Virden v. City of Austin ( 2021 )

Case: 21-50597 Document: 00516068453 Page: 1 Date Filed: 10/25/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
October 25, 2021
No. 21-50597 Lyle W. Cayce
Clerk
Jennifer Virden,
Plaintiff—Appellant,
versus
City of Austin, Texas,
Defendant—Appellee.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:21-CV-271
Before Stewart, Haynes, and Graves, Circuit Judges.
Per Curiam:*
Jennifer Virden appeals the denial of her request for a preliminary
injunction enjoining enforcement of an Austin, Texas ordinance. The
ordinance at issue prevents candidates running for city office from soliciting
or receiving campaign contributions until one year before an election.
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 21-50597 Document: 00516068453 Page: 2 Date Filed: 10/25/2021
No. 21-50597
Concluding that Virden has failed to establish irreparable harm, we
AFFIRM.
I. Background
Virden is an Austin resident who recently became involved in Austin
politics. She unsuccessfully ran for city council in November 2020 and is
currently running for mayor in the November 2022 election. A city
ordinance provides that a candidate may only raise funds for an election
during the authorized campaign period, which begins “the 365th day before
the date of the general election.” Austin, Tex., Code of Ordinances ch. 2-2,
art. 1, §§ 2-2-7(B), (G) (2017). Accordingly, Virden is barred from soliciting
or receiving campaign contributions until November 8, 2021.
Alleging that the relevant provisions of § 2-2-7 violate her First
Amendment free speech rights, Virden challenged the ordinance in district
court and sought a preliminary injunction enjoining its enforcement.
Concluding that Virden failed to show irreparable harm, the district court
denied Virden’s motion. Virden timely appealed.
II. Jurisdiction & Standard of Review
A threshold issue in this case is whether Virden has standing to pursue
her claim against the City. We have “jurisdiction to determine [our] own
jurisdiction,” United States v. Ruiz, 536 U.S. 622, 628 (2002), and review
questions of standing de novo, Ctr. for Individual Freedom v. Carmouche, 449
F.3d 655, 659 (5th Cir. 2006). If Virden has standing, the district court had
jurisdiction over Virden’s claims pursuant to 28 U.S.C. §§ 1331 and 1343,
and we have appellate jurisdiction over the district court’s order under 28
U.S.C. § 1292(a)(1).
We review the denial of a preliminary injunction for abuse of
discretion. Robinson v. Hunt Cnty., 921 F.3d 440, 451 (5th Cir. 2019). The
2
Case: 21-50597 Document: 00516068453 Page: 3 Date Filed: 10/25/2021
No. 21-50597
district court’s factual determinations are reviewed for clear error, and its
legal conclusions are reviewed de novo. Id.III. Discussion
Standing
The City argues that Virden lacks standing because she does not have
a legally protected interest in receiving campaign funds. We disagree. To
establish standing, Virden must demonstrate that she has suffered “injury-
in-fact”—a “concrete and particularized” “invasion of a legally protected
interest”—that is “fairly traceable” to the challenged conduct and
redressable by a favorable judicial ruling. See Lujan v. Defs. of Wildlife, 504
U.S. 555, 560–61 (1992) (internal quotation marks, brackets, and citation
omitted). Virden has alleged facts demonstrating that she has suffered an
economic injury—a loss of funding—that is fairly traceable to the challenged
ordinance and redressable by a favorable decision and is specific to her, not
generalized as to all voters. 1 Accordingly, Virden has standing to pursue her
claim against the City.
Irreparable Harm
To receive preliminary injunctive relief, a plaintiff “must establish
that he is likely to succeed on the merits, that he is likely to suffer irreparable
harm in the absence of preliminary relief, that the balance of equities tips in
his favor, and that an injunction is in the public interest.” Winter v. Nat. Res.
1
Whether Virden has a constitutionally protected right to receive campaign
contributions is relevant to the merits of her First Amendment claim, not to whether she
has suffered an injury-in-fact necessary to establish standing. See N. Cypress Med. Ctr.
Operating Co., Ltd. v. Cigna Healthcare, 781 F.3d 182, 191 (5th Cir. 2015) (“When
considering whether a plaintiff has Article III standing, a federal court must assume
arguendo the merits of his or her legal claim.” (quotation and brackets omitted)).
3
Case: 21-50597 Document: 00516068453 Page: 4 Date Filed: 10/25/2021
No. 21-50597
Def. Council, Inc., 555 U.S. 7, 20 (2008). Here, the district court denied
Virden’s preliminary injunction request, concluding that Virden failed to
establish irreparable harm in part because the temporal restriction at issue
did not burden her “core First Amendment right” to free speech. We agree.
Supreme Court precedent regarding First Amendment campaign
finance distinguishes between the First Amendment rights of a contributor
and those of a candidate. See, e.g., Buckley v. Valeo, 424 U.S. 1, 24, 44–45
(1976) (per curiam). A contributor has a constitutionally protected right of
association, typically expressed by donating money to candidates or political
action committees (“PACs”). 2 See id. at 24–25. A candidate, on the other
hand, has a constitutionally protected right of political expression, typically
exercised by spending money on political communications. See id. at 19–20.
In other words, Virden’s constitutionally protected interest is in spending
money—not receiving it.
The temporal restriction at issue does not prevent Virden from
spending her own money to disseminate speech, nor does it prevent her from
speaking. 3 Virden, however, seeks money to speak “more robustly.” But
the First Amendment does not provide her that right. Cf. Regan v. Tax’n
With Representation of Wash., 461 U.S. 540, 550 (1983) (“Although [the
plaintiff] does not have as much money as it wants, and thus cannot exercise
2
Virden urges that she has associational rights to receive campaign contributions
because “[j]ust as a contributor associates with a candidate by making the contribution, the
candidate is associating with the contributor by receiving it.” But Virden cites no case law
supporting this assertion.
3
Relying on Texans for Free Enterprise v. Texas Ethics Commission, 732 F.3d 535, 539
(5th Cir. 2013), Virden asserts that the ordinance indirectly burdens her speech because
“[b]anning acceptance of contributions burdens and prevents the speech that [she]
desires.” But her reliance on Texans for Free Enterprise is inapposite. The party challenging
the regulation in that case was a PAC (i.e., a contributor), not a candidate.
4
Case: 21-50597 Document: 00516068453 Page: 5 Date Filed: 10/25/2021
No. 21-50597
its freedom of speech as much as it would like, the Constitution does not
confer an entitlement to such funds as may be necessary to realize all the
advantages of that freedom.” (quotation omitted)).
In sum, because Virden is not a contributor challenging the City’s
temporal ban on contributions, and because Virden cannot point to any
precedent otherwise establishing that she has a First Amendment right to
receive money as a candidate, we conclude that Virden has failed to establish
that she is likely to suffer irreparable harm absent a preliminary injunction. 4
Thus, the district court did not abuse its discretion in denying Virden’s
request for a preliminary injunction.
AFFIRMED.
4
Because we conclude that Virden has failed to establish irreparable harm, we do
not discuss the three other preliminary injunction factors.
5