Central Student Judiciary
Michigan Student Assembly


Hamdan A. YOUSUF,
Appellant

v.

Matthew TALLEY,
Respondent

case number F-09-03

February 25, 2010

OPINION

Justice RINGWOOD delivered the Opinion of the Court, joined by Associate Chief Justice PARTICKA and Justice MELTZER. Chief Justice HUSTON dissents in part, joined by Justice AVERILL.

Introduction

Appellant Hamdan YOUSUF (“Appellant”) appeals the December 9, 2009 decision of the Election Board of MSA, Talley v. Yousuf. In Talley v. Yousuf, the Board assessed the Appellant a penalty of two (2) demerits under the MSA Compiled Code (“CC”) V.H.5.g for sending a campaign email to the um.graduate.students listserv, in violation of CC V.G.4.m.

Jurisdiction

This case was heard through CSJ’s appellate jurisdiction as provided under 51.12 of the CSJ Manual of Procedure (“CSJ MP”). CSJ MP 51.12 states that “CSJ may hear an appeal of the decision of any…judicial body established (or otherwise established) by MSA to hear cases in which a student…may appear as a defendant.”
Additionally, CC § 5.H.5.i states that “the respondent and/or petitioner may appeal any decision of the Election Board to CSJ.” CSJ’s jurisdiction over this matter was not in contention by any party.





Procedure


The CSJ determined, by majority vote, to certify five (5) questions to be briefed addressed in the course of the appellate proceeding. These questions were derived from Appellant’s Motion under CSJ MOP 51.25 to Amend Initial Filing. The questions were published in an Order issued by Chief Justice HUSTON on February 8, 2010:

1. Are §§ V.H.5.g and V.G.4.m of the MSA Complied Code unconstitutional in light of MSA Constitution §§ IX.A.15, IX.A.1, or IX.A.2?

2. Does the Election Board have jurisdiction to hear an election complaint filed against a party who has not been certified as an election candidate but who seeks to obtain write-in votes for office in an MSA election?

3. Does the action of sending an email to all members of a university graduate student listserv seeking write-in votes for office constitute a violation of MSA Compiled Code § V.G.4.m, and was that rule “fully and clearly formulated, published, and generally made known to everyone concerned” such that it may create liability under MSA Constitution § IX.A.11 as of November, 2009?

4. Does the action of sending an email to all members of a university graduate student listserv seeking write-in votes for office constitute a single offense under MSA Compiled Code § V.G.4.m or a series of offenses corresponding to the number of email recipients?

5. Can the sending of email to a list of which the sender is a member constitute “spam” as prohibited by MSA Compiled Code § V.G.4.m.?


Appellant’s Case

1. Are §§ V.H.5.g and V.G.4.m of the MSA Complied Code unconstitutional in light of MSA Constitution §§ IX.A.15, IX.A.1, or IX.A.2?

Appellant contends that MSA Complied Code sections V.H.5.g and V.G.4.m are unconstitutional in light of MSA Constitution sections IX.A.15, IX.A.1, and IX.A.2: “Democratic Government,” “Freedom of Speech,” and “Freedom to Publish,” respectively. Appellant argues that the Court should adopt the reasoning proffered by the Court in Anderson v. Celebrezze, 460 U.S. 780 (1983).
It must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests; it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights.

Anderson v. Celebrezze, 460 U.S. 780, 784 (1983).
Appellant contends that CC V.G.4.m, in its current form, imposes far greater harm upon candidates’ Constitutional rights than any benefit that results from its enforcement. Appellant additionally argues that the ambiguous wording of the statute in question is unacceptably vague. He asserts that the language of V.G.4.m is subject to more than one reasonable interpretation which may thus lead to arbitrary or discriminatory enforcement. This, the Appellant argues, is grounds for striking down the provision as unconstitutional.

2. Does the Election Board have jurisdiction to hear an election complaint filed against a party who has not been certified as an election candidate but who seeks to obtain write-in votes for office in an MSA election?

