Alabama Right to Petition

Alabama prohibits nonprofit worker from speaking and petitioning the government unless she first flies to Alabama to take a government-mandated ethics class

Can Alabama condition your exercise of First Amendment rights on classroom attendance? That’s the question raised by a First Amendment challenge to an unusual Alabama law that required all registered lobbyists to physically attend an ethics class offered only four times a year—and only in Montgomery, Alabama.

When people think “lobbyist,” someone like Maggie Ellinger-Locke isn’t the first thing to spring to mind. Maggie is legislative counsel at the Marijuana Policy Project (MPP), a nonprofit organization dedicated to promoting reform of state and federal marijuana policy. As part of her duties, she monitors legislative activity in 11 states, and often talks with state lawmakers about ways they could improve their laws. In Alabama, that was enough to make her a “lobbyist” and to make her subject to all of Alabama’s lobbying regulations, including the requirement that she physically attend an ethics class in Montgomery.

That law presented a major problem because Maggie doesn’t live anywhere near Montgomery. She lives nearly 800 miles away in Arlington, VA, and works mainly out of MPP’s headquarters in Washington, D.C. And Maggie isn’t alone. Public records indicate that more than 15% of lobbyists registered in Alabama in 2016 lived outside the state and that all currently registered lobbyists live, on average, more than 130 miles from Montgomery. Yet under Alabama’s mandatory-training law, all these people were required to pick up and travel to Montgomery on a date set by the government, to listen to a government class about the laws regulating speech to members of the government.

That is why on August 31, 2016, Maggie Ellinger-Locke and MPP teamed up with the Institute for Justice (IJ) to challenge Alabama’s needlessly burdensome lobbying law.  In response to the lawsuit, the Alabama Ethics Commission surrendered: It dropped the requirement that lobbyists physically appear in Montgomery for training, agreeing that the training requirement can now be satisfied online.  Instead of physically traveling to Montgomery, speakers can simply live-stream the class or, in the event of a conflict, they can schedule a personal online training with the Ethics Commission.  So if you want to talk with lawmakers in Alabama in the future, you won’t need a plane ticket and a hotel reservation; you’ll just need a telephone and an opinion.

Alabama Right to Petition

Date Filed

August 31, 2016

Original Court

United States District Court for the Middle District of Alabama

Case Status

Closed

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Want to E-mail an Alabama Lawmaker?  Better Book a Flight to Montgomery As Well.

Maggie Ellinger-Locke is legislative counsel at the Marijuana Policy Project (MPP), a nonprofit organization founded in 1995 and based in Washington, D.C., that advocates for the reform of state and federal policy regarding marijuana. As part of her duties, Maggie is responsible for monitoring legislative developments in a number of states, including Alabama.

In light of recent changes to Alabama’s regulation of medical marijuana—most notably two recent laws that allow patients with certain seizure disorder to use some forms of marijuana oil—Maggie wants to communicate with Alabama lawmakers about ways that those laws can be improved. Since Maggie operates in the District of Columbia, she plans to communicate by e-mail or telephone.

But if Maggie makes even a single phone call to an Alabama elected official to discuss potential legislation, she will be considered a “lobbyist” under Alabama law. And to comply with Alabama’s lobbying law, Maggie would have to travel from D.C. to Montgomery within 90 days of qualifying as a lobbyist to attend a one-hour class on Alabama lobbying law.1 For Maggie, that’s an 800-mile trip that will easily cost hundreds of dollars.

On top of that, Maggie could be required to return to Montgomery for “additional mandatory training program[s]” whenever any changes are made to the lobbying law.2  The only recognized justification for not attending a mandatory training is “catastrophic illness.”3 And if Maggie fails to attend a training program, she “shall not be allowed to lobby the Legislature, Executive Branch, Judicial Branch, public officials, or public employees.”4 She could even be charged with a felony that carries up to $30,000 in fines or 20 years in jail.5

Alabama Ethics Commission: Yes, We Mean It.

Concerned about the effect that Alabama’s law would have on her speech, Maggie sent a request to the Alabama Ethics Commission―the agency in charge of lobbying regulation―asking whether the mandatory-training statute really requires someone who lives across the county to physically travel to Montgomery as the price of making a phone call or sending an email.  The Commission’s response? Absolutely.  “[T]here is no exclusion in the Ethics Law for de minimis lobbying when you are paid to do it,” the Commission said, “and no requirement that a certain percentage of time be devoted to lobbying to trigger the registration requirement beyond ‘regular and usual.’”6

The Commission also made clear that there was no getting around attending the class in person. Maggie asked the Commission if she could take the class remotely, explaining the “[t]he cost and time required for such a trip would likely exceed the total value of [her] work on Alabama matters, would take away from time for other work, and would thus be prohibitive.” But the Commission said that didn’t matter. The Commission acknowledged that the training law “places a burden on the individual desiring to register as a lobbyist.” Yet it said that “there are no exceptions to this mandatory training requirement” and no options to take the class remotely.7

Remarkably, while the Commission would require Maggie to travel to Montgomery for her ethics class, government employees and officials are permitted to take their ethics training online.8 And for those government employees who do not have reliable access to the Internet, the Commission goes a step further, volunteering to mail then “an Ethics Training DVD” upon request9

The First Amendment Protects Speakers from Needlessly Burdensome Speech Regulations.

Alabama’s mandatory, in-person ethics training for lobbyists isn’t just bad policy; it’s unconstitutional. The First Amendment protects the right to talk about government policy with government officials. Indeed, this right is so important that it is enshrined in two separate clauses of the First Amendment: the Free Speech Clause and the Petition Clause. And the government cannot burden First Amendment rights without making an extraordinary showing that those burdens are necessary.

Here, the government cannot possibly meet that standard. Nobody should have to take a government class before they’re allowed to exercise their First Amendment rights.  People don’t have to take classes before they’re allowed to lead parades. People don’t have to take classes before they’re allowed to give public speeches. And people shouldn’t have to take classes before they’re allowed to talk to government officials.

The First Amendment also prohibits the government from imposing requirements that are more burdensome than necessary, a standard the government clearly fails here. It doesn’t get much more burdensome than requiring someone in Washington, D.C., who talks to Alabama officials as part of their job to trek all the way to Montgomery, Alabama, on a specific date set by the government.10 Particularly when Alabama already offers online and DVD training options to government officials and employees, there is no justification for singling out lobbyists for this unique burden.

The Plaintiffs

The plaintiffs are Maggie Ellinger-Locke and the Marijuana Policy Project (MPP).

The Defendants

The defendants are the Alabama Attorney General, the Montgomery County District Attorney, and the members of the Alabama Ethics Commission, all of whom are sued in their official capacities.

The Claims

Alabama’s mandatory training law violates the Free Speech and Petition Clauses of the First Amendment to the U.S. Constitution.  The government doesn’t have the power to require citizens to take a government class before they’re allowed to exercise their First Amendment rights. And Alabama’s particularly burdensome in-person training requirement is an unnecessary―and unconstitutional―restraint on core political speech.

Legal Team

The litigation team consists of IJ Senior Attorney Paul Sherman and IJ Attorney Sam Gedge. David I. Schoen serves as local counsel.

The Institute for Justice

The Institute for Justice is the national law firm for liberty. IJ is a public-interest law firm that advances a rule of law under which individuals can control their destinies as free and responsible members of society. Through litigation, communication, outreach and strategic research, IJ secures protection for individual liberty and extends the benefits of freedom to those whose full enjoyment is denied by the government.

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