Auburn Police Union v. Carpenter
Case Date: 11/12/1993
Court: United States Court of Appeals
Docket No: 92-1951
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UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 92-1951 AUBURN POLICE UNION, ET AL., Plaintiffs, Appellants, v. MICHAEL E. CARPENTER, ATTORNEY GENERAL OF THE STATE OF MAINE, Defendant, Appellee. ____________________ No. 92-2028 AUBURN POLICE UNION, ET AL., Plaintiffs, Appellees, v. MICHAEL CARPENTER, ATTORNEY GENERAL OF THE STATE OF MAINE, Defendant, Appellant. _____________________ APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. D. Brock Hornby, U.S. District Judge] ___________________ ____________________ Before Cyr, Circuit Judge, _____________ Campbell, Senior Circuit Judge, ____________________ and Boudin, Circuit Judge. _____________ ____________________ Errol Copilevitz with whom John P. Jennings, Jr., Copilevitz, ________________ _______________________ __________ Bryant, Gray & Jennings, P.C., Leland N. Chisholm and Kelly, Remmel & ______________________________ __________________ _______________ Zimmerman were on brief for plaintiffs. _________ MacKenzie Canter, III, Leonard J. Henzke, Jr., Lehrfeld, Canter, _____________________ _______________________ _________________ Henzke & Diskin and George Gills on brief for Maine State Troopers _______________ ____________ Association, National Association of Police Officers, National Troopers Coalition and Texas State Troopers Association, Amici Curiae. Stephen L. Wessler, Deputy Attorney General, with whom Michael E. __________________ __________ Carpenter, Attorney General, and Thomas D. Warren, Deputy Attorney _________ _________________ General, were on brief for defendant. ____________________ November 12, 1993 ____________________ CAMPBELL, Senior Circuit Judge. The State of Maine ____________________ has enacted a law (hereinafter "the Act") prohibiting a person from soliciting property from the general public that tangibly benefits any law enforcement officer, agency or association.1 Violations of the Act are declared to contravene the Maine Unfair Trade Practices Act, and they may be enjoined and penalized civilly. Me. Rev. Stat. Ann. tit. 5, 209 (West 1992). Plaintiffs comprise a coalition of police unions, individual law enforcement officers, a professional fundraiser and a private citizen.2 They sued in the United States District Court for the District of Maine pursuant to ____________________ 1. Entitled the "Solicitation by Law Enforcement Officers Act," the statute provides that: A person may not solicit property from the general public when the property or any part of that property in any way tangibly benefits, is intended to tangibly benefit or is represented to be for the tangible benefit of any law enforcement officer, law enforcement agency or law enforcement association. Me. Rev. Stat. Ann. tit. 25, 3702-A (1992). 2. Plaintiffs include the Auburn Police Union, the Portland Police Benevolent Association, and the Lewiston Police Union all of which come within the definition of a "law enforcement association" as defined in Me. Rev. Stat. Ann. tit. 25, 3701(2); Leonard Dexter, Kevin MacDonald, and David B. Chamberlain all of whom are officers of law enforcement associations; R.H. McKnight Co., Inc., a corporation in the business of fundraising and promotions on behalf of law enforcement officers, agencies, and associations through sale of advertising and publication of trade magazines, programs and handbooks; and Charles Underwood, a private citizen who wishes to advertise in police publications and to receive copies of those publications. -3- 42 U.S.C. 1983, seeking to enjoin the Act and to have it declared unconstitutional under the First and Fourteenth Amendments to the United States Constitution. While declaring that the provision for injunctive enforcement was an unconstitutional prior restraint, the district court otherwise upheld the Act against plaintiffs' overbreadth and equal protection challenges. Both the State of Maine and plaintiffs appeal. We vacate the district court's determination that the injunctive relief provision amounts to an impermissible prior restraint, and affirm the district court's upholding of the constitutionality of the Act. I. I. As the Act was originally enacted in 1977, its sole exception was for solicitations by or on behalf of law enforcement officers campaigning for election to public office an exception still in existence. Me. Rev. Stat. Ann. tit. 25, 3703. In 1983, the Act was amended to allow game wardens to sell historical publications describing state parks.3 Me. Rev. Stat. Ann. tit. 25, 3702. ____________________ 3. After the 1983 amendment, section 3702 provided the following: No person may solicit property from the general public when the property, or any part of it, in any way benefits, is intended to benefit or is represented to be for the benefit of any law enforcement officer, law enforcement agency or law enforcement association, except that any state warden service association may offer for sale, by -4- In 1983, Maine's Attorney General