Dennis Fusaro v. Michael Cogan
930 F.3d 241 (2019)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
Although there is no general First Amendment right to access government information, when a state chooses to make information available that is a key instrument for political speech, such as a voter registration list, its speaker-based and content-based conditions on that access are subject to First Amendment scrutiny.
Facts:
- Dennis Fusaro, a Virginia resident and political consultant, worked on a political campaign in Anne Arundel County, Maryland in 2014.
- In 2016, Maryland State Prosecutor Emmett C. Davitt criminally charged Fusaro with violating state election laws in connection with the 2014 campaign.
- After being convicted in a bench trial, Fusaro was granted a new trial before a jury and was acquitted of all charges in August 2017.
- Following his acquittal, Fusaro sought to express his displeasure with Davitt by planning a letter campaign to registered Maryland voters urging them to seek Davitt's resignation.
- To facilitate his campaign, Fusaro applied to the Maryland State Board of Elections for a copy of the state's registered voter list.
- The Board rejected Fusaro's application because he was not a registered Maryland voter, a requirement under Maryland Election Law § 3-506.
- Section 3-506 also requires applicants to state under oath that the list will not be used for any purpose 'not related to the electoral process.'
Procedural Posture:
- Dennis Fusaro sued state officials in the U.S. District Court for the District of Maryland, challenging Maryland Election Law § 3-506.
- Fusaro's complaint alleged violations of the First and Fourteenth Amendments and sought declaratory and injunctive relief.
- Fusaro filed a motion for a preliminary injunction to bar enforcement of the law's voter-registration and use-restriction provisions.
- The defendants filed a motion to dismiss the complaint and opposed the preliminary injunction.
- The district court (court of first instance) granted the motion to dismiss and denied the injunction, ruling that Fusaro had no First Amendment right of access to the government information.
- Fusaro (appellant) appealed the dismissal to the U.S. Court of Appeals for the Fourth Circuit, with the state officials as appellees.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a state law that restricts access to a government-held voter registration list based on the requester's residency and the intended use of the information implicate the First Amendment's Free Speech Clause?
Opinions:
Majority - King, Circuit Judge
Yes. A state law restricting access to a government-held voter registration list based on speaker identity and content of speech implicates the First Amendment. While there is no general First Amendment right to access government information under Houchins v. KQED, this case is distinguishable. First, the voter list is a valuable tool for political speech, which receives the highest First Amendment protection. Second, the law imposes both speaker-based restrictions (access limited to Maryland registered voters) and content-based restrictions (use limited to the 'electoral process'), which are presumptively suspect. Third, Supreme Court precedent, particularly in L.A. Police Dep't v. United Reporting, indicates that even if there is no right of access, conditions on disclosure can transgress the First Amendment, especially if they risk viewpoint discrimination. Therefore, Fusaro has stated a cognizable First Amendment claim. The appropriate level of scrutiny is not strict scrutiny but the flexible balancing test from Anderson v. Celebrezze and Burdick v. Takushi, which is used for challenges to state election laws. The court remands for the district court to apply this balancing test.
Analysis:
This decision carves out a significant exception to the general rule that there is no First Amendment right to access government information. It establishes that once a government decides to disseminate information, especially a tool so closely intertwined with political speech as a voter list, the conditions it places on that dissemination are subject to constitutional scrutiny. By applying the Anderson-Burdick balancing test, the court provides a framework for analyzing such laws that respects a state's broad power to regulate elections while safeguarding against restrictions that could stifle political discourse. This precedent will likely impact how states draft and defend laws governing access to voter data, pushing them toward more politically neutral and reasonable restrictions.
