Robert Cahaly v. Paul LaRosa, III


PUBLISHED AUTHORED OPINION filed. Originating case number: 6:13-cv-00775-JMC. [999635478]. [14-1651, 14-1680]

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Appeal: 14-1651 Doc: 44 Filed: 08/06/2015 Pg: 1 of 21 PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-1651 ROBERT C. CAHALY, Plaintiff – Appellee, v. PAUL C. LAROSA, III; REGINALD I. LLOYD; SOUTH CAROLINA LAW ENFORCEMENT DIVISION, Defendants – Appellants. No. 14-1680 ROBERT C. CAHALY, Plaintiff – Appellant, v. PAUL C. LAROSA, III; REGINALD I. LLOYD; SOUTH CAROLINA LAW ENFORCEMENT DIVISION, Defendants – Appellees. Appeals from the United States District Court for the District of South Carolina, at Greenville. J. Michelle Childs, District Judge. (6:13-cv-00775-JMC) Argued: March 25, 2015 Decided: August 6, 2015 Appeal: 14-1651 Doc: 44 Filed: 08/06/2015 Pg: 2 of 21 Before WYNN, DIAZ, and THACKER, Circuit Judges. Affirmed in part, vacated in part, and remanded with instructions by published opinion. Judge Diaz wrote the opinion, in which Judge Wynn and Judge Thacker joined. ARGUED: Kenneth Paul Woodington, DAVIDSON & LINDEMANN, P.A., Columbia, South Carolina, for Appellants/Cross-Appellees. Samuel Darryl Harms, III, HARMS LAW FIRM, PA, Greenville, South Carolina, for Appellee/Cross-Appellant. ON BRIEF: Robert D. Cook, Solicitor General, OFFICE OF THE ATTORNEY GENERAL, Columbia, South Carolina; William H. Davidson, II, DAVIDSON & LINDEMANN, P.A., Columbia, South Carolina, for Appellants/CrossAppellees. 2 Appeal: 14-1651 Doc: 44 Filed: 08/06/2015 Pg: 3 of 21 DIAZ, Circuit Judge: Robert C. consultant, Carolina’s Cahaly, was a self-described arrested anti-robocall for Republican alleged statute. violations After the political of charges South were dismissed, Cahaly filed suit, challenging the statute on three First Amendment grounds: as an unlawful regulation of speech, as impermissibly vague. Cahaly officials compelling also involved speech, sought in his and damages arrest as from (and unconstitutionally the the law enforcement agency employing them), advancing claims under 42 U.S.C. § 1983 and state law for false imprisonment and malicious prosecution. Under the content-neutrality framework set forth in Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015), we find that the antirobocall statute is a content-based regulation that does not survive strict scrutiny. 1 We also hold that Cahaly lacks standing to bring compelled-speech and vagueness challenges, and that his other claims fail due to the presence of probable cause to arrest him. As a result, we affirm the district court’s judgment except for the compelled-speech claim, which we vacate and remand with instructions to dismiss it. 1 We received supplemental briefs from the parties on the import of Reed to the issues on appeal. 3 Appeal: 14-1651 Doc: 44 Filed: 08/06/2015 Pg: 4 of 21 I. A. In 1991, the statute regulating recorded messages, South Carolina automated General telephone calls “robocalls.” 2 or Assembly This enacted that a deliver statute places different restrictions on robocalls depending on whether they are (1) unsolicited and (2) made for consumer, political, or other purposes. By definition, it prohibits only those robocalls that are “for the purpose of making an unsolicited consumer telephone including, campaigns.” but not call” or limited are to, “of calls a political relating to nature political S.C. Code Ann. § 16-17-446(A). All qualifying robocalls are banned with three exceptions, based on the express or implied consent of the called party: (1) in response to an express request of the person called; (2) when primarily connected with an existing debt or contract, payment or performance of which has not been completed at the time of the call; (3) in response to a person with whom the telephone solicitor has an existing business relationship or has had a previous business relationship. Id. § 16-17-446(B). robocall must If “disconnect an exception immediately applies, when the the permitted called party hangs up”; must be made between 8:00 AM and 7:00 PM; and “may 2 The statute refers to robocalls as “Adad calls,” which stands for “automatically dialed announcing device.” S.C. Code Ann. § 16-17-446 (2014). 4 Appeal: 14-1651 not Doc: 44 ring at Filed: 08/06/2015 hospitals, Pg: 5 of 21 police stations, fire departments, nursing homes, hotels, or vacation rental units.” 