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Case No. 4:10cv423-RH/CAS

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

ANDREW NATHAN WORLEY et al.,

Plaintiffs,

v. CASE NO. 4:10cv423-RH/CAS

KENNETH W. DETZNER, in his 

official capacity as Florida

Secretary of State, et al.,

Defendants.

__________________________________/

ORDER GRANTING SUMMARY JUDGMENT

This case presents a challenge to Florida campaign-finance statutes as they 

apply to a ballot issue—a popular vote on a proposal to amend the state 

constitution. The statutes set no limit on the amount a person may spend or 

contribute to advocate the passage or defeat of a ballot issue. But the statutes 

require contributions and expenditures to be reported, impose bookkeeping 

requirements, require that advertisements disclose their source, and prohibit 

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spending—on a ballot issue—contributions received in the last five days before the 

vote. This order upholds all of these provisions but the last.

I

The plaintiffs are Andrew Nathan Worley, Pat Wayman, and John Scolaro. 

The defendants are the Florida Secretary of State and the members of the Florida 

Elections Commission, all in their official capacities.

The plaintiffs and Robin Stublen—who originally was a plaintiff but 

dropped out—joined together to oppose a ballot initiative, Proposed Amendment 4 

on the November 2, 2010, general-election ballot. The initiative would have 

required amendments to a local government’s comprehensive plan to be approved

in a public referendum. The three plaintiffs and Mr. Stublen wished to contribute 

$150 each, for a total of $600, to purchase air time for a radio advertisement they 

wrote opposing Amendment 4. They proposed to run the advertisement 30 times; 

the air time cost $20 for a 30-second slot. 

The four also wished, however, to accept contributions—including 

anonymous and cash contributions—and to use the funds to run the advertisement 

more often. They did not wish to identify themselves in the advertisement because 

they wished to use all of the purchased air time to convey the substance of the 

message and wished for the message to be evaluated based on its content, not 

based on its sponsors’ identities. 

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The plaintiffs asserted, and the defendants seemed to concede, that even if 

the plaintiffs did no more than spend their initial $600, they would become a 

“political committee” under Florida law. See § 106.011(1)(a), Fla. Stat. (defining a 

“political committee” to include a combination of two or more individuals who 

accept contributions of—or spend—more than $500 in a year to expressly advocate 

the election or defeat of a candidate or the passage or defeat of a ballot issue). 

The plaintiffs asserted, and the defendants seemed to concede, that this in 

turn would require the plaintiffs to comply with all the political-committee 

regulations. See § 106.021(1) (appoint a treasurer and establish a campaign 

depository); § 106.03(1)(a) (register with the Division of Elections); § 106.05 

(deposit all funds within five business days of receipt); § 106.06(1) (keep detailed 

accounts current within two days); § 106.06(3) (maintain records for two years); 

§ 106.07(4)(a) (file periodic reports of all contributions and expenditures); 

§ 106.11 (disburse funds only by check); § 106.22(10) (submit to random audits by 

the Division of Elections). 

The plaintiffs asserted, and the defendants seemed to concede, that Florida 

law prohibited the plaintiffs from accepting anonymous contributions of any size 

or cash contributions of more than $50. See § 106.09. 

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The plaintiffs asserted, and the defendants seemed to concede, that Florida 

law required the plaintiffs to include in any advertisement a statement identifying 

themselves or their committee. See § 106.143(1)(c)-(d).

Finally, the plaintiffs asserted, and the defendants seemed to concede, that 

Florida law prohibited the plaintiffs from paying for advertisements advocating the 

passage or defeat of a ballot issue with contributions received during the last five 

days before the vote. See § 106.08(4). 

The plaintiffs filed this action challenging the requirement to disclose 

contributions, challenging the attendant ban on anonymous contributions and on 

cash contributions of more than $50, challenging the requirement to register as a 

political committee, challenging the requirement to include in a radio

advertisement a statement of its source and thus banning anonymous 

advertisements, and challenging the ban on spending on a ballot issue contributions 

received in the last five days before the vote. The plaintiffs moved for a 

preliminary injunction. The motion was granted in one respect only: the 

defendants were enjoined from enforcing the ban on spending a contribution 

received in the last five days before an election if, prior to the expenditure, the 

contribution was reported. 