Next, Appellant argues that the Election Board does not have jurisdiction to hear an election complaint filed against a party who has not been certified as an election candidate and who seeks to obtain write-in votes for office in an MSA election. Appellant presents two arguments in support of his contention.
First, under CC V.H.5.g, Appellant argues that the Election Board has no greater disciplinary power than that of removing a candidate from the official ballot. He maintains that the wording “removed from the election,” as found in the statute, should be interpreted to mean “removed from the ballot.” Thus, Appellant asserts that the Election Board is not empowered to prevent a write-in candidate from being elected.
Second, Appellant claims that the term “candidate,” as it is found within Article V of the CC, is used in equivocal manners. For example, V.A.2 defines a candidate as
“a person seeking office in election” while V.B.d mandates that “candidates must file their candidacy application with the Election Director or Administration Coordinator.” The Appellant argues that it is untenable that the CC intends to require write-in candidates to file applications with the Election Board and that it would be unjust to interpret the code, considering its ambiguities, to the detriment of the Appellant. Thus, the Appellant asserts that the CC, specifically the word “candidate,” should not be interpreted in a manner that gives the Election Board jurisdiction over write-in candidates.

3. Does the action of sending an email to all members of a university graduate student listserv seeking write-in votes for office constitute a violation of MSA Compiled Code § V.G.4.m, and was that rule “fully and clearly formulated, published, and generally made known to everyone concerned” such that it may create liability under MSA Constitution § IX.A.11 as of November, 2009?

Appellant argues that the action of sending an email to all members of a university graduate student listserv, seeking write-in votes for office, does not constitute a violation of MSA Compiled Code section V.G.4.m and that V.G.4.m was not “fully and clearly formulated, published, and generally made known to everyone concerned” such that it would create liability under MSA Constitution § IX.A.11 as of November, 2009. The Appellant chose to frame his argument regarding Certified Question 3 vis-à-vis his response to Certified Question 5. Essentially, Appellant argues that definition of “spam” is far too ambiguous, as it is found in the statute, to be considered “fully and clearly formulated.” Appellant offers multiple definitions of the term “spam,” any combination of which, he argues, may entail what is meant by the V.G.4.m. Additionally, the Appellant asserts that his December 1, 2009 email could not be considered “spam” considering (1) the email was not commercial in nature, (2) it did not come from an unknown or untraceable source, (3) it was not sent indiscriminately, (4) it was sent to a list of which the Appellant is a member, and (5) the same message was not sent repeatedly.
The question of whether or not V.G.4.m was “published and generally made known to everyone concerned” was addressed in an evidentiary hearing before the Court heard arguments on the Certified Questions. The Appellant presented witnesses and cross-examined the Respondent’s witnesses, all of whom agreed the statute was widely available. Thus, this was not a great point of contention.


4. Does the action of sending an email to all members of a university graduate student listserv seeking write-in votes for office constitute a single offense under MSA Compiled Code § V.G.4.m or a series of offenses corresponding to the number of email recipients?

The Appellant asserts that the action of sending an email to all members of a list only constitutes a single offense under MSA Compiled Code section V.G.4.m, and does not constitute a series of offenses corresponding to the number of email recipients. The Appellant’s position is that the Election Board has defined spam as “unsolicited bulk email” per the Board’s decision in Talley v. Yousuf of December 3, 2009. Thus, the Board cannot concurrently find that “sending [an email] to a listserv of 19,000 members is functionally equivalent to manually specifying 19,000 recipients at the time an email is authored and sent,” resulting in the possibility of 19,000 violations of V.G.4.m of Compiled Code.
Appellant also argues that a second prosecution of the Appellant over a single email would violate his right under the MSA Constitution against Double Jeopardy in IX.A.20 (“The right not to be twice put in jeopardy for the same offense”). According to the Election Board’s definition of an offense under V.G.4.m – “unsolicited bulk email” – a trial in which demerits were assessed for the same email, he argues, would put him twice in jeopardy for the “same offense.”


