Appeal from the United States District Court for the District of Hawaii.
The opinion of the court was delivered by: Canby, Circuit Judge
Argued and Submitted April 12, 1994
Before: SCHROEDER, D.W. NELSON and CANBY, Jr., Circuit Judges.
Hawaii Rev.Stat. § 11-216(d) prohibits disclosure of information concerning investigations undertaken by Hawaii's Campaign Spending Commission. The State of Hawaii appeals the district court's grant of summary judgment, which enjoined enforcement of the statute on the ground that it violates the First Amendment of the United States Constitution, both as applied to appellee Lind and on its face. We affirm.
When a complaint is filed with Hawaii's Campaign Spending Commission, the Commission is required to determine whether there is probable cause that a campaign spending violation occurred, and if so, whether that violation was unintentional or willful. Haw.Rev.Stat. § 11-216. If the Commission finds probable cause that a willful violation occurred, it must advise the lieutenant governor, and it may initiate a prosecution. Haw.Rev.Stat. § 11-216(f)-(g). If it finds probable cause that an unintentional violation occurred, it must order the cited party to remedy that violation. Haw.Rev.Stat. § 11-216(f). If it finds no probable cause, it need take no further action. See id.
At issue in this appeal is Haw.Rev.Stat. § 11-216(d), which requires that all aspects of the Commission's activities remain confidential while an investigation is pending, and that the entire record of an investigation remain confidential if the Commission determines that there is no probable cause that a violation occurred:
Until a determination of probable cause is made by the commission, all proceedings, including the filing of the complaint, investigation, and hearing shall be confidential unless the person complained of requests an open hearing. In the event the commission determines that probable cause does not exist, the complaint shall be dismissed and the entire record of the proceedings shall be kept confidential at the option of the person complained of. Breach of this provision is a crime punishable by up to thirty days in jail and a fine of up to $1,000. Haw.Rev.Stat. § 11-228; § 706-663.
Appellee Ian Lind was author, editor, and publisher of the "Hawaii Monitor," an independent non-partisan newsletter devoted to discussing election campaign issues. In June of 1992, Lind published in his newsletter the fact that he had filed a complaint against the University of Hawaii Professional Assembly alleging that the Assembly failed to disclose certain campaign contributions during the 1990 election and that it made excessive and prohibited contributions in support of Governor John D. Waihee's election. The Assembly responded by asking the Commission to clarify the applicability of section 11-216(d) to Lind's complaint. The Commission, in turn, decided to treat this request as a complaint against Lind for violation of section 11-216(d). Lind responded by bringing this action in federal district court seeking a declaration that section 11-216(d) violated his rights under the First Amendment, and an injunction against its enforcement.
Just fifteen days after Lind's complaint was filed, the parties submitted to the district court a stipulation of settlement, proposing that the court dismiss Lind's complaint with prejudice and declare that section 11-216(d) violated the First Amendment and was unenforceable. The district court, however, refused to do so without additional briefing. Thereafter, the State changed its position and decided to defend the statute. Following cross motions for summary judgment, the district court held section 11-216(d) unconstitutional as applied to Lind, held it unconstitutionally overbroad, and permanently enjoined its enforcement. This appeal followed.
A statute regulating speech is content-neutral only if the state can justify it without reference either to the content of the speech it restricts or to the direct effect of that speech on listeners. Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989). Here, the State asserts a variety of purposes for section 11-216(d); it serves: (a) to prevent the Commission's credibility from being invoked to support "scandalous charges," (b) to protect "fledgling political groups and candidates [from] the publicity that would befall them from open proceedings," (c) to prevent candidates and their supporters from being "unduly tarred by a vindictive complaint," (d) to promote settlement of disputes over violations of spending laws, and (e) to eliminate distractions and collateral concerns that would exist if commission proceedings were made public. Because these concerns all stem from the direct communicative impact of speech, we conclude that section 11-216(d) regulates speech on the basis of its content.*fn1 Moreover, the speech it restricts, speech about political processes and governmental investigations of wrongdoing by public officials, falls near to the core of the First Amendment. See New York Times v. Sullivan, 376 U.S. 254, 270-71, 84 S.Ct. 710, 720-21, 11 L.Ed.2d 686 (1964). Therefore, the statute is presumptively unconstitutional. See R.A.V. v. City of St. Paul, 505 U.S. 377, ----, 112 S.Ct. 2538, 2542, 120 L.Ed.2d 305 (1992). It will survive scrutiny only if it is narrowly drawn and is necessary to serve a compelling state interest, Boos v. Barry, 485 U.S. 312, 321, 108 S.Ct. 1157, 1164, 99 L.Ed.2d 333 (1988), or if the speech it regulates otherwise is undeserving of full protection, see, e.g., R.A.V., 505 U.S. at ----, 112 S.Ct. at 2543 (listing categories); Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984) (devaluing information acquired through civil discovery).