The Amendment 4 election has passed; the proposal was defeated. The 

plaintiffs say, though, that they intend to support or oppose future ballot 

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amendments. The plaintiffs are politically active, and ballot issues in Florida are 

commonplace. The dispute between the plaintiffs and the defendants presents a 

live controversy.

The parties have filed cross-motions for summary judgment. They agree the 

case should be resolved on summary judgment. They disagree only on which side 

should win. This order grants summary judgment for the plaintiffs coextensive 

with the preliminary injunction and otherwise grants summary judgment for the 

defendants.

II

The plaintiffs say they wish to accept contributions from others who agree 

with their position on a ballot issue. The plaintiffs wish to be able to “pass the hat” 

to accept anonymous contributions—including cash—at public gatherings. But 

Florida law requires public disclosure of all contributions, no matter how small. 

This prevents anonymous contributions.

The Supreme Court has repeatedly said that contributor-disclosure 

requirements are valid. See Citizens United v. Fed. Election Comm’n, 130 S. Ct. 

876, 915-16 (2010) (collecting cases); McConnell v. Fed. Election Comm’n, 540 

U.S. 93, 195-96 (2003) (contributions over $1,000); Buckley v. Valeo, 424 U.S. 1, 

63-68 (1976) (contributions over $100). And the Supreme Court has said this not 

only in cases involving candidate elections but also in cases involving ballot issues 

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like the one involved here. See Citizens Against Rent Control/Coal. for Fair Hous. 

v. City of Berkeley, Cal., 454 U.S. 290, 299-300 (1981) (“[T]he integrity of the 

political system will be adequately protected if contributors are identified in a 

public filing revealing the amounts contributed; if it is thought wise, legislation can 

outlaw anonymous contributions.”); First Nat’l Bank of Boston v. Bellotti, 435 

U.S. 765, 792 n.32 (1978) (“Identification of the source of advertising may be 

required as a means of disclosure, so that the people will be able to evaluate the 

arguments to which they are being subjected.”). See also Let’s Help Fla. v. 

McCrary, 621 F.2d 195, 200-01 (5th Cir. 1980) (stating in dictum that the same 

Florida disclosure requirement at issue here is constitutional). 

The plaintiffs say none of these are square holdings applicable to ballot 

issues. But when the Supreme Court has repeatedly said that requirements like 

these are constitutional, and the pre-Bonner Fifth Circuit has said these very 

requirements are constitutional, a district court in this circuit would properly reach 

a different result only on a much more persuasive showing than the plaintiffs have 

mustered here. 

To be sure, the plaintiffs say the law has changed, and they cite Citizens 

United as confirmation. Citizens United did overrule prior Supreme Court 

authorities, but not the authorities upholding disclosure requirements. To the 

contrary, Citizens United upheld the disclosure requirements at issue there and 

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gave not the slightest hint that its prior decisions on this subject had lost their 

force. See Citizens United, 130 S. Ct. at 915-16. The plaintiffs’ invitation to 

ignore the Supreme Court’s repeated statements on the ground that more recent 

decisions have implicitly undercut them is unfounded on the merits and in any 

event brings to mind the Eleventh Circuit’s disapproval of just such an approach:

The problem with [the dissent’s] approach is that the Supreme Court 

has repeatedly told us not to take it. The Court has instructed us: “If a 

precedent of this Court has direct application in a case, yet appears to 

rest on reasons rejected in some other line of decisions, the Court of 

Appeals should follow the case which directly controls, leaving to this 

Court the prerogative of overruling its own decision.” Rodriguez de 

Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S. Ct. 