446(C)(2)-(4). Some permitted robocalls must Id. § 16-17also disclose certain information to the called party: “(1) the identity of the seller; (2) that the purpose of the call is to sell goods or services; [and] (3) the nature of the goods or services.” Id. §§ 16-17-445(B)(1)-(3), -446(C)(1). Other statutory solicitors making provisions unsolicited contain consumer rules for telephone live calls. Solicitors must place their calls from 8:00 AM and 9:00 PM, make certain disclosures, and maintain a do-not-call list. Id. §§ 16-17-445(B)-(E). A offense. violation of the statute constitutes a misdemeanor Id. § 16-17-446(D) (cross-referencing § 16-17-445(F)). A first or second conviction carries a maximum punishment of a $200 fine or 30 days in prison while a third or later conviction carries a fine of $200 to $500 or the same maximum 30 days’ imprisonment. Id. B. On September 23, 2010, Cahaly allegedly placed robocalls in six South Carolina house legislative districts. With the name changed to reflect the Democratic candidate in each district, the calls’ prerecorded message said: Please hold for a one-question survey. 5 Appeal: 14-1651 Doc: 44 Filed: 08/06/2015 Pg: 6 of 21 As you may have heard, Speaker of Pelosi is coming to South Carolina. the House Nancy Do you think incumbent Democrat Anne Peterson Hutto should invite her fellow Democrat Nancy Pelosi to come campaign for her? Press 1 if you think incumbent Democrat Anne Peterson Hutto should invite her fellow Democrat Nancy Pelosi to come and campaign for her. Press 2 if you think incumbent Democrat Anne Peterson Hutto should not invite her fellow Democrat Nancy Pelosi to come and campaign for her. J.A. 219-20. About one week before the calls were placed, an attorney with the South Carolina Office of the Attorney General told Cahaly that the anti-robocall statute did not cover “automated telephone survey polls of a political nature.” J.A. 74. The attorney encouraged him to ask a member of the state House of Representatives to seek a written opinion to that effect. representative issued a made letter, that the day request, and before Cahaly the Attorney made the General robocalls, stating: In the opinion of this office, organizations, such as Survey USA, may routinely conduct automated survey telephone calls for political purposes in this State that require the recipient’s responses via a phone key. The purpose of the ADAD law is to prohibit the unwarranted invasion by automated dialing devices in order to promote advocacy of a “product” including a particular candidate. Thus, as long as these polling calls, even if they are of a political nature, do not advocate a particular political candidate but simply 6 A Appeal: 14-1651 Doc: 44 Filed: 08/06/2015 Pg: 7 of 21 obtain a “snapshot” opinion of a voter, they may be made. J.A. 83. The day after Cahaly placed the robocalls, an incumbent seeking reelection in one of the targeted districts wrote to the South Carolina Law Enforcement Division (“SLED”) reporting that her constituents had received telephone calls that violated the anti-robocall statute. Over the next three weeks, Democratic candidates in the other five districts also reported to SLED that their constituents had received the same calls using their names. On November 1, 2010, a state magistrate judge issued six warrants--one for each targeted district--for Cahaly’s arrest. The election was held November 2. That same day, SLED issued a press release announcing the warrants. turned himself in, recognizance. The was booked, warrants and were was On November 3, Cahaly released dismissed on his eighteen own months later. C. Cahaly filed a complaint in state court against SLED; Paul C. LaRosa, III, a special agent with SLED who completed the arrest warrant applications; and Reginald I. Lloyd, the director of SLED at the “Defendants”). time Cahaly of Cahaly’s sought a 7 arrest (collectively, declaration that the the anti- Appeal: 14-1651 Doc: 44 robocall Filed: 08/06/2015 statute was Pg: 8 of 21 unconstitutional and prohibiting the Defendants from enforcing it. an injunction He also alleged a damages claim under 42 U.S.C. § 1983 and state law claims for false imprisonment and malicious prosecution. The Defendants removed the case to federal court. Cahaly moved for partial summary judgment on his claim for declaratory and injunctive relief. The Defendants moved for summary judgment on all claims. The district court granted Cahaly’s motion, declared the anti-robocall statute unconstitutional, and issued a permanent injunction barring enforcement of the statute. The district court