Argued: March 20, 2019
from the United States District Court for the District of
Maryland, at Baltimore. Ellen L. Hollander, District Judge.
Stephen Ralph Klein, PILLAR OF LAW INSTITUTE, Washington,
D.C., for Appellant.
William Trento, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND,
Baltimore, Maryland, for Appellees.
E. Frosh, Attorney General, John R. Grimm, Assistant Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND,
Baltimore, Maryland, for Appellees.
GREGORY, Chief Judge, and KING and FLOYD, Circuit Judges.
Dennis Fusaro, a Virginia resident, challenges § 3-506
of Maryland's Election Law, which regulates access to
Maryland's list of registered voters (the
"List"). Section 3-506 provides, inter alia, that
the State Board of Elections shall provide copies of the List
only to registered Maryland voters, and confines use of the
List to purposes related to the electoral process. After
Fusaro was denied a copy of the List because he was not a
registered Maryland voter, he sued the defendant state
officials in the District of Maryland, alleging that §
3-506 violates the Free Speech Clause of the First Amendment
and that the provision's reference to the "electoral
process" is unconstitutionally vague. Fusaro sought a
preliminary injunction barring enforcement of § 3-506 as
to its registered voter requirement and its restrictions on
use of the List. The district court dismissed Fusaro's
complaint and denied injunctive relief on the ground that
Fusaro had no First Amendment right to access the List. As
explained below, we are satisfied that, with respect to his
free speech challenge, Fusaro has stated a claim under the
First Amendment. We therefore vacate and remand for further
Plaintiff Dennis Fusaro is a resident of and registered voter
in Stephens City, Virginia. Fusaro has worked for a number of
regional and national political campaigns, and intends to
"continue his involvement in elections and political
advocacy," including in Maryland. See Fusaro v.
Davitt, No. 1:17-cv-03582 at ¶¶ 16-17 (D. Md.
Dec. 4, 2017), ECF No. 1 (the "Complaint"). In
2014, Fusaro consulted for a successful campaign for a County
Council seat in Anne Arundel County, Maryland. In 2016,
Fusaro was charged by the state prosecutor with violating
criminal provisions of Maryland's Election Law in
connection with his work in the 2014 campaign. Id.
¶ 1 (citing State v. Fusaro, D-07-CR-16-00734
(D. Ct. Anne Arundel Co.)); see also Fusaro v.
Davitt, No. 1:17-cv-03582 (D. Md. Dec. 4, 2017), ECF No.
20-2 (criminal information filed in Fusaro's
February 2017, Fusaro was convicted of the alleged Election
Law violations after a bench trial in Maryland state court.
In August 2017, however, Fusaro obtained a new trial before a
jury and was acquitted. Following those events, Fusaro sought
to express his displeasure with the state prosecutor by
"shar[ing] his story with Maryland citizens" and
urging them to seek the prosecutor's resignation.
See Complaint ¶ 2. Fusaro planned to achieve
his goal - that is, the prosecutor's resignation - by
mailing copies of a letter criticizing the prosecutor to
registered Maryland voters.
object of Fusaro's displeasure was defendant Emmett C.
Davitt, the Maryland State Prosecutor at all relevant
times. The State Prosecutor possesses statutory
authority to investigate and prosecute violations of Maryland
law. See Md. Code Crim. P. §§ 14-107(a),
14-109(a). The State Prosecutor is appointed by the Governor
of Maryland, with the advice and consent of the Maryland
Senate. Id. § 14-102(c)(1). It is not an
facilitate his letter campaign against Davitt, Fusaro sought
a copy of Maryland's list of registered voters. The List
is maintained by the Maryland State Board of Elections (the
"State Board"). See State Board, Voter
According to the State Board, the List contains the names,
addresses, party affiliation, and other personal data of the
nearly four million voters registered in Maryland.
