CHICAGO (CN) — The ACLU argued before the Seventh Circuit on Wednesday that an Indiana bail law unfairly targets charitable organizations and violates their free speech rights, while an attorney for the state countered that paying bail is not expressive conduct.
Under the new law known as House Bill 1300, nonprofits that pay the bail of more than three people in a span of 180 days are subject to regulations that require them to obtain a certification.
The issuance of that certification comes from the state, and the ACLU claims in its federal lawsuit against HB 1300 that the criteria are vague and left at the discretion of the commissioner of the Indiana Department of Insurance.
The civil rights group says the law takes aim at the plaintiff The Bail Project, which lobbies against mass incarceration and the cash bail system by paying the pretrial bail for detainees who lack the means.
Even if certification was granted, the law would still prevent The Bail Project from paying the cash bail of those accused of violent crimes or those facing felony charges with a past conviction for a violent crime.
The ACLU claims that the restrictions and certification requirements violate The Bail Project’s First Amendment rights, but the case hit a snag when U.S. District Judge Patrick Hanlon found in June that the groups failed to show they were likely to win the case and denied their request to halt the law.
“The Indiana General Assembly undoubtedly has an interest in regulating pretrial release of defendants in criminal cases,” wrote Hanlon, a Donald Trump appointee. “The Bail Project thus has not shown a likelihood of success on its claim that Indiana has no interest in regulating charitable bail organizations.”
The groups appealed the ruling to the Chicago-based Seventh Circuit, and argued before a three-judge panel Wednesday that the lower court was wrong to not block enforcement of HB 1300.
“The Bail Project exists for one purpose: to advocate for the end of cash bail. It does this through conduct, what the commissioner has labeled as a social experiment,” said ACLU attorney Kenneth Falk. “The district court erred in holding that this conduct was not expressive conductive protected by the First Amendment.”
Attorney Aaron Craft of the Indiana Attorney General’s Office appeared on behalf of the state and argued that paying bail is not speech because it does not communicate a message.
“This act is done by everyone, defendant’s families, bail agents, maybe members of a church and The Bail Project. And it’s done the same way,” Craft said. “Someone appears, they pay, the clerk takes the money. Absent The Bail Project’s speech there is nothing that sets The Bail Project’s conduct apart from everyone else’s.”
Throughout the 30-minute hearing, the three judges centered their line of questioning to both sides on that issue.
U.S. Circuit Judge Thomas Kirsch, a Trump appointee, posed questions about how the context of speech matters.
“Doesn’t it have to do with the context, too? If you burn a flag at an anti-war rally, you are engaging in expressive conduct,” Kirsch said. “If I go into a Walgreens and burned a flag this afternoon I’d probably be arrested.”
Craft agreed with the example and said context does matter, and went on to reiterate his argument that The Bail Project’s paying of cash bail is not different enough from anyone else doing it to be considered expressive conduct.
U.S. Circuit Judge Candace Jackson-Akiwumi questioned if the context and perception of paying bail could change over time, and if that affects the way the law should be viewed. The Joe Biden appointee specifically asked Craft if paying someone else's bail could be seen as expressive 10 years from now.
“The analysis might be slightly different, but the context hasn’t changed,” Craft responded.
Rounding out the panel was U.S. Circuit Judge Joel Flaum, a Ronald Regan appointee who expressed the same concern raised by the ACLU that the law seemingly only targets The Bail Project.
“Can you honestly stand here today and say this wasn’t focused solely on one project and whether we should read into that recognition by the Legislature that there is an attempt at speech here?" Flaum asked.
Craft said there were a few instances where people bailed out by The Bail Project went onto to commit further crimes, and that state lawmakers responded.
Agreeing that the law seems to target groups like The Bail Project, Jackson-Akiwumi noted it does not prevent a group like a church from bailing out third parties.
Craft concluded his arguments by saying the Legislature recognized there are different reasons why someone would choose to pay the bail of someone else and the law does not violate equal protection or free speech rights.
During his rebuttal, Falk argued the targeted nature of the law should show that The Bail Project is engaging in expressive conduct protected under the First Amendment.
“This is a situation where the state has reached out in a situation where everyone in the universe can pay bail, but not The Bail Project,” Falk said. “That is obviously a reaction to The Bail Project’s conduct.”
The judges did not indicate when they would issue a ruling.
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