concluded that the statute was a content-based restriction on speech and applied strict scrutiny. court found the underinclusiveness statute and Under that rubric, the unconstitutional its singling out due of to “its commercial and political speech” when the asserted government interest was to eliminate nearly all robocalls to protect residential privacy. Cahaly v. LaRosa, 25 F. Supp. 3d 817, 827 (D.S.C. 2014). court also robocalls determined to that disclose unconstitutional as the statutory certain compelled provision identifying speech, but requiring information that The Cahaly was lacked standing to bring his vagueness challenge. The district court awarded Defendants on Cahaly’s other claims. 8 summary judgment to the The court held that LaRosa Appeal: 14-1651 and Doc: 44 Lloyd Filed: 08/06/2015 were entitled to Pg: 9 of 21 qualified immunity on the § 1983 claim because the right at issue was not clearly established. The court also held that the existence of probable cause to arrest Cahaly defeated his false imprisonment and malicious court’s judgment prosecution claims. The Defendants appeal granting declaratory and the district injunctive relief. Cahaly cross- appeals the district court’s judgment on his damages claims. review de novo the district court’s order granting judgment and its ruling that a party lacks standing. We summary Brown v. Town of Cary, 706 F.3d 294, 300 (4th Cir. 2013). II. We begin with Cahaly’s First Amendment claim. First, we consider whether the anti-robocall statute is a content-neutral restriction on speech subject to intermediate scrutiny or a content-based restriction that must withstand strict scrutiny. We then provision turn to whether constitutes the compelled Cahaly’s vagueness challenge. the statute is statute’s content speech. mandatory Lastly, disclosure we reach As explained below, we hold that based and does not survive strict scrutiny, and that Cahaly lacks standing to bring his compelledspeech and vagueness challenges. 9 Appeal: 14-1651 Doc: 44 Filed: 08/06/2015 Pg: 10 of 21 A. The Supreme Court recently clarified the content-neutrality inquiry in the First Amendment context. In Reed, the Court explained that “the crucial first step in the content-neutrality analysis” is to “determin[e] whether the law is content neutral on its face.” facially 135 S. Ct. at 2228. content-neutral law will At the second step, a still be categorized as content based if it “cannot be ‘“justified without reference to the content of the regulated speech,”’ or . . . adopted by the government ‘because speech] conveys.’” of disagreement with the message [the Id. at 2227 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)). This formulation conflicts with, and therefore abrogates, our previous descriptions of content neutrality in cases such as Brown v. Town of Cary. is ‘justified speech,’ [that] without See 706 F.3d at 303 (“[I]f a regulation reference [citation omitted] regulation content differentiates between ‘we to the have neutral types of content not hesitated even speech.’”) of if it (quoting regulated to deem facially Wag More Dogs, Ltd. Liab. Corp. v. Cozart, 680 F.3d 359, 366 (4th Cir. 2012) (last alteration in original)). that, when government’s conducting purpose the is Our earlier cases held content-neutrality the controlling inquiry, “[t]he consideration.” Clatterbuck v. City of Charlottesville, 708 F.3d 549, 555 (4th 10 Appeal: 14-1651 Doc: 44 Filed: 08/06/2015 Pg: 11 of 21 Cir. 2013) (quoting Ward, 491 U.S. at 791). But Reed has made clear that, at the first step, the government’s justification or purpose in enacting the law is irrelevant. 135 S. Ct. at 2228- 29. Applying Reed’s first step, we find that South Carolina’s anti-robocall statute is content based because it makes content distinctions on its face. regulation of speech is Reed instructs that “[g]overnment content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.” 135 S. Ct. at 2227. Here, the anti- robocall statute applies to calls with a consumer or political message but does not reach calls made for any other purpose. Because of these facial content distinctions, we do not reach the second step to consider the government’s regulatory purpose. See id. at 2228 (“[A]n innocuous justification cannot transform a facially content-based law into one that is content neutral.”) As a content-based regulation of speech, the anti-robocall statute is subject to strict scrutiny. standard, furthers the a government compelling achieve that interest.” must interest Id. at 2231. prove and is “that the narrowly Under this restriction tailored to Id. (quoting Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806, 2817 (2011)). “If a less restrictive alternative would serve the [g]overnment’s purpose, the legislature must use that alternative.” 