5. Can the sending of email to a list of which the sender is a member constitute “spam” as prohibited by MSA Compiled Code § V.G.4.m.?

The Appellant argued that the sending of an email to a list of which the sender is a member does not constitute “spam” as prohibited by MSA Compiled Code section V.G.4.m. Certified Question 5 was addressed in conjunction with Certified Question 3 (see above).


Respondent’s Case

1. Are §§ V.H.5.g and V.G.4.m of the MSA Complied Code unconstitutional in light of MSA Constitution §§ IX.A.15, IX.A.1, or IX.A.2?

Respondent argues that MSA Complied Code sections V.H.5.g and V.G.4.m are constitutional and work in conjunction with MSA Constitution sections II.E , IX.A.1, IX.A.2, and IX.A.15. Respondent asserts that the All Campus Constitution (ACC) expressly grants the Michigan Student Assembly (MSA) in section II.H the power “to conduct its own election and referenda among the student body, to provide for the manner of nominating candidates in its elections and to enact campus-wide regulations governing the conduct of its elections, campaigns, and elated activity.” This power, he argues, does not conflict with sections 1, 2, or 15 of the Bill of Rights. Rather, Respondent maintains that restrictions embodied by the election code serve to ensure a fair election (ACC II.H) and to ensure that the rights of all candidates are protected equally. Students are continuously afforded the rights guaranteed in the Bill of Rights (ACC Section IX); however, Respondent asserts that when a student makes the conscience decision to seek an office in the central student government, the provisions of ACC II.H take effect and work in collaboration with the student’s rights.

2. Does the Election Board have jurisdiction to hear an election complaint filed against a party who has not been certified as an election candidate but who seeks to obtain write-in votes for office in an MSA election?

Respondent argues that the Election Board has jurisdiction to hear an election complaint filed against a party who has not been certified as an election candidate but seeks to obtain a seat via a write-in election campaign in light of All Campus Constitution sections II.E and V.E, as well as MSA Compiled Code sections V.A.2, V.F.1, V.F.3, and V.H.1. Respondent asserts that the Election Board is empowered by the ACC’s section II.H and through the MSA Compiled Code’s Article V. Section V.A.2 which defines a candidate as “a person seeking office in an election…” Compiled Code V.H.1 provides that the “Election Board shall hear cases involving the alleged violation of any campaign rule, and shall meet to determine whether demerits should be assessed against any candidate(s) or party(ies)”. Since the Appellant was undoubtedly a candidate for election, as he was elected, Respondent concludes that the Election Board must have had jurisdiction to rule in the case of Talley v. Yousuf.

3. Does the action of sending an email to all members of a university graduate student listserv seeking write-in votes for office constitute a violation of MSA Compiled Code § V.G.4.m, and was that rule “fully and clearly formulated, published, and generally made known to everyone concerned” such that it may create liability under MSA Constitution § IX.A.11 as of November, 2009?

The Respondent contends that the action of sending an email to all members of a university graduate student listserv seeking write-in votes for office constitutes a violation of MSA Compiled Code section V.G.4.m. Additionally, he maintains that MSA Compiled Code section V.G.4.m was “fully and clearly formulated, published, and generally made known to everyone concerned.”
The Respondent argues, based on the definition of spam as a “disruptive message … posted on a computer network or sent as email,” that electronic communication can be construed as spam based on the interpretation of the message’s recipient(s). Thus, he proffers that if Appellant’s email message to the Respondent was “disruptive” in the mind of the Respondent, such a message would constitute spam.
Additionally, Respondent claims that the election code was widely available through a number of sources, thus it was widely “published and generally made known to everyone concerned.”



4. Does the action of sending an email to all members of a university graduate student listserv seeking write-in votes for office constitute a single offense under MSA Compiled Code § V.G.4.m or a series of offenses corresponding to the number of email recipients?

Respondent argues that the action of sending an email to all members of a listserv may constitute multiple offenses under MSA Compiled Code section V.G.4.m. However, Respondent argues that the Appellant was only prosecuted for one violation of Complied code section V.G.4.m and thus the question of whether or not the Appellant’s email constituted multiple offenses is moot.

