                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                         

No. 92-1951

                 AUBURN POLICE UNION, ET AL.,

                   Plaintiffs, Appellants,

                              v.

                    MICHAEL E. CARPENTER,
           ATTORNEY GENERAL OF THE STATE OF MAINE,

                     Defendant, Appellee.

                                         

No. 92-2028

                 AUBURN POLICE UNION, ET AL.,

                    Plaintiffs, Appellees,

                              v.

                      MICHAEL CARPENTER,
           ATTORNEY GENERAL OF THE STATE OF MAINE,

                    Defendant, Appellant.

                                         

        APPEALS FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF MAINE

         [Hon. D. Brock Hornby, U.S. District Judge]
                                                   

                                         

                            Before

                     Cyr, Circuit Judge,
                                       

               Campbell, Senior Circuit Judge,
                                             

                  and Boudin, Circuit Judge.
                                           
                                         

Errol Copilevitz  with whom  John  P.  Jennings, Jr.,  Copilevitz,
                                                                 
Bryant,  Gray &amp; Jennings, P.C., Leland N. Chisholm and Kelly, Remmel &amp;
                                                                  
Zimmerman were on brief for plaintiffs.
     
MacKenzie Canter, III, Leonard J.  Henzke, Jr., Lehrfeld,  Canter,
                                                                 
Henzke &amp; Diskin  and George Gills  on brief  for Maine State  Troopers
                             
Association,  National   Association  of  Police   Officers,  National
Troopers Coalition and Texas State Troopers Association, Amici Curiae.
Stephen L. Wessler,  Deputy Attorney General, with whom Michael E.
                                                                  
Carpenter, Attorney  General, and  Thomas D.  Warren, Deputy  Attorney
                                                
General, were on brief for defendant. 

                                         

                      November 12, 1993
                                         

          CAMPBELL, Senior Circuit Judge.  The State of Maine
                                        

has  enacted  a  law (hereinafter  "the  Act")  prohibiting a

person  from soliciting property from the general public that

tangibly  benefits any  law  enforcement officer,  agency  or

association.1     Violations  of  the  Act  are  declared  to

contravene the Maine Unfair Trade Practices Act, and they may

be enjoined and penalized civilly.   Me. Rev. Stat. Ann. tit.

5,   209 (West 1992).

          Plaintiffs comprise a  coalition of police  unions,

individual   law   enforcement   officers,   a   professional

fundraiser and a  private citizen.2  They sued  in the United

States District  Court for the District of  Maine pursuant to

                    

1.  Entitled  the "Solicitation  by Law  Enforcement Officers
Act," the statute provides that:
     A  person may not solicit property from the general
     public  when the  property  or  any  part  of  that
     property in any way tangibly benefits, is  intended
     to tangibly benefit or is represented to be for the
     tangible  benefit of  any law  enforcement officer,
     law   enforcement   agency   or   law   enforcement
     association.
Me. Rev. Stat. Ann. tit. 25,   3702-A (1992).

2.  Plaintiffs include the Auburn Police Union, the  Portland
Police Benevolent Association, and  the Lewiston Police Union
     all  of  which  come within  the  definition  of a  "law
enforcement  association" as defined  in Me. Rev.  Stat. Ann.
tit.  25,    3701(2); Leonard  Dexter,  Kevin MacDonald,  and
David  B. Chamberlain     all  of  whom are  officers of  law
enforcement  associations;   R.H.  McKnight   Co.,  Inc.,   a
corporation  in the business of fundraising and promotions on
behalf   of   law   enforcement   officers,   agencies,   and
associations through sale  of advertising and  publication of
trade   magazines,  programs   and  handbooks;   and  Charles
Underwood,  a  private  citizen who  wishes  to  advertise in
police  publications   and   to  receive   copies  of   those
publications.

                             -3-

42 U.S.C.    1983, seeking to enjoin  the Act and to  have it

declared unconstitutional  under  the  First  and  Fourteenth

Amendments to the United States Constitution.  

