Stilp v. Contino
629 F. Supp. 2d 449, 2009 U.S. Dist. LEXIS 54547, 2009 WL 1842087 (2009)
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Rule of Law:
A state law that imposes a content-based, blanket prohibition on speech regarding alleged governmental misconduct, such as disclosing the filing of an ethics complaint, violates the First Amendment unless it is narrowly tailored to serve a compelling government interest and is the least restrictive means available.
Facts:
- Gene Stilp, a citizen activist, became aware of allegations that Representative William DeWeese's office was improperly using state funds for political polling.
- In November 2007, Stilp prepared a formal complaint to be filed with the Pennsylvania State Ethics Commission ('Commission') regarding the allegations.
- Before filing the complaint, Stilp issued a press release announcing his intention to file it and attached a copy of the unfiled complaint.
- Hours after issuing the press release, Stilp formally filed the complaint with the Commission.
- The Commission summarily dismissed Stilp's complaint against DeWeese the following day.
- Subsequently, the Commission initiated an investigation into Stilp for violating § 1108(k) of the Ethics Act by publicly disclosing his intent to file a complaint.
- On October 16, 2008, Stilp entered into a consent decree with the Commission, admitting to the violation and paying a $500 fine to avoid further criminal sanctions.
- Stilp wishes to file ethics complaints in the future and publicly disclose them but is deterred by the threat of prosecution under § 1108(k).
Procedural Posture:
- Gene Stilp filed a complaint and a motion for a preliminary injunction in the U.S. District Court for the Middle District of Pennsylvania.
- The suit was brought against John Contino, the Executive Director of the State Ethics Commission, and Thomas Corbett, Jr., the state Attorney General, in their official capacities.
- Stilp claimed that § 1108(k) of the Pennsylvania Ethics Act violates the First Amendment on its face and as applied.
- The district court held an evidentiary hearing on the motion for a preliminary injunction and the parties submitted supplemental briefing.
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Issue:
Does § 1108(k) of the Pennsylvania Public Official and Employee Ethics Act, which makes it a crime for a person to disclose that they have filed or will file an ethics complaint with the State Ethics Commission, violate the First Amendment's guarantee of freedom of speech?
Opinions:
Majority - Conner, J.
Yes, § 1108(k) of the Pennsylvania Public Official and Employee Ethics Act likely violates the First Amendment because it is a content-based restriction on core political speech that is not narrowly tailored to serve a compelling state interest. The court found that the plaintiff, Stilp, demonstrated a reasonable probability of success on the merits of his First Amendment challenge. The statute penalizes speech based on its content—specifically, whether an individual discloses that an ethics complaint has been filed. Therefore, it is subject to strict scrutiny, requiring it to be the least restrictive means to achieve a compelling government interest. The state asserted several justifications, including preventing election manipulation, retaliation, and interference with investigations. While some of these interests are compelling, the statute's blanket prohibition on disclosure is not narrowly tailored. For instance, less restrictive means like time-based restrictions before elections, existing civil tort remedies for defamation, or criminal statutes against obstruction of justice could achieve the state's goals without imposing a complete ban on speech critical of public officials. Because the statute is overbroad and not the least restrictive means, it is unlikely to survive constitutional scrutiny.
Analysis:
This decision reinforces the high constitutional protection afforded to speech concerning public officials and governmental conduct. By applying strict scrutiny, the court signals that broad confidentiality or 'gag' rules in state ethics laws are constitutionally vulnerable. The ruling establishes that the government cannot justify a blanket ban on speech by citing potential harms when less restrictive alternatives exist, such as time-limited restrictions or reliance on other civil and criminal laws. This case provides a strong precedent for challenging similar statutes that chill public discourse and accountability by shielding ethics complaint processes from public view.