5. Can the sending of email to a list of which the sender is a member constitute “spam” as prohibited by MSA Compiled Code § V.G.4.m.?

Respondent argues that the sending of email to a list of which the sender is a member can constitute “spam” as prohibited by MSA Compiled Code section V.G.4.m. He references his answer to Certified Question 3, where he argues that the definition of spam is subjective and turns on the reaction of the receiving party.






Decision of CSJ


The CSJ, in deliberation, addressed each Certified Question separately following the conclusion of oral arguments. The questions in this opinion are presented in the order in which they were deliberated upon.


4. Does the action of sending an email to all members of a university graduate student listserv seeking write-in votes for office constitute a single offense under MSA Compiled Code § V.G.4.m or a series of offenses corresponding to the number of email recipients?

The Court finds no clear error in the Election Board’s interpretation of whether or not an email message to an email listserv constitutes a single offense or multiple offenses. We conclude that a rational Board could have found that either interpretation was valid. Although we do not unanimously agree with the Board’s interpretation, we cannot hold that such an interpretation is clearly erroneous.

5. Can the sending of email to a list of which the sender is a member constitute “spam” as prohibited by MSA Compiled Code § V.G.4.m.?

The Court unanimously finds that membership in a listserv cannot be a complete bar to finding that a message sent by a member of a listserv, to that listserv, is “spam.”


2. Does the Election Board have jurisdiction to hear an election complaint filed against a party who has not been certified as an election candidate but who seeks to obtain write-in votes for office in an MSA election?

The Court unanimously finds that the Election Board has jurisdiction to enter a decision in the matter of Talley v. Yousuf and continues to have jurisdiction over an election complaint filed against a party who has not been certified as an election candidate but who seeks to obtain write-in votes. This jurisdiction is broad enough to encompass the Board’s power to hear election complaints, assess demerits for violations of campaign rules, and if appropriate, remove a write in candidate from the election entirely, not just from the ballot. This power is unquestionably granted by the All-Campus Constitution under Article II, Section H.
We note, however, that the manner in which the term “candidate” is used in Article V of the Compiled Code is somewhat unclear. The Code initially defines “candidate” broadly to mean any person seeking an office under CC V.A.2, but then uses the word “candidate” in contexts that cannot possibly be meant to apply to write-in candidates, including the requirements that “candidates” attend the candidates meeting and file their candidacy applications with the Election Director. CC V.B.e; CC V.B.d. Obviously, a write in candidate will not file an application or attend a candidates meeting, but the language of the text does not provide for this distinction at certain points. The Court notes, however, that this ambiguity cannot be offered as complete justification for stripping the Election Board of its power to administer the election; while the election code may be somewhat ambiguous, it is clear enough so that a reasonable person would understand what the statute means. Again, in this finding we insist that the Election Board, as a member of the MSA, has full constitutionally authority to regulate elections: a power that is only constrained by acts of the MSA and, more broadly, the All-Campus Constitution itself.


1. Are §§ V.H.5.g and V.G.4.m of the MSA Complied Code unconstitutional in light of MSA Constitution §§ IX.A.15, IX.A.1, or IX.A.2?

The Court finds that section V.G.4.m of the MSA Compiled code is unconstitutional. The statute in question is simply too vague to justify encroachment on the guaranteed right of freedom of speech as it is found in the Bill of Rights of the All-Campus Constitution. The majority is particularly compelled by Appellant’s contention that fundamental rights must be delicately balanced with grants of power that may result in a diminution those rights; V.G.4.m is too vague to put a reasonable person on notice as what sorts of e-mails may constitute a violation. The Court likens its finding to the Supreme Court’s discussion in Connally.
That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law, and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.

Connally v. General Construction Co., 269 U.S. 385, 391 (1926).