1917, 1921-22, 104 L.Ed.2d 526 (1989); see also Tenet v. Doe, 544 

U.S. 1, 125 S. Ct. 1230, 1237, 161 L.Ed.2d 82 (2005) (quoting 

Shearson/Am. Express, Inc., 490 U.S. at 484, 109 S. Ct. at 1921-22); 

Am. Trucking Ass'ns, Inc. v. Smith, 496 U.S. 167, 180, 110 S. Ct. 

2323, 2332, 110 L.Ed.2d 148 (1990) (plurality op.) (same); Agostini v. 

Felton, 521 U.S. 203, 237, 117 S. Ct. 1997, 2017, 138 L.Ed.2d 391 

(1997) (“We do not acknowledge, and we do not hold, that other 

courts should conclude our more recent cases have, by implication, 

overruled an earlier precedent.”); Hohn v. United States, 524 U.S. 

236, 252-53, 118 S. Ct. 1969, 1978, 141 L.Ed.2d 242 (1998) (“Our 

decisions remain binding precedent until we see fit to reconsider 

them, regardless of whether subsequent cases have raised doubts 

about their continuing vitality.”).

United States v. Rodriguez, 406 F.3d 1261, 1277-78 (11th Cir. 2005).

The plaintiffs also insist that even if a group may be required to disclose 

substantial contributions, there is no reason to require disclosure of small ones, 

with the attendant prohibition on anonymous contributions, no matter how small. 

It is true that many jurisdictions set a minimum level below which contributions 

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need not be disclosed. But today a contributor and in turn the party who receives it 

can transfer information and thus make disclosures much more easily than ever 

before; doing so often will require only a few key strokes. And in an era when 

thousands, indeed millions, of small contributions can be made online or through 

text messages, the disclosure requirement serves an additional purpose beyond just 

identifying the contributor. Disclosing small contributions makes it much more 

difficult for a contributor to evade the reporting requirement by making multiple 

small contributions and makes it much more difficult for a party receiving 

contributions to claim incorrectly that they were so small that there was no 

obligation to report. The Supreme Court has recognized that preventing such 

evasions is a legitimate goal that can support a requirement to disclose 

contributions as low as $10: “recordkeeping, reporting, and disclosure 

requirements are an essential means of gathering the data necessary to detect 

violations of the contribution limitations . . . .” Buckley v. Valeo, 424 U.S. 1, 67-

68.

The challenged disclosure requirements are constitutional.

III

The plaintiffs next challenge the requirement that they register as a “political 

committee” and comply with the regulatory burdens that attend that status. They 

rely primarily on Citizens United. There the Supreme Court struck down a federal 

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statute that prohibited a corporation or union from spending its treasury funds to 

advocate the election or defeat of a candidate. The Court said that allowing a 

corporation or union to speak through a political action committee did not save the 

statute, first because speech by a PAC was not speech by the corporation or union 

itself, and second because PACs are “burdensome alternatives; they are expensive 

to administer and subject to extensive regulations.” 130 S. Ct. at 897. 

The plaintiffs assert that a “political committee” under Florida law is not 

materially different from a PAC under the federal provisions at issue in Citizens 

United. Even if that were so, Citizens United would not resolve the question of 

whether Florida can regulate the plaintiffs as a political committee. Citizens 

United involved an outright ban on election-related speech by a single speaker. 

The only purported justification for the ban was that the speaker was a corporation. 

The Court rejected the proposition that, for this purpose, a corporation had no right 

to speak, and it held that the ability to speak through a PAC did not save the 

otherwise-unconstitutional ban on direct speaking by the corporation. 

Here, in contrast, Florida law does not prohibit a plaintiff from speaking. 

Each plaintiff is free to speak as much as the plaintiff chooses and need not register 

as a political committee in order to do so. It is only the plaintiffs’ decision to act 

jointly—and to pool their funds—that triggers the application of the Florida 

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political-committee provisions. The law has long recognized, in many contexts 

including this one, that there is a difference between individual and joint action.

Still, political-committee regulation imposes a burden and is subject to 

exacting scrutiny. At some point a burden on the exercise of First Amendment 

rights becomes more than the Amendment will allow. But the burden here is not 

great. 

