Paid Petition Circulators Still Protected by First Amendment… and HB 1094 Ruling?

Thinking about initiatives gets me thinking about petitions and the challenges folks will face come November when they start collecting signatures to place substantive policy measures on South Dakota’s 2022 ballot. I’d like to think a petition drive could serve as a coronavirus-relief jobs program: out of the thousands of South Dakotans who’ve lost jobs due to the pandemic recession, I’d think we could find at least a hundred with ambition, good people skills, and a willingness to scrub up, mask up, and carry a huge sack of free pens.

Of course, those paid circulators will still have to deal with the mandates of Senate Bill 180, in which we mandate that paid petitioners wear badges and pre-register in a public database to allow contact tracing.

—Pause: I know SB 180 was debated and finalized before coronavirus hit, but note that the State of South Dakota imposes more mandates on people engaged in democratic discourse than on people engaged in behaviors far more likely to spread coronavirus.—

I’ve noted previously the persistent constitutional dubiousness of SB 180’s badge and registry mandate. SB 180 was the Legislature’s attempt to rectify the constitutional violations it committed with its previous, very different, and far more extensive circulator registry and badge law, 2019 House Bill 1094. SB 180 attempts to avoid court scrutiny by focusing its viewpoint discrimination solely on paid circulators, not volunteers. (Yes, read that again: if you don’t take money for handling upcoming ballot measure petitions, you don’t have to register, and you don’t have to wear a badge.)

Alas for the Republican sponsors of SB 180 and other enemies of initiative and referendum, taking money for engaging in First Amendment activity doesn’t mean it’s no longer First Amendment activity:

In Bigelow v. Virginia (1975), the Supreme Court ruled that an individual had the right to advertise in Virginia the availability of abortion services in New York although the procedures were at the time illegal in Virginia. Justice Harry A. Blackmun observed, “The existence of commercial activity, in itself, is no justification for narrowing the protection of expression secured by the First Amendment.”

Shortly thereafter in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976), the Supreme Court extended First Amendment free speech protection to commercial speech. Writing for the Court in striking down a state law making it illegal for pharmacies to advertise the price of drugs, Justice Blackmun asserted that the First Amendment not only includes the right of the speaker to speak but also right of the listener to receive information. In this case, consumers had a right to receive lawful information about drug prices.

Moreover, the Court also noted that speech does not lose its protection simply because money is transacted through it. To support that claim, the Court cited political communications involving political contributions and expenditures. Thus, Blackmun concluded that commercial speech, even a communication such as advertising, which merely suggests a business transaction, is protected by the First Amendment [David Schultz, “Commercial Speech,” Middle Tennessee State University Free Speech Center: The First Amendment Encyclopedia, 2009].

I still much prefer non-commercial, volunteer petition circulation. But citizens engaged in the core political speech of soliciting and collecting signatures on a petition enjoys the same First Amendment protection as volunteers doing that same sacred work out of the goodness of their democratic hearts. HB 1094 failed in court because it required everyone carrying initiative petitions (and a lot of people not touching petitions!) to pre-register with the state and wear badges. SB 180 won’t escape court scrutiny just because it applies those onerous, speech-chilling restrictions to a smaller subset of people who happen to take pay for their petition efforts.