In the midst of the proceeding, several members of this court were openly 'guessing' at the actual meaning of the statute; we ultimately differed as to its application. Simply put, without definitions of operational terms (such as spam), or a broader (perhaps even exclusive) list of the types of activities that MSA seeks to prohibit, a statute such as this cannot be enforceable. Stating that one cannot "knowingly spam members of the University Community" is not enough. CC V.G.4.m. It is not safe to assume that individuals will know what constitutes spam and what is merely a wide-reaching campaign communication when the penalty for a violation can rise to removal from the election. Prohibiting inappropriate and irresponsible use of e-mail during elections is within the proper regulatory authority of MSA, but the use of the word spam along with a list of "also prohibited" activities does not accomplish that regulation in a way that is clear and intelligible for candidates. This principle of “void-for-vagueness” is discussed in Grayned.

It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute "abut[s] upon sensitive areas of basic First Amendment freedoms," it "operates to inhibit the exercise of [those] freedoms." Uncertain meanings inevitably lead citizens to "'steer far wider of the unlawful zone'...than if the boundaries of the forbidden areas were clearly marked."

Grayned v. City of Rockford, 408 U.S. 104, 108-109 (1972).


Although the dissent would evaluate the statute under rational review in light of the Code's grant of authority to MSA to regulate elections, the majority feels it is appropriate to apply something a heightened level of scrutiny. Traditionally, courts have used some form of heightened or strict scrutiny when a constitutional challenge is brought regarding “fundamental rights,” like those delineated under the First Amendment. Thus, in this proceeding, the Court employs a standard that balances statutory provisions granting MSA certain powers with the “unchallengeable rights of each individual student…[that] shall be upheld and integrated into all present and future policies and actions taken by the Assembly or any part thereof.” MSA Constitution, Article IX Preamble. Regardless of any authority to regulate elections, the Student Bill of Rights guarantees "The right to express their views on any subject without penalty except where the form of that expression endangers life, property, or the equal rights of others." MSA Constitution, Article IX (A)(1). At no point during the hearing did MSA offer a compelling argument that defendant's conduct endangered the life, property, or equal rights of others. It was conduct in bad taste, but it was also conduct protected from penalty unless and until it endangered the rights of another. Is it this very task of “balancing” that characterizes the Court’s standard of review in this proceeding. Looking to the Supreme Court, the court used a standard similar to that found in Anderson and Grayned.
It must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests; it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights.

Anderson v. Celebrezze, 460 U.S. 780, 784 (1983).
…in assessing the reasonableness of a regulation, we must weigh heavily the fact that communication is involved; the regulation must be narrowly tailored to further the State's legitimate interest. Access to the "streets, sidewalks, parks, and other similar public places . . . for the purpose of exercising [First Amendment rights] cannot constitutionally be denied broadly . . . ." Free expression "must not, in the guise of regulation, be abridged or denied."

Grayned v. City of Rockford, 408 U.S. 104, 117 (1972).

In light of such strong language within the Bill of Rights, and the long history of speech-protections in the Federal Courts, the majority asked whether the statutory provision was narrowly tailored to achieve a compelling government interest. We agree with the dissent that the regulation of elections is compelling, especially due to the Code provisions granting the authority to regulate the elections. However, there is no 'right' to regulate the elections inherent to MSA. Given the lack of clarity within the statute, we hold that it was not narrowly tailored to achieve the regulation of the elections in the least restrictive means possible. Other candidates, as was testified to by Vice President Rorro, refrained from engaging in certain e-mail communications - it is unclear whether any or all of those communications would have violated the statute as it was drafted. The chilling effect of the statute, in the absence of more specific language with respect to what is actually prohibited, is impermissible.
However, the Court strongly insists that the All-Campus Constitution clearly grants the MSA the power to regulate student elections. Thus, this Court advises that the statute in question be revised to quell the substantial presence of vagueness. If the MSA intends to carve away a segment of a candidate’s freedom of speech, it must do so with great precision and clarity.


3. Does the action of sending an email to all members of a university graduate student listserv seeking write-in votes for office constitute a violation of MSA Compiled Code § V.G.4.m, and was that rule “fully and clearly formulated, published, and generally made known to everyone concerned” such that it may create liability under MSA Constitution § IX.A.11 as of November, 2009?