brought an action under the Unfair Trade Practices Act, Me. Rev. Stat. Ann. tit. 5, 205-A to 214, against the Maine State Troopers Association ("M.S.T.A.") a law enforcement association as defined in Me. Rev. Stat. Ann. tit. 25, 3701(2) to enjoin the M.S.T.A. from engaging in solicitations in violation of 3702. The Attorney General alleged that the M.S.T.A. had sold and offered to sell advertisements to Maine businesses for insertion in its magazine, "The Maine State Trooper." The M.S.T.A. challenged the Act's ____________________ persons other than wardens or members of the association, to members of the public guide books or handbooks containing historical reviews or descriptions of services, except that on the request of a nonmember the association may provide that person with the copies requested for sale by that person. No advertisements may be sold or included in these publications, except greetings or complimentary statements from members or former members which shall give the full name of the member or former member. A stated rate for this advertisement space shall be published and no funds in excess of that stated rate may be accepted by the association for space. A record of receipts and sales for space and sales of the publication shall be kept and available to the public during normal working hours. All proceeds from these sales shall be expended for direct charitable services to members or their spouses, widows, children, widowers or parents and may not be used for buildings or equipment, construction or maintenance or entertainment of members. Any violation of this chapter shall constitute a violation of Title 5, chapter 10, the unfair trade practices laws. Me. Rev. Stat. tit. 25, 3702. -5- constitutionality, and the case went to the Maine Supreme Judicial Court (the "Law Court"), which in 1985 upheld the Act as constitutional. See State v. Maine State Troopers ___ _____ _____________________ Ass'n ("MSTA"), 491 A.2d 538 (Me.), appeal dismissed, 474 _____ ____ ________________ U.S. 802 (1985). The Law Court found that Maine had a compelling interest in avoiding police coercion. It found irrelevant the subjective intent of the solicitor and the absence of any complaint of coercion: ". . . at least the appearance of coercion inheres in every solicitation on behalf of law enforcement," undermining "the integrity of the office." Id. ___ at 542-43. The Law Court noted the Maine Legislature's finding that "[s]olicitation by a law enforcement agency is inherently coercive." Id. In the court's view, the State's ___ interest "in protecting the reputation of its law enforcement bodies is undeniably substantial. Indeed, we would be hard pressed to suggest a weightier interest." Id. Holding the ___ statute not to be "fatally overbroad," the Law Court emphasized that "the integrity of the State's law enforcement agents is cast in doubt with every solicitation on their behalf." Id. Thus the court found the Act constitutional. ___ The Law Court, however, affirmed the lower court's decision that under the Equal Protection Clause of the Fourteenth Amendment, the State could not impose any greater restrictions on the solicitation activities of other law -6- enforcement officers than were imposed upon state wardens. Id. at 544.4 The Maine State Troopers Association appealed ___ from the Law Court's decision to the Supreme Court of the United States, which summarily dismissed the appeal for want of a substantial federal question. Maine State Troopers Ass'n __________________________ v. Maine, 474 U.S. 802 (1985). _____ In 1989, following the Supreme Court's summary dismissal of the appeal in MSTA, the Maine Legislature ____ amended the Act so as to permit the Department of the Attorney General to charge for the cost of consumer education materials. Me. Rev. Stat. tit. 25, 3706. The Legislature additionally amended the Act to permit solicitations for a period of one year, later extended an additional six months, to raise funds for the construction of a memorial to slain police officers. Priv. & Spec. Laws 1989, Ch. 47; Priv. & Spec. Laws 1990, Ch. 114. In 1990, the same plaintiffs who brought the present suit challenged the constitutionality of the Act in the federal district court. See Auburn Police Union v. ___ ____________________ Tierney ("Auburn I"), 756 F. Supp. 610 (D. Me. 1991). The _______ ________ district court affirmed the magistrate judge, who ruled in a comprehensive opinion that the Supreme Court's summary ____________________ 4. The Law Court affirmed the lower court's judgment that the M.S.T.A. should be permitted to sell their publications to the general public, subject to the same restrictions imposed on associations of state wardens by Me. Rev. Stat. Ann. tit. 25, 3702. -7- dismissal of MSTA was not a binding precedent because the ____ Legislature's enactment of the above exceptions had undermined MSTA's premise that all solicitation by law ____ enforcement officers and organizations is inherently coercive. Id. at 616.5 The court held that the Act was ___ unconstitutionally overbroad and invalid on its face because "[a] complete prohibition on police solicitation is not narrowly tailored to Maine's evident interest in banning some, but not all, such solicitation." Id. at 618. The ___ court further concluded that the Act violated the Equal Protection Clause of the Fourteenth Amendment because the State could not demonstrate a substantial governmental interest in permitting police solicitation for a memorial to slain officers, while prohibiting police solicitation for other causes. Id. at 619. Finally, the district court ___ determined that the Act constituted an impermissible prior restraint because it "silences by fiat an entire category of charitable solicitation." Id. at 618. The State of Maine ___ did not appeal in that case. Instead, in 1991, the Maine Legislature repealed the exemptions, except for the exemption for solicitations by ____________________ 5. The magistrate judge rejected arguments that MSTA and the ____ case before him turned on "very different" facts and that post-MSTA developments undermined MSTA's precedential value. ____ ____ -8- or on behalf of law enforcement officers running for public office.6 The Legislature then reenacted the prohibition on solicitations with one material change the Legislature added the word "tangibly" prior to the word "benefits" in the new 3702-A so as to "clarif[y] that the ban on solicitations applies only when the solicitations provide a tangible benefit to law enforcement." Sen. Amend. B to L.D. 1682 (115th Legis. 1991). In October 1991, the Department of the Attorney General proposed rules under the Unfair Trade Practices Act, Me. Rev. Stat. Ann. tit. 5, 207, defining the word "tangibly" as used in 3702-A.7 Me. Dep't of Att'y Gen. 26-239 (1991). These rules provide that "a solicitation which is completely unrelated to law enforcement officers, although it increases good will toward law enforcement, does not confer a tangible benefit," whereas "[a] solicitation ____________________ 6. In addition to repealing the exception allowing the Department of the Attorney General to charge for the cost of consumer education materials, Me. Rev. Stat. Ann. tit. 25, 3706, the Legislature repealed the exception permitting State Warden Service associations to sell guide books but not advertisements, Me. Rev. Stat. Ann. tit. 25, 3702, and an exception permitting non-law enforcement officers to sell advertising in publications of the Department of Inland Fisheries and Wildlife, Me. Rev. Stat. Ann. tit. 25, 3705. The Private and Special Laws permitting solicitations to raise funds for the construction of a memorial to slain police officers expired by their own terms. Priv. & Spec. Laws 1989, Ch. 47; Priv. & Spec. Laws 1990, Ch. 114. 7. The Attorney General has rulemaking authority under the Unfair Trade Practices Act. Me. Rev. Stat. Ann. tit. 5, 207-2. -9- which funds a law enforcement program, which otherwise would have to be funded through law enforcement's own budgeting processes, does confer a tangible benefit." Id.8 ___ ____________________ 8. The "Rules Concerning Unfair Trade Practices and Charitable Solicitations by Law Enforcement Officers" provide the following: 109.1 SOLICITATIONS THAT TANGIBLY BENEFIT LAW ENFORCEMENT A solicitation tangibly benefits a law enforcement agency, officer, or association if the proceeds of that solicitation are used, represented to be used, or intended to be used to support a law enforcement program or purpose which a law enforcement agency or association otherwise would have to fund through its own budgeting mechanism. Examples of solicitations which tangibly benefit law enforcement are as follows: (1) A solicitation which raises money from community members to pay for the purchase of equipment for a local police department; (2) A solicitation to send an officer into school classrooms to conduct anti-drug abuse training (the money paying for the officer's salary and for education materials); and (3) The solicitation of funds for erection of a monument to memorialize slain officers, which was permitted by prior law, Priv. & Spec. Laws 1989, ch. 47. 109.2 SOLICITATIONS THAT DO NOT TANGIBLY BENEFIT LAW ENFORCEMENT A solicitation of money for purposes completely unrelated to law enforcement, such as for a charity unrelated to law enforcement, does not confer a tangible benefit on law enforcement even if the solicitation effort increases good will toward law enforcement. For example, if police officers engage in solicitations of money for earthquake victims in South America, and if no law enforcement agency, officer, or association receives, is intended to receive, or is represented to receive any of the proceeds of the solicitation, then that solicitation program will not tangibly ___ benefit law enforcement. -10- Plaintiffs brought the present suit on September 27, 1991, seeking a declaratory judgment that 3702-A is both facially unconstitutional and unconstitutional as applied. Preliminary and permanent injunctions against enforcement of 3702-A were requested. Several plaintiffs alleged that they wanted to solicit advertising from the business community and to place those