Indeed, the most burdensome regulations require little if anything more than 

a prudent person or group would do in these circumstances anyway. Thus a 

prudent group that chose to accept contributions from others for a specific purpose 

would put someone in charge of the money, would not intermingle the 

contributions with personal funds and—to avoid intermingling—would set up a 

separate bank account, would promptly deposit contributions into the account, 

would keep good records, and—to promote good recordkeeping—would disburse 

funds by check. And so Florida law requires a political committee to appoint a 

treasurer and establish a campaign depository, Florida Statutes § 106.021(1); 

deposit all funds within five days of receipt, id. § 106.05; keep detailed accounts 

current within two days and maintain the records for two years, id. § 106.06(1) & 

(3); and disburse funds only by check, id. § 106.11. These requirements do not 

impose an unconstitutional burden.

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The other political-committee requirements impose only a modest burden. 

The political committee must register with the Division of Elections, id. § 

106.03(1)(a), a process that requires only filling out a short form and sending it in. 

The political committee must file periodic reports of contributions and 

expenditures, § 106.07(4)(a)—that is, must make the disclosures that, as set out 

above, the Supreme Court has repeatedly said may constitutionally be required. 

And the political committee must submit to random audits, id. § 106.22(10), a 

process the plaintiffs might never actually undergo and that, if they operate as 

modest an operation as they say they will, is likely to impose very little burden at 

all. All of these provisions are well tailored to the legitimate goal of requiring 

disclosures and ensuring that they are made.

The plaintiffs have not shown that any of the political-committee regulations 

will impose on them an unconstitutional burden.

IV

The plaintiffs next challenge the provision requiring their proposed radio 

advertisements to include a statement of their identity—sometimes referred to as a 

disclaimer. The plaintiffs assert a right to speak anonymously. They wish to 

devote their limited air time to their message, not to identifying themselves, and 

they wish for the message to be evaluated on its content, not based on the 

plaintiffs’ identities. 

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The Supreme Court has recognized an individual’s right to speak 

anonymously in a handbill on an issue that will be on a public ballot. In McIntyre 

v. Ohio Elections Commission, 514 U.S. 334 (1995), the Court struck down a fine 

imposed on a woman who, acting independently of anyone else, circulated 

anonymous handbills opposing a ballot measure, thus violating a state ban on 

anonymous campaign literature. The Court said that the two interests invoked by 

the state were not sufficient to save the fine. First, the state’s interest in providing 

the electorate accurate information on the source of an assertion—thus allowing 

recipients to better evaluate the assertion—was no different than the state’s interest 

in providing the electorate other relevant information that a speaker was free to 

include or leave out of the speaker’s materials. Id. at 348-49. Second, the state’s 

interest in deterring false or defamatory statements could be served in other ways, 

without banning anonymous speech that was neither false nor defamatory. Id. at 

349-51.

McIntyre differs from this case in two respects. First, McIntyre involved 

handbills. This case involves radio advertisements. The McIntyre opinion noted 

the distinction, indicating that the statute at issue there banned not only anonymous 

handbills but also anonymous radio and television advertisements, and continuing:

No question concerning [the radio and television] provision is 

raised in this case. Our opinion, therefore, discusses only written 

communications and, particularly, leaflets of the kind Mrs. McIntyre 

distributed. Cf. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 637-

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638 (1994) (discussing application of First Amendment principles to 

regulation of television and radio). 

Id. at 338 n.3. 

Second, McIntyre involved an individual who acted alone. The plaintiffs in 

this case have explicitly chosen to speak as a group. Indeed, the decision to do so 

is what gives them standing to bring the bulk of their challenges to the Florida 

statutes. The plaintiffs’ assertion apparently is that McIntyre recognized a right to 

anonymous speech and that it applies not just to an individual but to a group, no 

matter how large.