Because of the Court’s decision on Certified Question 1, we decline to consider and rule upon Certified Question 3.

Dissent
Chief Justice HUSTON, with whom Justice AVERILL joins, dissenting.

I concur in the Court’s opinion as to all certified questions except Question 1. As to the judgment of the Court and its opinion that Compiled Code § V.G.4.m is unconstitutional, I respectfully dissent.
Today’s majority confuses two of CSJ’s important, but distinct, duties as the ultimate guardian of the MSA Constitution. In doing so, it abrogates another important responsibility of the Court: to show deference to the Assembly’s exercise of its constitutional power to regulate elections. The Court’s opinion poses a severe risk to the rights of students everywhere not to have their email inboxes flooded come election time.
The first error in the Court’s opinion is its treatment of the vagueness doctrine. CSJ can and will strike down penal statutes which are so vague that they do not sufficiently inform the defendant of when his conduct will violate the law. However, as the United States Supreme Court has held when applying the vagueness doctrine, a statute is only unconstitutionally vague “[w]here there are no standards governing the exercise of the discretion granted by the ordinance” or where the statute “permits and encourages an arbitrary and discriminatory enforcement of the law.” Papachristou v. City of Jacksonville, 405 U.S. 156, 170 (1972). Such cannot be said of CC § V.G.4.m. The statute both describes generally what is prohibited, including “inappropriate” and “irresponsible” use of email, or “spam,” and then provides four specific examples of conduct that will also be prohibited. In addition, “[t]he mere fact that a penal statute is so framed as to require a [fact-finder] . . . to determine a question of reasonableness is not sufficient to make it too vague.” U.S. v. Ragen, 314 U.S. 513, 523 (1942). “The law is full of instances where a man's fate depends on his estimating rightly -- that is, as the [fact-finder] subsequently estimates it -- some matter of degree. If his judgment is wrong, . . . he may incur [punishment].” Nash v. U.S., 229 U.S. 373, 377 (1913).
CC § V.G.4.m essentially required Appellant to estimate, before sending his email, whether the Election Board might consider that email to be an “inappropriate” use of email in violation of the Election Code. The Election Board found that Appellant should have known that sending an unsolicited email seeking write in votes to thousands of students who were not eligible to vote for him anyway was an “irresponsible” use of email that amounted to “spam,” and that result was not erroneous. The fact that several members of both the Election Board and this Court consider Appellant’s behavior to be unacceptable should lead us to the conclusion that Appellant might have predicted, upon reading CC § V.G.4.m, that his email would be deemed a violation of the Compiled Code if challenged. The majority is understandably concerned about this code provision: it is relatively new, it has never been adjudicated before, and it certainly requires a judgment of reasonableness, but those concerns are not enough to justify striking down the statute as unconstitutionally vague.
The Court next rationalizes its judgment by invoking the freedom of speech right guaranteed to students by the Constitution. It is certainly true that the right of freedom of speech is critical in the Constitution, and this Court has and will protect that right by striking down statutes where appropriate. However, this right must be considered alongside Article II, Section H of the MSA Constitution, which specifically grants the Assembly the power to “conduct its own election and referenda among the student body, to provide for the manner of nominating candidates in its elections and to enact campus-wide regulations governing the conduct of its elections, campaigns, and related activity.” That is, the Constitution itself, the very same Constitution which guarantees the freedom of speech, also specifically empowers the Assembly to regulate elections and create election rules. CC § V.G.4.m was passed by the Assembly pursuant to this power.
In many cases, an appropriate and necessary election rule may also result in an incremental infringement of a student’s freedom of speech right. Some restrictions will obviously go too far (MSA may not prohibit students from using a sandwich board on the Diag to advertise campaigns). In order to determine when the infringement of the speech right is too great, and because the Constitution specifically empowers the Assembly to pass such rules, a rational basis review is appropriate. That is, the Court should review an election rule to determine whether the rule is designed to achieve a permissible purpose (protecting students’ from harassment is an appropriate goal, but censoring unfavorable candidates or causes is not), and whether the rule is reasonably likely to accomplish that purpose (it is appropriate to prevent harassment by limiting campaign advertising within dorms and educational buildings, but not by prohibiting all forms of leafleting).
