the state satisfies this factor if it begins its enforcement action “before any proceedings of substance on the merits have taken place in federal court.” Hicks v. Miranda, 422 U.S. 332, 349 (1975). This means a state can block federal litigation by initiating an enforcement action and “removing” the case to a state forum.

See Bryce M. Baird, Comment, Federal Court Abstention in Civil Rights Cases: Chief Justice Rehnquist and the New Doctrine of Civil Rights Abstention, 42 Buff. L. Rev. 501, 531 (1994). To avoid Younger, then, potential federal plaintiffs must file their complaints the mo- ment they have a credible threat of enforcement and must litigate quickly before the state actually begins its enforcement action. See KVUE, Inc. v. Moore, 709 F.2d 922, 928 (5th Cir. 1983). And even if federal plaintiffs rush to file, federal courts, too, must rush to hold hearings, issue rulings, and conduct their business, whatever the cost, before the state enforcement authority steps in.

Plus, even if potential federal plaintiffs quickly file their ac- tion before enforcement action commences, they run the risk of being kicked out of federal court because the federal court deems their alleged enforcement threat too speculative. See Younger, 401 USCA11 Case: 22-14302 Document: 57-1 Date Filed: 07/08/2024 Page: 28 of 30

22-14302 ROSENBAUM, J., Concurring 9 U.S. at 42. So hitting that Goldilocks sweet spot between too early and too late is nearly impossible for a potential federal plaintiff who wishes to challenge enforcement of a law against them.

Not only that, but a state authority will almost always satisfy the remaining Middlesex factors. The second Middlesex factor—that the state proceeding implicates important state interests—invaria- bly weighs in favor of abstention. See Middlesex, 457 U.S. at 432. So far, we have determined that the state’s interest is sufficiently im- portant if it concerns crime, education, family relations, public health, property, and corporations. See Harper v. Pub. Serv. Comm’n of W. Va., 396 F.3d 348, 352–53 (4th Cir. 2005). Indeed, it is hard to imagine what state interest is so insignificant that we “would disre- gard the comity between the States and the National Govern- ment,” Pennzoil Co., 481 U.S. at 11, for it and effectively rule that the state is engaged in unimportant business.

The third Middlesex factor—that the state proceeding pro- vides an adequate opportunity to raise federal defenses—is simi- larly toothless. See Middlesex, 457 U.S. at 432. It is well established that state administrative proceedings satisfy this requirement even if federal plaintiffs must wait until after the administrative body is- sues an adverse decision to raise their defenses in a state-court ap- peal. See Ohio Civil Rights Comm’n, 477 U.S. at 629. In practice, this means that parties who want to vindicate their First Amendment right to speak may have to wait years before any institution consid- ers that right.

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10 ROSENBAUM, J., Concurring 22-14302 Take New Georgia Project as an example. It first asserted its First Amendment rights in 2019 when the Commission issued a subpoena for its financial records. But neither the Commission nor the Georgia state courts considered the merits of New Georgia’s First Amendment claim in the three years between that subpoena and the start of this suit. And now we are forced to abstain under Younger. So New Georgia Project must wait even longer before any institution considers its right to engage in core political speech— during an election, no less!

The effect of this is that states may silence their critics and those whose speech they do not like, and they may do so for years, while election after election proceeds. And federal courts can do nothing about it. This is so even though the Supreme Court has recognized “that the public begins to concentrate on elections only in the weeks immediately before they are held.” Citizens United, 558 U.S. at 334. So “[t]here are short timeframes in which speech can have influence.” Id. Yet “[a] speaker’s ability to engage in po- litical speech that could have a chance of persuading voters is stifled if the speaker must first [participate in] a protracted lawsuit.” Id. That is certainly the case if the state can make an election speaker exhaust the state process before a federal court can even consider the speaker’s claim that the state law or action violates the speaker’s First Amendment rights. While a state’s “regulatory scheme may not be a prior restraint on speech in the strict sense of that term,” id. at 335, it effectively operates as one—interfering with the speaker’s ability to engage in political speech while the proceedings remain pending.

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22-14302 ROSENBAUM, J., Concurring 11 Finally, although Younger has left open the door to federal court in “extraordinary circumstances,” Younger, 401 U.S. at 53–54; experience shows us that this safety valve offers no help. Since ar- ticulating this exception to Younger, the Supreme Court has never once found that a state initiated a prosecution in bad faith or that a state law is “flagrantly and patently” unconstitutional. Edwin Chemerinksy, Federal Jurisdiction 908–09 (7th ed. 2016).

In short, Younger has evolved to allow states to impose a state-exhaustion requirement on those trying to exercise core First Amendment rights. Perhaps we are meant to just put up with this result in the large majority of cases. But see, e.g., Patsy v. Bd. of Re- gents, 457 U.S. 496, 516 (1982). But in cases like this one, when the federal plaintiff seeks to vindicate its right to engage in political speech during election time, Younger silences that plaintiff—ironi- cally in the name of federalism. In my view, it is time for the Younger doctrine to be reexamined.