See Complaint ¶¶ 3-4; see also
State Board, Eligible Active Voters on the Precinct
Register - By County (Oct. 20, 2018),
_County.pdf; State Board, Application for Voter
https://elections.maryland.gov/pdf/SBEAPPL.pdf. Fusaro planned to
use the List to circulate his letter criticizing Davitt and
urge Maryland voters to seek his resignation, notwithstanding
that Davitt holds an appointed (rather than elected) office.
his plan, Fusaro applied for a copy of the List from the
State Board in August 2017. The Board promptly rejected
Fusaro's application because he did not satisfy the
statutory requirements to obtain a copy of the List. The
statutory provisions concerning the maintenance and
distribution of the List are codified in Subtitle 5 of Title
3 of Maryland's Election Law. Section 3-506 governs the
dissemination of copies of the List and provides as follows:
(a) (1) A copy of a list of registered voters shall be
provided to a Maryland registered voter on receipt of:
(i) a written application; and
(ii) a statement, signed under oath, that the list is not
intended to be used for:
1. commercial solicitation; or
2. any other purpose not related to the electoral process. [
. . . ]
(c) A person who knowingly allows a list of registered
voters, under the person's control, to be used for any
purpose not related to the electoral process is guilty of a
misdemeanor and, on conviction, is subject to the penalties
under Title 16 [of the Election Law].
See Md. Code Election Law, § 3-506(a), (c).
Additionally - and relevant here - § 3-505 of the
Election Law makes the voter registration records "open
to public inspection" at local offices of the State
Board. Id. § 3-505(b)(1). Those records may
also be removed from the local State Board office "on
order of a court," or "for temporary removal solely
for purposes of data processing." Id. §
State Board's rejection of Fusaro's application for
the List complied with § 3-506. Fusaro's application
included his home address in Virginia. Thus, as the Board
explained in its subsequent correspondence with Fusaro, it
rejected his application because, under § 3-506,
"you must be a Maryland resident and registered voter to
request a copy of the voter registration list."
See Complaint, Ex. D. Confirming the State
Board's written explanation, Fusaro's rejected
application contains a notation from the Board indicating
that the rejection was based on the fact that Fusaro was not
a registered Maryland voter. Fusaro does not allege or
identify any other reason for the Board's rejection of
his application. Notably, the Complaint does not indicate
that Fusaro has ever sought to obtain Maryland voter
registration records from a local office of the State Board.
Nor does Fusaro allege that he intends to seek Maryland
residency and register as a Maryland voter. Fusaro
acknowledges that, pursuant to Maryland law, he is not
entitled to register to vote in Maryland as long as he
remains a resident of Virginia. Id. ¶ 4 (citing
Md. Code Election Law § 3-102(a)(1)(iii)).
sued Davitt and various members of the State Board in the
District of Maryland on December 4, 2017. Fusaro's
Complaint alleges two challenges against § 3-506. The
Complaint first alleges that providing copies of the List
only to registered Maryland voters contravenes the Free
Speech Clause of the First Amendment because it favors
"some political speakers" over others, namely,
anyone not registered to vote in Maryland (Count I).
See Complaint ¶ 30. Second, the Complaint
alleges that the prohibition against using the List for any
purpose "not related to the electoral process"
restricts speech based on content and is unconstitutionally
vague, in violation of the First and Fourteenth Amendments
(Count II). The Complaint presents each count as both facial
and as-applied challenges, and it seeks declaratory and
injunctive relief. As attachments to the Complaint, Fusaro
included his proposed letter urging Maryland voters to seek
Davitt's resignation; his rejected application for the
List; and his correspondence with the Board regarding that
thereafter, on December 15, 2017, Fusaro requested a
preliminary injunction from the district court. Specifically,
Fusaro sought to bar enforcement of the portions of §
3-506 that limit access to the List to registered Maryland
voters only, and that prohibit using the List for purposes
unrelated to the electoral process. In response, the
defendants filed a consolidated memorandum on January 26,
2018, which included a motion to dismiss the Complaint and
their opposition to Fusaro's request for a preliminary
September 4, 2018, the district court granted the
defendants' motion to dismiss and denied Fusaro's
request for a preliminary injunction. See Fusaro v.
