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A split 7th Circuit Court of Appeals has affirmed a district court’s denial of The Bail Project’s motion for a preliminary injunction against a law that puts limits on whom charitable bail organizations can bail out of jail.
Judge Thomas Kirsch wrote the majority opinion Thursday in The Bail Project, Inc. v. Commissioner, Indiana Department of Insurance, 22-2183. Senior Judge Joel Flaum concurred while Judge Candace Jackson-Akiwumi dissented.
Plaintiff-appellant The Bail Project is a nonprofit organization that advocates for the abolition of cash bail. It also pays cash bail for thousands of individuals across the country.
According to court records, The Bail Project began operating in Indiana in 2018 and has assisted approximately 1,000 pretrial defendants in Marion and Lake counties. Its clients in Indiana include those who have been charged with, or previously convicted of, offenses that qualify as crimes of violence under state law.
But last year, the Indiana Legislature passed, and the governor signed into law, House Enrolled Act 1300, which requires charitable bail organizations to register with the state and establishes limits for whom those groups can pay cash bail.
The Bail Project and the American Civil Liberties Union of Indiana sued in the United States District Court of the Southern District of Indiana, alleging the law would violate the bail organization’s First Amendment rights and its rights under the equal protection clause of the 14th Amendment. The group requested a preliminary injunction to prohibit the Indiana Department of Insurance from enforcing the law.
The district court issued an order in June 2022 denying the preliminary injunction after concluding that The Bail Project had not shown a likelihood of success on the merits of its motion.
The Bail Project appealed, and the 7th Circuit majority affirmed.
According to Kirsch, the principal question on appeal is whether the conduct HEA 1300 regulates — the payment of cash bail — is protected by the First Amendment. The appellate majority determined the answer is “no.”
That’s because, according to Kirsch, “Conduct that does not convey a message without the aid of additional speech … receives no First Amendment protection.”
The Bail Project argued that its payment of bail is inherently expressive conduct because it intends to convey a message through bail payments and, when viewed in context, a reasonable observer would understand its payment as communicative.
But the appellate court disagreed that the act of paying cash bail inherently expresses any message.
“On its own, paying bail for a pretrial defendant does not communicate even the most general version of The Bail Project’s message — its opposition to cash bail,” Kirsch wrote. “Without knowledge of The Bail Project’s mission and repeat-player status, a reasonable observer would not understand its payment of cash bail at the clerk’s office as an expression of any message about the bail system.”
The appellate majority also concluded that the law does not violate the equal protection clause because it is rationally related to the state’s legitimate interest in regulating pretrial detention of criminal defendants.
“The legislature could have determined that charitable bail organizations have different incentives, resources, and ties to the community than other bail payors, and therefore, that it was appropriate to treat them differently than bail payors who risk their own money and weigh their own safety to bail out a defendant,” Kirsch wrote. “Perhaps this is bad policy, perhaps not. That is not for us to say.
“… In sum, The Bail Project’s payment of bail is not inherently expressive conduct, and the distinctions HEA 1300 draws between charitable bail organizations and other bail payors is rationally tied to Indiana’s legitimate interest in regulating its pretrial detention system,” the majority concluded. “Accordingly, The Bail Project has not demonstrated a likelihood of success in its constitutional challenge to HEA 1300, and we affirm the district court’s denial of a preliminary injunction.”
In her dissent, Jackson-Akiwumi pointed to Spence v. State of Washington, 418 U.S. 405 (1974), which “held that, to determine whether conduct ‘possesses sufficient communicative elements to bring the First Amendment into play,’ courts must ask whether (1) ‘[a]n intent to convey a particularized message was present,’ and (2) ‘the likelihood was great that the message would be understood by those who viewed [the conduct].'”
According to Jackson-Akiwumi, the majority opinion does not properly consider context and audience when asking whether observers of The Bail Project’s conduct understand, without the assistance of explanatory speech, that a message is being conveyed.
“When considering the context — including the relevant audience — of The Bail Project’s actions, I see a high likelihood that those who observed the conduct understood that some type of message was being conveyed,” she wrote. “I would remand to the district court for further proceedings on whether The Bail Project has a likelihood of success on the merits for preliminary injunction purposes.”
Addressing Jackson-Akiwumi’s argument, Kirsch wrote, “The dissent views HEA 1300 as proof that the Indiana legislature was perhaps the most relevant observer of The Bail Project’s conduct. That far-reaching view of a reasonable observer — to include legislative bodies not present when the conduct occurs but aware of it after-the-fact and in the aggregate — cannot be squared with” Rumsfeld v. F. for Acad. & Inst. Rts., Inc., 547 U.S. 47 (2006). The majority cited Rumsfeld in its “inherently expressive” analysis.
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