Can the government force you to take a class before you are allowed to exercise your First Amendment rights? If the answer seems obvious, you might be surprised to learn that Alabama law requires exactly that for a huge range of people who want to do nothing more than pick up the phone and call elected officials.
Consider the case of Maggie Ellinger-Locke, legislative counsel for the Marijuana Policy Project, a nonprofit organization founded in 1995 that advocates nationwide for reforming marijuana laws. As part of her job, Maggie talks with legislators in 11 states, including Alabama, giving advice and recommendations on ways that state marijuana policy can be improved.
That may sound like ordinary political advocacy, but it falls within Alabama’s sweepingly broad definition of “lobbying.” As a result, if Maggie makes even a single phone call to an Alabama legislator to discuss marijuana policy, she must register as a lobbyist and attend an in-person ethics class held only four times a year—and only in Montgomery, Alabama.
Unfortunately for Maggie, she does not live anywhere near Montgomery—she lives 800 miles away in Arlington, Virginia, and works in Washington, D.C., where the Marijuana Policy Project is headquartered. Astonished that the Alabama Ethics Commission could actually expect her to make that trip before she was allowed to speak to elected officials, Maggie asked the Commission if she could get some kind of accommodation that would allow her to take the ethics class online, but the Commission refused.
Maggie is not the only person affected by this policy. More than 15 percent of lobbyists registered in Alabama in 2016 were from outside the state, and about half are from outside Montgomery. On average, lobbyists have to travel over 130 miles to attend their mandatory ethics training.
There is absolutely no justification for this policy. In fact, although municipal mayors, council members and commissioners, county commissioners and members of any local board of education are required to take similar training, that program may be conducted online. Many public employees are also required to satisfy a training program, which is also offered online or on DVD.
That is why Maggie and the Marijuana Policy Project are fighting back. They have joined with IJ and on August 31 filed a First Amendment challenge in federal court to Alabama’s unconstitutional training requirement for lobbyists. Along with the complaint, IJ has filed a motion for preliminary injunction, asking the court to allow Maggie and MPP to begin speaking in Alabama immediately.
The right to talk to government officials about matters of public policy is so fundamental that it is protected by two different provisions of the First Amendment: the Free Speech Clause and the Petition Clause. And just as the government cannot force people to take classes before they are allowed to lead parades or give public speeches, it cannot force people to take a class before they are allowed to exercise their First Amendment rights to talk to government officials. Instead, if a person wants to talk to an elected official about a matter of public policy, the only thing she should need is an opinion.