The Supreme Court has never said that an individual has a First Amendment 

right to run an anonymous radio advertisement addressing a ballot issue. But even 

if a person had such a right, that would not help the plaintiffs. Under repeated 

decisions of the Supreme Court, an individual has no right to receive an 

anonymous contribution to fund a radio advertisement addressing a ballot issue, 

nor a right to make an anonymous contribution to fund someone else’s radio 

advertisement. See, e.g., Citizens Against Rent Control/ Coal. for Fair Hous. v. 

City of Berkeley, Cal., 454 U.S. 290, 299-300 (1981); First Nat’l Bank of Boston v. 

Bellotti, 435 U.S. 765, 792 n.32 (1978); see also Citizens United, 130 S. Ct. at 913-

14 (upholding a disclosure requirement for advertisements relating to a candidate 

election). 

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The Supreme Court has not expanded McIntyre beyond its context, despite 

repeated opportunities to do so. Instead, the Supreme Court has continued to 

uphold disclosure and disclaimer requirements that are inconsistent with any right 

of a group to run anonymous radio or television advertisements. As one of the 

justices who joined the McIntyre opinion noted, “In for a calf is not always in for a 

cow.” 514 U.S. at 358 (Ginsburg, J., concurring). 

There is no right to make or receive anonymous contributions or to run 

anonymous advertisements spending them. The plaintiffs’ challenge to the 

disclaimer requirement is unfounded.

V

Finally, the plaintiffs challenge the limitation on spending contributions 

received in the last five days before the election. See § 106.08(4), Fla. Stat. The 

limitation is timed to coincide with the requirement for disclosing contributions. A 

political committee’s last required disclosure is five days before the election. The 

state’s asserted justification for the limitation on spending funds received later is 

that it is necessary to prevent a committee or contributor from circumventing the 

requirement to disclose contributions. Without the limitation, a contributor could 

wait until after the last required disclosure, and then pour money into the 

campaign, without anyone knowing until after the election, when the knowledge 

could not affect the election’s outcome. Or so the theory goes.

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The state attempts to minimize the impact of the limitation, noting that an 

advocate can still spend funds in the five days before the election, so long as the 

funds were raised earlier, and can still spend funds raised in the five days before 

the election, just not on that election. But the ability to raise and spend funds in the 

last five days before an election is not insignificant. Indeed, at least before the 

advent of early voting and the expansion of absentee voting, the last five days 

before the election were perhaps the most crucial in many election cycles.

The state’s justification for the limitation does not survive exacting scrutiny 

in another respect as well. The last required disclosure is five days before the 

election, but that does not prevent a political committee from filing another 

disclosure during the last five days. If a committee receives a contribution during 

the weekend before the election and files a disclosure on Monday morning, there is 

no adequate justification for preventing the committee from spending the money 

on Monday afternoon, before Tuesday’s election. In the days of electronic filing 

and internet access to public records, any assertion that a five-day lag time is 

needed to provide meaningful public access has too little weight to justify a ban on 

core First Amendment speech.

The ban on spending fully-disclosed contributions received in the five days 

before an election is unconstitutional. 

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VI

For these reasons, 

IT IS ORDERED:

1. The summary-judgment motions, ECF Nos. 39 and 40, are 

GRANTED IN PART and DENIED IN PART. 

2. Summary judgment is granted for the plaintiffs on their challenge to 

the prohibition on spending in the five days before an election contributions that 

have been fully disclosed. The defendants must not enforce against the plaintiffs 

any provision of Florida law preventing the plaintiffs from spending—in 

connection with an election—a contribution received in the last five days before 

the election, on the ground that the contribution was received in the last five days 

before the election, but this injunction applies only if, before the contribution is 

spent, the plaintiffs have fully disclosed the contribution in a filing properly made 

with the Division of Elections. This injunction binds the defendants and their 

officers, agents, servants, employees, and attorneys—and others in active concert 

or participation with any of them—who receive actual notice of this injunction by 

personal service or otherwise. The court reserves jurisdiction to enforce the 

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injunction.

3. Summary judgment is granted for the defendants on all other claims.

4. The clerk must enter judgment accordingly.

5. The clerk must close the file.

SO ORDERED on July 2, 2012.

s/Robert L. Hinkle

United States District Judge

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