11 United Appeal: 14-1651 Doc: 44 Filed: 08/06/2015 Pg: 12 of 21 States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813 (2000). Moreover, the restriction “unnecessarily cannot be circumscrib[ing] overinclusive protected by expression,” Republican Party of Minn. v. White, 536 U.S. 765, 775 (2002) (quoting Brown underinclusive v. Hartlage, by 456 “leav[ing] U.S. 45, 54 appreciable (1982)), damage to or [the government’s] interest unprohibited,” Reed, 135 S. Ct. at 2232 (quoting White, 536 U.S. at 780). The asserted government interest here is to protect residential privacy and tranquility from unwanted and intrusive robocalls. the Assuming that interest is compelling, we hold that government statute is has failed narrowly restrictive to prove tailored alternatives to that serve include the it. anti-robocall Plausible time-of-day less limitations, mandatory disclosure of the caller’s identity, or do-not-call lists. See Maryland v. Universal Elections, Inc., 729 F.3d 370, 376 (4th Cir. 2013) (evaluating the federal Telephone Consumer Protection Act’s identity disclosure requirement); Nat’l Fed’n of the Blind v. F.T.C., 420 F.3d 331, 333-34 (4th Cir. 2005) (examining a federal regulation that “requires callers to make certain disclosures, refrain from making late-night, early- morning, and ‘abandoned calls’ (calls followed by silence), and comply with Minnesota, 59 a . . . F.3d ‘do-not-call 1541, 1551 12 (8th list’”); Cir. Van 1995) Bergen v. (considering Appeal: 14-1651 Doc: 44 Filed: 08/06/2015 Pg: 13 of 21 Minnesota’s ban on robocalls from 9 PM to 9 AM). The government has offered no evidence showing that these alternatives would not be effective in achieving its interest. In addition, the record contains evidence that the antirobocall statute is overinclusive. The Defendants themselves cite to a report from a U.S. House of Representatives committee that concluded, “Complaint statistics show that unwanted commercial calls are a far bigger problem than unsolicited calls from political or charitable organizations.” at 16 (1991). At H.R. Rep. 102-317, Yet the statute also targets political calls. the same time, the statute suffers from underinclusiveness because it restricts two types of robocalls-political and consumer--but permits “unlimited proliferation” of all other types. Reed, 135 S. Ct. at 2231; see id. (“The Town cannot claim that placing strict limits on temporary directional signs is necessary to beautify the Town while at the same time allowing unlimited numbers of other types of signs that create the same problem.”). Because the statute does not pass muster under strict scrutiny, we affirm the district court’s judgment declaring it unconstitutional. B. Turning robocalls are to Cahaly’s permitted compelled-speech because 13 they fall challenge, within one of if the Appeal: 14-1651 three Doc: 44 Filed: 08/06/2015 exceptions listed in Pg: 14 of 21 Section 16-17-446(B), then the statute requires those calls to disclose “(1) the identity of the seller; (2) that the purpose of the call is to sell goods or services; [and] (3) the nature of the goods or services.” Code Ann. § 16-17-446(C)(1) 445(B)(1)-(3)). disclosures (cross-referencing S.C. § 16-17- The district court ruled that these mandatory unconstitutionally compel speech. The Defendants contend this ruling is in error due to the absence of a case or controversy, a jurisdictional prerequisite under Article III of the U.S. Constitution. One requirement We agree. of Article III standing plaintiff suffer an “injury in fact.” Driehaus, 134 S. Ct. 2334, is that the 2341 Susan B. Anthony List v. (2014) (quoting Defenders of Wildlife, 504 U.S. 555, 560 (1992)). Lujan v. While “actual arrest or prosecution” for violating a statute establishes an injury in fact, Steffel v. Thompson, 415 U.S. 452, 459 (1974), so too may a “credible threat of prosecution thereunder.” Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979). As violating despite the Defendants Section the note, Cahaly 16-17-446(C)(1), affidavits submitted the to was not charged disclosure the with provision, magistrate judge alleging that Cahaly’s robocalls “failed to promptly disclose in a clear and conspicuous manner to the receiver of the call the 14 Appeal: 14-1651 Doc: 44 Filed: 08/06/2015 Pg: 15 of 21 identity of the originating party, endorsement of a candidate and or [sic] the nature of the call.” was charged which ban solely with political violating robocalls J.A. 237-42. Sections Rather, he 16-17-446(A)-(B), outright. In addition, the affidavits do not allege any facts about Cahaly’s relationship to the called parties, but the called parties’ express or implied consent to being called is a necessary condition for the disclosure provision 446(B)-(C). faces to apply. See S.C. Code Ann. § 16-17- Thus, federal jurisdiction hinges on whether Cahaly “sufficiently imminent” future arrest or prosecution. Driehaus, 134 S. Ct. at 2342. The record contains no evidence prerequisite to federal jurisdiction. to support this In a declaration, Cahaly explains his “desire to conduct telephone survey polls in the future in the State of South Carolina of a political nature and telephone calls related to political campaigns.” J.A. 73. But never does he allege his intention to make robocalls permitted by the statute, and therefore subject to the disclosure provision, by falling within one of the Section 16-17-446(B) exceptions. As a result, Cahaly lacks standing disclosure provision as compelled speech. to challenge the We therefore vacate the district court’s judgment on this claim, and remand with instructions to dismiss it. 15 Appeal: 14-1651 Doc: 44 Filed: 08/06/2015 Pg: 16 of 21 C. Regarding Cahaly’s vagueness challenge, the district court ruled that he lacked standing to press it. We agree. “One to whose conduct a statute clearly applies may not successfully challenge it for vagueness.” U.S. 733, 756 (1974). Cahaly argues Parker v. Levy, 417 that the anti-robocall statute does not clearly apply to him because he made survey calls. But he does not dispute that his robocalls were also “of a political nature,” a category to which the statute expressly applies. S.C. Code Ann. § 16-17-446(A). Because the statute squarely covers Cahaly’s calls, we affirm the district court’s judgment dismissing his vagueness challenge. III. We turn to Cahaly’s cross-appeal of his § 1983 and state law claims. Because we find that probable cause supported his arrest for violating the anti-robocall statute, we affirm the district court’s grant of summary judgment to the Defendants. A. Cahaly alleges that LaRosa and Lloyd violated § 1983 by arresting and prosecuting him in retaliation for his exercise of free speech. He first argues that a genuine issue of material fact exists as to whether LaRosa had probable cause to arrest him. We disagree. 16 Appeal: 14-1651 Doc: 44 Filed: 08/06/2015 Pg: 17 of 21 A law enforcement officer who obtains an arrest warrant loses the protection of qualified immunity “[o]nly where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable.” Torchinsky v. Siwinski, 942 F.2d 257, 261 (4th Cir. 1991) (alteration in original) (quoting Malley v. Briggs, 475 U.S. 335, 344-45 (1986)). means that facts are and “‘[P]robable cause’ to justify an arrest circumstances sufficient to within warrant a the officer’s prudent person, knowledge or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed . . . an offense.” DeFillippo, 443 U.S. 31, 37 (1979). Cahaly and the district court Michigan v. Although we agree with that the statute is unconstitutional, at the time of Cahaly’s arrest, “there was no controlling precedent constitutional anticipate [and that unconstitutional.” a a] that [the prudent court officer would Id. at 37-38. statute] later [is was or not] hold was required the not to [statute] Thus, our earlier holding has no bearing on whether LaRosa had probable cause when he arrested Cahaly. Before making the arrest, LaRosa had statements from six witnesses describing the robocalls and a recording of one of the calls. Some of the witnesses also provided the telephone number of the caller, and a later investigation connected that number 17 Appeal: 14-1651 Doc: 44 Filed: 08/06/2015 Pg: 18 of 21 to Cahaly as the president of the entity that paid for it. Moreover, one witness reported that the call “was not a real survey because pressing a button was not an option.” J.A. 128. LaRosa was also aware of the Attorney General’s opinion letter stating political J.A. 83. that purposes” “automated fell survey outside telephone calls the anti-robocall for statute. However, we think that a reasonable officer could have determined contemplated that by Cahaly’s the robocalls