PR Firms Sue NY on New Lobbying Rule

Alexandria, VA – The Center for Competitive Politics (CCP), America’s largest nonprofit working to promote and defend First Amendment rights to free political speech, assembly, and petition announced that five public relations firms filed a lawsuit in federal court today seeking to block a new lobbying rule by the New York State Joint Commission on Public Ethics (JCOPE). That advisory opinion would force public relations professionals to register as lobbyists.

“JCOPE’s opinion is absurd, flagrantly unconstitutional, and a new low for one of the worst places in the country to express one’s opinion about government,” said Center for Competitive Politics President David Keating. “We’re hopeful the Court will quickly grant our clients relief from these vague and overbroad rules that will stifle important speech about government policies.”

The plaintiffs in the case include some of New York’s most prominent public relations firms of all ideological persuasions and sizes: The November Team, Inc., Anat Gerstein Inc., BerlinRosen Public Affairs, Ltd., Risa Heller Communications LLC, and Mercury LLC. The filings in the case include sworn declarations from three leading public relations trade associations: the Public Relations Society of America, PR Council, and Arthur W. Page Society.

Emery Celli Brinckerhoff & Abady LLP, a New York law firm, and the Center for Competitive Politics represent the plaintiffs. To read the complaint, the opening brief, and other key filings in the lawsuit, click here. The case is before the United States District Court for the Southern District of New York.

The unprecedented and widely-criticized JCOPE opinion became final in January and says in part that “a public relations consultant who contacts a media outlet in an attempt to get it to advance the client’s message in an editorial would also be delivering a message” that would count as lobbying and would trigger burdensome filings by PR firms as lobbyists.

Here are some excerpts from the opening brief in the case:

This case stands at the intersection of a citizen’s right to free speech, the press’s freedom to report and comment on such speech, and the narrow circumstances in which courts have upheld laws and rules that require the disclosure of lobbying activity. It raises the simple question whether a state agency can, consistent with the First Amendment, declare that private communications with the press constitute “lobbying,” and then mandate persons who so communicate to submit to a burdensome regulatory regime that exposes them to criminal prosecution or fines for non-compliance.

The answer, emphatically, is “no.”

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[JCOPE’s new ruling] mandates that anyone paid to communicate with reporters or editorial writers on matters that might implicate legislation, executive orders, or government procurements is a “lobbyist” and, as such, must comply with the same burdensome disclosure requirements, and risk the same draconian sanctions, as actual lobbyists. This expansive (indeed, nonsensical) definition of “lobbying,” which was created by administrative fiat, directly inhibits and chills the rights of public relations firms and their clients to participate in discussions of public matters with and in the press, to serve as anonymous sources to the press, and to exercise their core speech and associational rights free from government inspection or the threat of prosecution or sanction.

The lawsuit makes four main arguments that the rule violates both “the First Amendment and Due Process clause”:

First, the Opinion subjects public relations firms engaging in core political speech to a regulatory regime that requires public disclosure of associational interests, policy goals, and financial arrangements … where such firms have no direct contacts with government officials and make no effort to inveigle others to contact such officials…. The [U.S. Supreme Court] case law, including United States v. Harriss, … forbids the imposition of disclosure requirements in this context.

Second, the regulatory regime that the Opinion seeks to impose on plaintiffs and other PR professionals is profoundly burdensome and chilling in its effect…. [I[t also exposes PR firms (and, potentially, media outlets) to intrusive investigations and the risk of criminal and civil sanctions….

Third, the [JCOPE ruling] is overbroad, not narrowly tailored to its purported purpose, and unconstitutionally vague. In response to an inquiry about which press contacts, precisely, would trigger registration, the Commission’s Chair announced a policy of what can only be described as “we’ll know it when we see it….” The First Amendment and the Due Process Clause do not admit to such sloppy thinking, or to such cavalier threats of criminal prosecution….

Fourth, and finally, plaintiffs readily satisfy the requirements for a temporary restraining order and preliminary injunction. It is well-settled that intrusions on First Amendment speech rights constitute “irreparable harm” per se….

As the brief notes, “The Supreme Court and other courts created a ‘bright line’ rule concerning the regulation of lobbyists: Statutes that require disclosure of direct contact with public officials — either by way of ‘buttonhole’ lobbying or ‘grassroots’ lobbying [to artificially stimulate letter writing] — are constitutional, while statutes that reach further are presumptively unconstitutional.”  Instead of hewing to this precedent, the brief says that “In New York State, speaking to the press is now ‘lobbying.’ Speaking to editorial boards and reporters is now ‘lobbying.’ Influencing broad public opinion is now, improbably enough, ‘lobbying.'”

The brief cites United States v. Rumely, where the Supreme Court said “giving . . . the Government . . . the power to inquire into all efforts of private individuals to influence public opinion through books and periodicals, however remote the radiations of influence which they may exert upon the ultimate legislative process, raises doubts of constitutionality in view of the prohibition of the First Amendment.”

New York’s lobbying laws trigger burdensome reports, under threat of both civil and criminal penalties for noncompliance, which would chill speech. “In each year that a plaintiff is paid $5000 or more by a client, it would have to file at least six reports, each time specifying the exact terms of its employment and accounting for every penny spent in granular $75 increments. For three years, plaintiffs would have to retain thousands of receipts reflecting any expense of a mere $50 or more.  All of this information would be made available to public scrutiny. Plaintiffs would also have to pay fees to the government for the privilege of speaking with editorial boards.”