advertisements in police magazines like the "Maine State Trooper," and that the Act prohibited this conduct. According to plaintiffs, 3702-A violates the First and Fourteenth Amendments because it is unconstitutionally overbroad, serves as an impermissible prior restraint on their freedom of speech, and denies to them the equal protection of the laws. The district court held that the provision for enforcement of the Act through injunctive relief created an impermissible prior restraint. Otherwise, it upheld the constitutionality of 3702-A. See Auburn Police Union v. ___ ____________________ Carpenter ("Auburn II"), 798 F. Supp. 819 (D. Me. 1992). _________ Plaintiffs appeal, arguing that the Act is unconstitutionally overinclusive and underinclusive. Maine argues in response that the United States Supreme Court's summary dismissal of the appeal in MSTA must be accorded binding precedential ____ effect on the issues of overbreadth and underinclusiveness. Even if the Supreme Court's summary dismissal does not ____________________ Me. Dep't of Att'y Gen. ch. 109. -11- control, Maine argues that the Act must still be upheld because it is narrowly tailored to serve a compelling interest. Maine also appeals from the district court's declaration that the injunctive relief provision constitutes an impermissible prior restraint. II. II. This appeal presents difficult questions. We must decide, first, what issues are foreclosed by the Supreme Court's dismissal for want of a federal question of the appeal in MSTA. And, if any of the First and Fourteenth ____ Amendment issues raised by appellants are not foreclosed by MSTA, we must decide them. ____ In the enabling Act, the Maine Legislature said that the Act: clarifies and reaffirms that the primary and compelling purpose underlying the laws governing solicitation by law enforcement officers is to eliminate the coercion that is inherent in solicitations by and on behalf of law enforcement officers by prohibiting such solicitations. When a law enforcement officer solicits from a prospective donor, the donor may not feel totally free to reject the request in light of the officer's position . . . . Priv. & Spec. Laws 1991, Ch. 510 5. We set forth in an appendix the full text of this section of the enabling Act. In challenging the Act, appellants contend it goes far beyond what is constitutionally permissible and necessary to address whatever valid concerns exist about the -12- coerciveness of police solicitations. Appellants insist that such dangers, if any, must be regulated more narrowly, for example, by legislation prohibiting solicitation by officers in uniform, or requiring that solicitation be done only by persons who are not themselves police officers. The present total ban on solicitation by any "person" when the property or any part of it "in any way tangibly benefits, is intended to tangibly benefit or is represented to be for the tangible benefit of any law enforcement officer . . . agency or . . . association," is said to be unconstitutionally broad, foreclosing innocent actions and speech that could not possibly cause any of the evils the Maine Legislature fears. For example, the Act would bar placing an unattended collection box for a police charity in a public place, even though doing this could not, appellants say, exert a coercive influence. Appellants say that the Act does not adopt, as the First Amendment requires, the least restrictive means to address the evil of police coercion; that it is a prior restraint, not only because of the conferred injunctive powers but because of its overall scheme; and that it offends other constitutional principles. These issues are not easy given the protection our Constitution affords speech and speech-related activities. Nonetheless, we conclude that the Maine Legislature's effort to deal with the dangers of police solicitation is within its -13- constitutional authority. We hold that the Supreme Court's dismissal of the MSTA appeal is binding on the overbreadth ____ issue, and that appellants' remaining constitutional claims are insufficient. A. Standard of Review __________________ This case was submitted below on a stipulated record and upon cross-motions for summary judgment. In such a case, we review the district court's determinations de __ novo. Brewer v. Madigan, 945 F.2d 449, 452 (1st Cir. 1991); ____ ______ _______ New England Legal Found. v. Massachusetts Port Auth., 883 _________________________ _________________________ F.2d 157, 167 (1st Cir. 1989). The standard for reviewing appellants' First Amendment claims depends upon whether the Act's effects on speech are content-based. Content-based regulations are subject to strict judicial scrutiny; they are "presumptively invalid." R.A.V. v. St. Paul, 112 S. Ct. 2538, 2542 (1992); ______ ________ Simon & Schuster, Inc. v. Members of New York State Crime _______________________ _________________________________ Victims Bd., 112 S. Ct. 501, 508 (1991) ("the Government's ___________ ability to impose content-based burdens on speech raises the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace. [citation