The majority’s insistence on a “heightened” level of review, a standard which in practice amounts to strict scrutiny, is emphatically not appropriate for this case. Under the majority’s standard, an election code provision which touches on the freedom of speech right must be both designed to serve a “compelling interest” and “narrowly tailored” to that end. This standard is borrowed from the U.S. Supreme Court’s “strict scrutiny” analysis where constitutional rights are implicated, but the majority fails to recognize that the U.S. Constitution does not afford Congress the power to regulate speech, specifically electoral speech. In contrast, the MSA constitutional specifically affords this power to MSA. When MSA passes legislation pursuant to its constitutionally granted power to regulate elections, the matter becomes a delicate balance between students’ interest in the integrity of their inboxes and other students’ right to freedom of speech. This is a political choice that should be made by the students’ democratically elected representatives; reviewed by this Court only for significant abuse.
By announcing that future election code provisions implicating student rights will henceforth be subject to strict scrutiny, the majority imperils broad swaths of legislation and effectively prevents MSA from exercising a power given to it by the very Constitution the majority seeks to vindicate. Where MSA creates a regulation that the Constitution specifically empowers it to create, our review should be at its most deferential level. Rational basis review is appropriate.
Applying the rational basis standard here, I would find that the statute is not unconstitutional. MSA had a legitimate interest, based on experience with candidates bombarding members of the university community with unsolicited campaign email, in protecting students from harassment. CC § V.G.4.m was reasonably related to achieving that purpose. In fact, in contrast to the majority, I see only a minor deprivation of Appellant’s rights from this statute but a severe risk to the rights of other students. Appellant remained free to campaign energetically, and perhaps even to email his fellow Rackham students seeking their vote. CC § V.G.4.m only prohibited Appellant from soliciting votes via email from those students who were not eligible to vote for him in the first place. But today’s decision does have severe implications for the rights of ordinary students (indeed, anyone with a @umich email address) to be free from unwanted campaign email. In light of the majority’s holding, there is nothing to stop every single candidate in the upcoming election from emailing tens of thousands of email addresses, every day until the election, advertising their campaigns. In fact, the more candidates begin using such mass emails to advertise their campaigns, the greater the incentive on other candidates to match that volume of emails for their own campaigns. Very soon, we may well see students, faculty, and university staff receive multiple emails per day advertising candidates for MSA elections when those recipients have neither the desire nor the power to vote for the candidate-senders.
Finally, but importantly, whether a statute is unconstitutionally vague and whether it violates the freedom of speech right are entirely distinct inquiries that have nothing to do with each other. It is not the case that a possibly-vague statute becomes unconstitutionally vague because it also implicates freedom of speech rights. The statute either is unconstitutionally vague or it is not. The statute either unconstitutionally infringes the freedom of speech right or it does not. The majority opinion does a disservice to future litigants by confusing both these areas of law and treating them as though they are somehow linked questions. They are not.

For the foregoing reasons, I respectfully dissent.
Chief Justice HUSTON, joined by Justice AVERILL.















































Orders

For these reasons,

IT IS ORDERED that the decision of the Election Board in the matter of Talley v. Yousuf be REVERSED.

IT IS FURTHER ORDERED that the penalty of two demerits assessed to Mr. Yousuf per the Election Board’s holding in Talley v. Yousuf, be expunged.

IT IS FURTHER ORDERED that the MSA and all of its member organizations are permanently enjoined from enforcing provisions found with section V.G.4.m of the Compiled Code as it reads in the March 19, 2009 revision.


Dated this 26th Day of February, 2010.

Justice RINGWOOD, joined by Associate Chief Justice PARTICKA and Justice MELTZER.