          While declaring  that the provision  for injunctive

enforcement was  an  unconstitutional  prior  restraint,  the

district court otherwise upheld  the Act against  plaintiffs'

overbreadth  and equal protection challenges.  Both the State

of  Maine and  plaintiffs  appeal.   We  vacate the  district

court's determination  that the  injunctive relief  provision

amounts to an  impermissible prior restraint, and  affirm the

district court's  upholding of the  constitutionality of  the

Act.

                              I.

          As the Act was originally enacted in 1977, its sole

exception was  for  solicitations  by or  on  behalf  of  law

enforcement  officers  campaigning  for  election  to  public

office     an exception still in  existence.   Me. Rev. Stat.

Ann. tit. 25,   3703.  In 1983, the Act was  amended to allow

game wardens to sell historical publications describing state

parks.3  Me. Rev. Stat. Ann. tit. 25,   3702.

                    

3.  After  the  1983  amendment,  section  3702 provided  the
following:
          No  person  may   solicit  property  from  the
     general  public when the  property, or any  part of
     it, in any way benefits, is intended to  benefit or
     is represented  to be  for the benefit  of any  law
     enforcement officer, law enforcement  agency or law
     enforcement  association,  except  that  any  state
     warden service  association may offer for  sale, by

                             -4-

          In 1983, Maine's Attorney General brought an action

under the  Unfair Trade  Practices Act,  Me. Rev.  Stat. Ann.

tit. 5,     205-A  to 214, against  the Maine  State Troopers

Association ("M.S.T.A.")    a law enforcement association  as

defined  in Me.  Rev. Stat.  Ann. tit.  25,    3701(2)     to

enjoin  the   M.S.T.A.  from  engaging  in  solicitations  in

violation of    3702.  The Attorney General  alleged that the

M.S.T.A. had sold and offered to sell advertisements to Maine

businesses  for insertion in  its magazine, "The  Maine State

Trooper."        The    M.S.T.A.   challenged    the    Act's

                    

     persons  other  than  wardens  or  members  of  the
     association, to  members of the  public guide books
     or  handbooks  containing   historical  reviews  or
     descriptions  of  services,  except  that  on   the
     request of a nonmember the  association may provide
     that person with  the copies requested for  sale by
     that  person.   No advertisements  may  be sold  or
     included in these publications, except greetings or
     complimentary  statements  from members  or  former
     members  which  shall  give the  full  name  of the
     member  or former member.   A stated  rate for this
     advertisement space shall be published and no funds
     in excess  of that stated  rate may be  accepted by
     the association for space.
          A record of  receipts and sales for  space and
     sales  of   the  publication  shall   be  kept  and
     available  to  the  public  during  normal  working
     hours.
          All  proceeds   from  these  sales   shall  be
     expended for direct  charitable services to members
     or  their  spouses, widows,  children,  widowers or
     parents  and may  not  be  used  for  buildings  or
     equipment,   construction    or   maintenance    or
     entertainment of members.
          Any violation of this chapter shall constitute
     a  violation of  Title 5,  chapter  10, the  unfair
     trade practices laws.
Me. Rev. Stat. tit. 25,   3702.

                             -5-

constitutionality, and  the case  went to  the Maine  Supreme

Judicial Court  (the "Law Court"),  which in 1985  upheld the

Act  as constitutional.   See State  v. Maine  State Troopers
                                                             

Ass'n ("MSTA"),  491 A.2d  538 (Me.),  appeal dismissed,  474
                                                       

U.S. 802 (1985).