omitted] The First Amendment presumptively places this sort of discrimination beyond the power of the Government."). The district court regarded the Act's restrictions as content-based, being limited to solicitations of property -14- that tangibly benefits law enforcement officers and groups, and not extending to other sorts of solicitations. See ___ Burson v. Freeman, 112 S. Ct. 1846, 1850-51 (1992) (plurality ______ _______ opinion) (statute prohibiting solicitation of votes, but allowing other forms of solicitation within one hundred feet of poll is content-based); cf. Heffron v. International Soc'y ___ _______ ___________________ for Krishna Consciousness, Inc., 452 U.S. 640, 648-49 (1981) ________________________________ (rule that no person or organization, whether commercial or charitable, may solicit except from a rented booth is content-neutral restriction as it "applies evenhandedly to all who wish to distribute and sell written materials or to solicit funds"). Maine denies that the Act is content-based, arguing that 3702-A prohibits only the act ___ of soliciting for something that tangibly benefits law enforcement. According to the State, the content of the solicitation i.e., whether the message is that funds are needed for more equipment, to advocate strengthening the drug laws, or to promote capital punishment legislation is not relevant to 3702-A's ban on solicitation. But while the Act may not regulate the details of a given solicitation, the fact remains that it applies to, and prohibits, only certain types of solicitation, necessitating an examination of the content of each solicitation in order to determine whether the Act's criteria are implicated. The Supreme Court has pointed to "the reality that solicitation -15- is characteristically intertwined with informative and perhaps persuasive speech seeking support for particular causes or for particular views on economic, political, or social issues, and for the reality that without solicitation the flow of such information and advocacy would likely cease." Shaumburg v. Citizens for Better Env't, 444 U.S. _________ __________________________ 620, 632 (1979). Like the court below, we conclude that the Act falls on the side of content-based regulation. As such, it is subject to "exacting First Amendment scrutiny."9 Riley v. National Fed'n of the Blind, Inc., 487 U.S. 781, 788 _____ _________________________________ (1988). B. Overbreadth Binding Precedential Effect of ________________________________________________ MSTA ____ ____________________ 9. Perhaps it might be argued although Maine has not done so that the Act is content-neutral because it seeks to prevent only the harmful "secondary effects" of solicitation, i.e., the implied coercion inherent in solicitation on behalf of law enforcement personnel, with the resulting loss of integrity. Restrictions based on the content of speech that seek to regulate only the "secondary effects" of the speech have, in certain situations, been deemed content-neutral because they "serve purposes unrelated to the content of the expression." Ward v. Rock Against Racism, 491 U.S. 781, 791 ____ ____________________ (1989); see Renton v. Playtime Theatres, Inc., 475 U.S. 41, ___ ______ ________________________ 47 (1986), reh'g denied, 475 U.S. 1132 (1986). But even if ____________ this argument had not been waived, it is doubtful that these cases, involving very dissimilar facts and regulatory schemes, would apply here. Cf. R.A.V., 112 S. Ct. at 2549 ___ ______ (listeners' reactions to speech are not "secondary effects"). In any event, we need not enter into the thicket of the "secondary effects" doctrine, as we conclude, infra, that, to _____ the extent not controlled by the Supreme Court's summary dismissal of the MSTA appeal, the Act survives the stringent ____ scrutiny applicable to content-based regulation. -16- We move to Maine's argument that the summary dismissal of the appeal in MSTA by the Supreme Court of the ____ United States is entitled to binding precedential effect on the issues of overbreadth and underinclusiveness.10 The Supreme Court's summary disposition of an appeal to it is an adjudication on the merits that must be followed by lower courts, subject, of course, to any later developments that alter or erode its authority. Hicks v. _____ Miranda, 422 U.S. 332, 343-45 (1975). We need, therefore, to _______ determine the "reach and content" of the Supreme Court's dismissal of the appeal in MSTA for want of a substantial ____ federal question. See id. at 345 n.14.11 ___ ___ ____________________ 10. We find no merit in plaintiffs' contention that Auburn ______ I, 756 F. Supp. 610, is stare decisis. This court is not _ bound by a district court opinion that was never appealed to, or affirmed in, this court. See 1B Moore's Federal Practice ___ 0.402[2], p.I-23 (1993) ("the doctrine of stare decisis makes a decision on a point of law in one case a binding precedent in future cases in the same court, and such courts as owe ___________________________________________ obedience to the decision.") (emphasis