Davitt, No. 1:17-cv-03582 (D. Md. Sept. 4, 2018), ECF
No. 26 (the "Opinion"). The Opinion rejected
Fusaro's challenge to § 3-506 as a violation of the
Free Speech Clause. Instead, the Opinion determined that
§ 3-506 merely regulated access to a record created and
maintained by the government of Maryland. Relying primarily
on the Supreme Court's decisions in Houchins v. KQED,
Inc., 438 U.S. 1 (1978), and Los Angeles Police
Department v. United Reporting Publishing Corporation,
528 U.S. 32 (1999), the Opinion ruled that Fusaro had no
First Amendment right of access to such government
information. See Opinion 25-26. Because both counts
of the Complaint were predicated on the proposition that
Fusaro had a First Amendment right to the List, the Opinion
dismissed the Complaint in its entirety and denied injunctive
relief. Fusaro has timely appealed the judgment and we
possess appellate jurisdiction pursuant to 28 U.S.C. §
Court reviews de novo a dismissal under Federal Rule of Civil
Procedure 12(b)(6). See Nemet Chevrolet, Ltd. v.
Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir.
2009). In conducting such a review, we assume all
well-pleaded facts are true and draw all reasonable
inferences in favor of the plaintiff. Id. Viewing
the complaint in that light, a plaintiff must plead
"sufficient factual matter" to "'state a
claim to relief that is plausible on its face.'"
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). We will consider documents attached to the
complaint, "as well as those attached to the motion to
dismiss, so long as they are integral to the complaint and
authentic." Philips v. Pitt Cty. Mem. Hosp.,
572 F.3d 176, 180 (4th Cir. 2009). And we review de novo a
district court's rulings on the constitutionality of
statutory provisions. See, e.g., Miller v.
Brown, 503 F.3d 360, 364 (4th Cir. 2007). Lastly, we
review the denial of a preliminary injunction for abuse of
discretion. See Dewhurst v. Century Aluminum Co.,
649 F.3d 287, 290 (4th Cir. 2011). In so doing, we review
factual findings for clear error and assess legal conclusions
de novo. Id.
primary issue presented in this appeal is whether
Fusaro's unsuccessful attempt to obtain a copy of the
List presents a cognizable First Amendment claim. The
district court determined that Fusaro's claims amounted
to nothing more than an alleged First Amendment right to
access a government record. The Opinion explained that, as a
general matter, no such right exists - at least, not under
the circumstances alleged - and the court dismissed the
Complaint on that basis. Fusaro maintains, however, that
§ 3-506 burdens speech by limiting access to the List
and the purposes for which the List may be used, in
contravention of the First Amendment. We must assess whether
Fusaro's alleged injury is protected by the Free Speech
Clause of the First Amendment, and, if so, the level of
scrutiny that applies to the challenged provisions of §
3-506. We will then address Fusaro's vagueness challenge,
as well as his request for a preliminary injunction.
Free Speech Clause of the First Amendment provides that
"Congress shall make no law . . . abridging the freedom
of speech." See U.S. Const. amend. I. The Free
Speech Clause applies to the states by way of the Fourteenth
Amendment. See Snyder v. Phelps, 580 F.3d 206, 214
n.4 (4th Cir. 2009) (citing Stromberg v. California,
283 U.S. 359, 368 (1931)). That short but forceful phrase has
given rise to a complex array of legal protections for free
expression, which the courts have flexibly applied in a
variety of circumstances. Those precedents establish that the
First Amendment protects speech along a spectrum, so that
"[l]aws that impinge upon speech receive different
levels of judicial scrutiny depending on the type of
regulation and the justifications and purposes underlying
it." See Stuart v. Camnitz, 774 F.3d 238, 244
(4th Cir. 2014).
end of the applicable spectrum, "regulations that
discriminate against speech based on its content are
presumptively invalid" and are usually subject to strict
scrutiny. See Stuart, 774 F.3d at 244 (internal
quotation marks omitted). That is, such regulations must be
"necessary to serve a compelling state interest"
and "narrowly drawn to achieve that end." See
Simon & Schuster, Inc. v. Members of N.Y. State Crime
Victims Bd., 502 U.S. 105, 118 (1991). "Laws that
burden political speech" are also generally subject to
strict scrutiny. See Ariz. Free Enter. Club's Freedom
Club PAC v. Bennett, 564 U.S. 721, 734 (2011). Further
down the spectrum, "areas traditionally subject to
government regulation, such as commercial speech and
professional conduct, typically receive a lower level of
review." See Stuart, 774 F.3d at 244 (internal
quotation marks and alterations omitted). Within that
spectrum, the federal courts have employed various
multi-factor tests designed to achieve an
"intermediate" level of review that can be sensibly
applied in a range ...