          The Law  Court found  that Maine  had a  compelling

interest  in avoiding police  coercion.  It  found irrelevant

the subjective intent of the solicitor and the absence of any

complaint of  coercion:   ". . . at least  the appearance  of

coercion  inheres  in  every solicitation  on  behalf  of law

enforcement," undermining "the integrity of the office."  Id.
                                                             

at  542-43.   The  Law  Court noted  the  Maine Legislature's

finding that "[s]olicitation  by a law enforcement  agency is

inherently coercive."  Id.   In the court's view, the State's
                          

interest "in protecting the reputation of its law enforcement

bodies is undeniably substantial.   Indeed, we would be  hard

pressed to suggest  a weightier interest."  Id.   Holding the
                                               

statute   not  to  be  "fatally  overbroad,"  the  Law  Court

emphasized that "the integrity of the State's law enforcement

agents  is cast  in doubt  with every  solicitation on  their

behalf."  Id.  Thus the court found the Act constitutional.  
             

          The Law Court, however,  affirmed the lower court's

decision  that under  the  Equal  Protection  Clause  of  the

Fourteenth  Amendment, the State could not impose any greater

restrictions  on the  solicitation  activities of  other  law

                             -6-

enforcement officers  than were  imposed upon  state wardens.

Id. at 544.4   The Maine State  Troopers Association appealed
   

from the  Law Court's  decision to the  Supreme Court  of the

United  States, which summarily dismissed the appeal for want

of a substantial federal question. Maine State Troopers Ass'n
                                                             

v. Maine, 474 U.S. 802 (1985).
        

          In  1989,  following  the Supreme  Court's  summary

dismissal  of the  appeal  in  MSTA,  the  Maine  Legislature
                                   

amended  the  Act so  as  to  permit  the Department  of  the

Attorney General to charge for the cost of consumer education

materials.  Me. Rev. Stat. tit. 25,    3706.  The Legislature

additionally  amended the Act  to permit solicitations  for a

period of one year, later  extended an additional six months,

to raise  funds for the  construction of a memorial  to slain

police  officers.  Priv. &amp;  Spec. Laws 1989,  Ch. 47; Priv. &amp;

Spec. Laws 1990, Ch. 114.

          In  1990,  the  same  plaintiffs  who  brought  the

present suit challenged  the constitutionality of the  Act in

the federal  district  court.   See  Auburn Police  Union  v.
                                                         

Tierney ("Auburn I"),  756 F. Supp.  610 (D. Me. 1991).   The
                  

district court affirmed the magistrate judge, who ruled in  a

comprehensive  opinion  that   the  Supreme  Court's  summary

                    

4.  The  Law Court affirmed  the lower court's  judgment that
the M.S.T.A. should  be permitted to sell  their publications
to  the  general  public, subject  to  the  same restrictions
imposed on  associations of state  wardens by Me.  Rev. Stat.
Ann. tit. 25,   3702.

                             -7-

dismissal of  MSTA was  not a binding  precedent because  the
                  

Legislature's   enactment  of   the   above  exceptions   had

undermined  MSTA's  premise  that  all  solicitation  by  law
                

enforcement   officers   and  organizations   is   inherently

coercive.   Id.  at 616.5   The court  held that the  Act was
               

unconstitutionally overbroad  and invalid on its face because

"[a]  complete  prohibition  on police  solicitation  is  not

narrowly  tailored to  Maine's  evident  interest in  banning

some,  but not  all, such solicitation."   Id.  at 618.   The
                                              

court  further  concluded  that the  Act  violated  the Equal

Protection  Clause of  the  Fourteenth Amendment  because the

State  could  not  demonstrate   a  substantial  governmental

interest  in permitting police solicitation for a memorial to

slain  officers, while  prohibiting  police solicitation  for

other  causes.   Id. at  619.   Finally,  the district  court
                    

determined that the  Act constituted  an impermissible  prior

restraint because  it "silences by fiat an entire category of

charitable solicitation."   Id. at  618.  The State  of Maine
                               

did not appeal in that case.