added). _________________________ 11. Both courts and commentators have noted the difficulty of ascertaining the proper reach of a Supreme Court summary disposition. See Hicks, 422 U.S. at 345 n.14 ___ _____ ("[a]scertaining the reach and content of summary actions may itself present issues of real substance"); Fusari v. ______ Steinberg, 419 U.S. 379, 391 (1975) (Burger, C.J., _________ concurring) ("Another common response to summary affirmances . . . is confusion as to what they actually do mean."), reh'g _____ denied, 470 U.S. 955 (1975); Preston v. Seay, 684 F.2d 172, ______ _______ ____ 173 (1st Cir. 1982) ("It is of course often difficult to understand the proper reach of Supreme Court summary affirmances and dismissals for want of a substantial federal question"); Note, "The Precedential Effect of Summary Affirmances and Dismissals for Want of a Substantial Federal Question by the Supreme Court After Hicks v. Miranda and _____ _______ Mandel v. Bradley," 64 Va. L. Rev. 117, 130 (1978) (noting ______ _______ -17- In Mandel v. Bradley, 432 U.S. 173 (1977), the ______ _______ Supreme Court said that, "[s]ummary affirmances and dismissals for want of a substantial federal question without doubt reject the specific challenges presented in the statement of jurisdiction and do leave undisturbed the judgment appealed from. They do prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions." Id. at ___ 176; see Illinois State Bd. of Elections v. Socialist Workers ___ _______________________________ _________________ Party, 440 U.S. 173, 183 (1979) ("Questions which 'merely _____ lurk in the record,' are not resolved, and no resolution of them may be inferred.") (quoting Webster v. Fall, 266 U.S. _______ ____ 507, 511 (1925)). The Supreme Court's summary disposition will not control later lower court cases involving significantly dissimilar facts. See Mandel, 432 U.S. at 177 ___ ______ (vacating lower court decision that summary affirmance was binding because facts in summary affirmance were "very different" from those before lower court). The Supreme Court further cautioned that summary dispositions "should not be understood as breaking new ground but as applying principles established by prior decisions to the particular facts involved." Id. at 176. ___ ____________________ "the difficulty inherent in any attempt to interpret a disposition without an opinion"). -18- In ascertaining the "reach and content" of the Court's summary dismissal in MSTA, we may not rely solely ____ upon the reasoning of the Maine Law Court. Id. ("Because a ___ summary affirmance is an affirmance of the judgment only, the rationale of the affirmance may not be gleaned solely from the opinion below."); accord Anderson v. Celebrezze, 460 U.S. ______ ________ __________ 780, 785 n.5 (1983); Fusari, 419 U.S. at 391-92 (Burger, ______ C.J., concurring). Instead, we should examine the jurisdictional statement filed in the Supreme Court of the United States and any other relevant aid to construction in order to ascertain what issues were "presented and necessarily decided" by the Court's summary dismissal.12 Examining the MSTA jurisdictional statement, ____ together with the accompanying papers filed with the Supreme Court and the opinions of the lower courts, we conclude that appellants in MSTA specifically presented the issue of facial ____ overbreadth, including whether the Act was broader than justified by the underlying state interest, to the Supreme Court. We think the Court was obliged to have considered and ____________________ 12. Besides contesting whether the current case presents the same issues that were involved in MSTA, plaintiffs contend ____ that the facts in the instant case and MSTA are very ____ different; that MSTA deviated from established constitutional ____ principles and broke new ground; and that doctrinal developments have undercut the precedential value of MSTA. ____ Like the district court in Auburn I, we find these three ________ contentions lack merit. 756 F. Supp. at 614. Unlike the court in Auburn I, however, we also conclude that MSTA is ________ ____ entitled to binding precedential value on the issue of substantial overbreadth. -19- to have rejected this issue as a predicate to its dismissing of the appeal for want of a substantial federal question. The issue of so-called underinclusiveness, however, does not so clearly appear in the papers, and later changes in the Act further erode the present bearing of MSTA on that topic. ____ Therefore, the dismissal in MSTA is binding upon us as to ____ overbreadth, but is not binding as to underinclusiveness, nor binding as to certain "as applied" issues the plaintiffs have raised. We turn first to overbreadth. In the strict sense, overbreadth is a doctrine for facially invalidating a statute that is "so broad that it 'may inhibit the constitutionally protected speech of third parties.'" N.Y. State Club Ass'n v. New York, 487 U.S. 1, 11 _____________________ ________ (1988) (quoting Members of City Council of Los Angeles v. ________________________________________ Taxpayers for Vincent, 466 