Attorney differed General from based the on those overtly political nature of the calls and one witness’s view that the survey aspect was a sham. Even if that determination was wrong as a matter of law, officers may have probable cause to arrest based on “reasonable mistakes of law.” Heien v. North Carolina, 135 S. Ct. 530, 536-37 (2014). Cahaly contends that the arrest warrants are facially invalid because they include disclosure requirements that appear nowhere in the statute. The affidavits used to obtain the warrants allege that Cahaly “failed to promptly disclose in a clear and conspicuous manner to the receiver of the call the identity of the originating party, endorsement of a candidate and or [sic] the nature of the call.” J.A. 237-42. But Section 16-17-446(C) only requires some robocalls to disclose “(1) the identity of the seller; (2) that the purpose of the call is to 18 Appeal: 14-1651 Doc: 44 Filed: 08/06/2015 Pg: 19 of 21 sell goods or services; [and] (3) the nature of the goods or service.” S.C. Code Ann. § 16-17-445(B)(1)-(3). An arrest warrant is invalid only if the officer preparing the affidavit included a false statement with reckless disregard for its truth affidavit’s and, after remaining probable cause.” that content statement is is insufficient redacted, to “the establish Franks v. Delaware, 438 U.S. 154, 156 (1978). Even assuming that the disclosure requirements in the affidavits were false disregard statements for their and truth that by LaRosa acted including them, probable cause based on the remaining content. with we reckless still find The affidavits allege that Cahaly made robocalls of a political nature, and nothing more is required to violate the anti-robocall statute. Consequently, we affirm the district court’s judgment that LaRosa and Lloyd are entitled to qualified immunity. 3 3 Cahaly also argues that the arrest warrant affidavits fail to include an essential element of the offense by not alleging that his robocalls included a prize promotion. Section 16-17446(A) defines “‘Adad’ [to] mean[] an automatically dialed announcing device which delivers a recorded message without assistance by a live operator for the purpose of making an unsolicited consumer telephone call as defined in Section 16-17445(A)(3).” The cross-reference takes readers to the definition for a “prize promotion” at Section 16-17-445(A)(3) while the definition for “unsolicited consumer telephone call” appears at Section 16-17-445(A)(4). According to Cahaly, this crossreference should be interpreted literally, such that “unsolicited consumer telephone call” means “prize promotion.” (Continued) 19 Appeal: 14-1651 Doc: 44 Filed: 08/06/2015 Pg: 20 of 21 B. From arrest our Cahaly, claims. conclusion we Under imprisonment that quickly South requires LaRosa dispense Carolina the had with law, plaintiff to probable cause Cahaly’s a claim state for demonstrate, in to law false part, that “the restraint was unlawful.” Law v. S.C. Dep’t of Corr., 629 S.E.2d 642, 651 (S.C. 2006). “The fundamental issue in determining the lawfulness of an arrest is whether there was probable cause to make the arrest.” Id. malicious Carolina prosecution, a South To state a claim for plaintiff establish, among other things, “lack of probable cause.” 648. Because Cahaly has not satisfied this element must Id. at of the claims, we affirm the district court’s judgment in favor of the Defendants. We find that construction nonsensical and obviously contrary to legislative intent. The statute provides a definition for “unsolicited consumer telephone call” in the very next subsection. And as the Defendants point out, the legislative history shows that the cross-reference to prize promotion is a typographical error. As originally enacted, the definition of “unsolicited consumer telephone call” appeared at Section 16-17-445(A)(3). H.R. 3453, 107th Gen. Assemb. (S.C. 1988). The legislature later added a definition for “prize promotion” and bumped the definition for “unsolicited consumer telephone call” to the next subsection. In so doing, the legislature simply neglected to update the cross-reference in Section 16-17-446(A). 20 Appeal: 14-1651 Doc: 44 Filed: 08/06/2015 Pg: 21 of 21 IV. For the foregoing reasons, we affirm in part and vacate in part the district court’s judgment, and remand the case with instructions to dismiss the compelled-speech claim. AFFIRMED IN PART, VACATED IN PART, AND REMANDED WITH INSTRUCTIONS 21

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