U.S. 789, 798 (1984)); Regan v. _____________________ _____ Time, Inc., 468 U.S. 641, 651 n.7 (1984). There must be "a __________ realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court." Id. (quoting Taxpayers for Vincent, ___ ______________________ 466 U.S. at 801). The overbreadth "must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." New York v. Ferber, 458 U.S. 747, ________ ______ 770 (1982). Plaintiffs argue that the Act is overbroad in this classic sense. For example, without themselves necessarily -20- wishing to engage in such conduct, they note that solicitors may wish to put out unattended collection boxes to receive police donations. This, they say, would be noncoercive, since no one would know who donated or did not donate, yet the Act would prohibit it. Similarly, plaintiffs point out that hypothetical private citizens, unconnected with the police, are prevented by the Act from soliciting donations to law enforcement from friends for instance, from voluntarily soliciting funds to buy a new cruiser for a local department. This, too, is said to be an example of how the Act sweeps too broadly, prohibiting protected conduct by third parties.13 Classic overbreadth, however, was an argument specifically presented to the Supreme Court in the MSTA ____ appeal and necessarily rejected by its dismissal of that appeal for want of a substantial federal question. ____________________ 13. One can also hypothesize, for purposes of overbreadth analysis, other arguably unconstitutional applications of the Act. For example, the Act might be construed to prevent private citizens from asking for money to lobby for a bill that raises police salaries. However, because the Act's prohibition runs only against fundraising for the "tangible" benefit of law enforcement, the Maine courts might well reject any such interpretation. Speculative readings like this would seem best decided, if ever sought to be enforced, in an "as-applied" lawsuit, rather than hypothesized in advance for purposes of facial overbreadth analysis. In any case, as discussed infra, we consider the issue of facial _____ overbreadth to be foreclosed by the Supreme Court's summary dismissal of the MSTA appeal. ____ -21- When so dismissing, the Supreme Court had before it, both in M.S.T.A.'s jurisdictional statement and in its notice of appeal, appellants' explicit contention that the Act was overbroad. And, as noted supra, the Law Court's _____ underlying opinion from which appeal was being taken had specifically discussed and rejected overbreadth as a ground for invalidating the Act. It is true that in first describing the questions presented on appeal, M.S.T.A.'s jurisdictional statement after setting out the terms of the Act defined the question only as whether or not the Act "violates the First and Fourteenth Amendments to the United States Constitution." Later, however, under the heading of "Stated Reasons for Plenary Consideration," the jurisdictional statement urged upon the Court the desirability of its being able to question counsel as to "the overbreadth doctrine." In a footnote appended to that suggestion, M.S.T.A. stated, "From the outset, appellant has asserted the overbreadth doctrine of NAACP v. _____ Button, 371 U.S. 415 (1963)." ______ In NAACP, the Court had stated, among other comments relevant _____ to overbreadth, "Furthermore, the instant decree may be invalid if it prohibits privileged exercises of First Amendment rights whether or not the record disclosed that the petitioner has engaged in privileged conduct." Id. at 432. ___ -22- That overbreadth was specifically presented to, and rejected by, the Supreme Court is underscored by M.S.T.A.'s statement in its notice of appeal to the Supreme Court that appeal was taken from the portion of the Law Court's decision that "the statute in question is not overbroad." We find, therefore, that in denying the MSTA appeal, the Supreme Court ____ was expressly presented with, and must therefore have rejected, the argument that the Act was unconstitutional under the First Amendment because of overbreadth. We think the Court's rejection of overbreadth subsumed, besides the "classic" overbreadth described above, another common variety of facial overbreadth claim. The term "overbreadth" is used in First Amendment contexts not only to invalidate statutes that are so broad as to inhibit the constitutionally protected speech of third parties, supra, _____ but to facially invalidate statutes that inhibit free speech and are unsupported by a sufficiently compelling state interest or are not tailored narrowly to such an interest. See Secretary of Maryland v. Joseph H. Munson Co., 467 U.S. ___ ______________________ _____________________ 947, 965-66 n.13 (1984) ("where the defect in the statute is that the means chosen to accomplish the state's objectives are too imprecise, so that in all its applications the statute creates an unnecessary risk of chilling free speech, the statute is properly subject to facial attack."); see also ________ -23- N.Y. State Club Ass'n, 487 U.S. at 11; Schaumberg, 444 U.S. ______________________ __________ at 639, Taxpayers for Vincent, 466 U.S. at 797. _____________________ Any present claim of facial invalidity based on a purported absence of compelling state interest in prohibiting public solicitation for the tangible benefit of law enforcement officers and agencies seems to us to be precluded by the Supreme Court's dismissal of M.S.T.A.'s appeal.14 Similarly, a facial invalidity claim based on an alleged lack of narrow tailoring is likewise precluded. We so conclude not alone from the Law Court's own ruling in MSTA, which ____ expressly found both a compelling state interest and the requisite narrow tailoring, but from express language in the jurisdictional statement submitted by M.S.T.A. when appealing to the Supreme Court from the Law Court's ruling. In that statement, as already noted, the terms of the challenged Act were set forth and an appeal on First and Fourteenth Amendment grounds noted. M.S.T.A. then went on to complain that the Law Court had held that the Act "in fact interferes with First Amendment freedoms, but that compelling state interests exist which permit the interference." M.S.T.A. characterized the Law Court's version of the compelling interest as "the interest of the State in the image of its ____________________ 14. As later sections of this opinion demonstrate, we do not regard the Court's denial of appeal in MSTA as barring our ____ consideration of claims attacking the sufficiency of the State's compelling interest based on underinclusiveness (equal protection) grounds. -24- law enforcement officers" and as "an intangible harm" allowed in the Law Court to "deprive law enforcement associations, and others, of protected First Amendment rights." M.S.T.A. urged summary reversal because the "Law Court, absent any evidence of actual or perceived coercion, apparently assumed the compelling state interest into existence based upon comments in the legislative history of the Act." M.S.T.A. urged the Supreme Court if unwilling to reverse the Law Court summarily to question counsel as to "the broad sweep of the State's alleged compelling interest, together with the appellant's assertion of the 'overbreadth doctrine.'" These statements were prefaced by mention of the trial court's finding that appellants had not engaged "in any form of coercion or otherwise used their official position to solicit advertising," a comment supportive of other remarks that the Law Court had rested the State's compelling interest solely on a need to conserve the "image" of its law enforcement officers. We think the above statements necessarily alerted the Supreme Court to a claim of "overbreadth" based on the notion that the Act's burdens on speech went beyond any truly compelling state interest. The challenged language of the present Act is virtually identical in all material respects to the statute found to be constitutional in MSTA. The key difference ____ -25- between the current version of the Act, Me. Rev. Stat. Ann. tit. 25, 3702-A, and the prior version of the Act, Me. Rev. Stat. Ann. tit. 25, 3702, is that the current version now provides that the prohibition on solicitation applies only when solicitation "tangibly" benefits any law enforcement officer, agency or association. This clarifies that police solicitation for charitable causes unrelated to law enforcement is not barred. Arguably, under the old statute such solicitation was barred because it intangibly benefited law enforcement by providing good will. Even assuming, however, that the addition of the word "tangible" to modify "benefits" in the present version worked a substantive change in the law, that change only narrowed the breadth of the Act's prohibition. Because 3702-A is even narrower than the former 3702, the Supreme Court's summary dismissal of MSTA, in which the Supreme Court necessarily rejected the ____ overbreadth and compelling interest challenges described above, is binding precedent on whether 3702-A is overbroad in the senses just discussed. See Glen Theatre, Inc. v. ___ ___________________ Pearson, 802 F.2d 287, 290 (7th Cir. 1986) (if issue of _______ overbreadth is raised in jurisdictional statement, Supreme Court's summary affirmance binds lower courts on that issue). C. Underinclusiveness __________________ -26- While the MSTA appeal foreclosed present ____ overbreadth claims, appellants raise other claims which in our view, the appeal has not foreclosed. We turn to these. Facial First Amendment challenge is allowed to statutes burdening speech that are so grossly underinclusive _____ as to cast doubt on the compelling nature of the state's asserted interest. See R.A.V., 112 S. Ct. at 2547 (facially ___ ______ invalidating ordinance that applied only to "fighting words" that provoke violence "on the basis of race, color, creed, religion or gender."); Florida Star v. B.J.F., 491 U.S. 524, ____________ ______ 541-42 (1989) (Scalia, J., concurring) ("a law cannot be regarded as protecting an interest 'of the highest order,' and thus justifying a restriction on truthful speech, when it leaves appreciable damage to that supposedly vital |