          Instead, in  1991, the  Maine Legislature  repealed

the exemptions, except for the exemption for solicitations by

                    

5.  The magistrate judge rejected arguments that MSTA and the
                                                     
case before  him turned  on "very  different" facts  and that
post-MSTA developments undermined MSTA's precedential value.
                                      

                             -8-

or on behalf  of law enforcement officers running  for public

office.6  The  Legislature then reenacted the  prohibition on

solicitations with  one  material change     the  Legislature

added the word "tangibly" prior to the word "benefits" in the

new      3702-A  so  as   to  "clarif[y]  that  the   ban  on

solicitations applies only when  the solicitations provide  a

tangible benefit to law enforcement."   Sen. Amend. B to L.D.

1682 (115th Legis. 1991).

          In  October  1991, the  Department of  the Attorney

General  proposed rules under the Unfair Trade Practices Act,

Me.  Rev.  Stat.  Ann.  tit.  5,    207,  defining  the  word

"tangibly"  as used in    3702-A.7   Me. Dep't of  Att'y Gen.

26-239  (1991).   These rules  provide  that "a  solicitation

which is  completely unrelated  to law  enforcement officers,

although  it increases good will toward law enforcement, does

not  confer  a tangible  benefit," whereas  "[a] solicitation

                    

6.  In  addition to  repealing  the  exception  allowing  the
Department of the Attorney General  to charge for the cost of
consumer education materials, Me. Rev. Stat.  Ann. tit. 25,  
3706, the Legislature repealed the exception permitting State
Warden  Service  associations  to sell  guide  books  but not
advertisements, Me. Rev.  Stat. Ann. tit. 25,    3702, and an
exception  permitting non-law  enforcement  officers to  sell
advertising  in publications  of  the  Department  of  Inland
Fisheries and Wildlife, Me. Rev.  Stat. Ann. tit. 25,   3705.
The  Private and  Special  Laws  permitting solicitations  to
raise  funds for  the  construction of  a  memorial to  slain
police officers  expired by their  own terms.  Priv.  &amp; Spec.
Laws 1989, Ch. 47; Priv. &amp; Spec. Laws 1990, Ch. 114.

7.  The Attorney General has  rulemaking authority under  the
Unfair Trade Practices  Act.  Me. Rev.  Stat. Ann. tit.  5,  
207-2.

                             -9-

which  funds a law enforcement program, which otherwise would

have to  be funded  through law  enforcement's own  budgeting

processes, does confer a tangible benefit."  Id.8
                                                

                    

8.  The   "Rules  Concerning   Unfair  Trade   Practices  and
Charitable Solicitations by Law Enforcement Officers" provide
the following:

     109.1    SOLICITATIONS  THAT  TANGIBLY BENEFIT  LAW
     ENFORCEMENT

          A   solicitation  tangibly   benefits  a   law
     enforcement agency, officer, or association if  the
     proceeds of that solicitation are used, represented
     to be used, or intended to be used to support a law
     enforcement  program   or  purpose   which  a   law
     enforcement agency  or association  otherwise would
     have  to fund through  its own budgeting mechanism.
     Examples  of solicitations  which tangibly  benefit
     law enforcement are as follows:  (1) A solicitation
     which raises  money from  community members  to pay
     for  the purchase of  equipment for a  local police
     department; (2) A  solicitation to send an  officer
     into school classrooms  to conduct anti-drug  abuse
     training (the money paying for the officer's salary
     and   for  education   materials);   and  (3)   The
     solicitation of funds for erection of a monument to
     memorialize slain officers, which was permitted  by
     prior law, Priv. &amp; Spec. Laws 1989, ch. 47.

     109.2  SOLICITATIONS THAT  DO NOT TANGIBLY  BENEFIT
     LAW ENFORCEMENT

          A   solicitation   of   money   for   purposes
     completely  unrelated to  law enforcement,  such as
     for  a charity  unrelated to law  enforcement, does
     not confer a  tangible benefit  on law  enforcement
     even if the solicitation effort increases good will
     toward law  enforcement.   For  example, if  police
     officers  engage  in  solicitations  of  money  for
     earthquake  victims in South America, and if no law
     enforcement   agency,   officer,   or   association
     receives, is intended to receive, or is represented
     to receive any of the proceeds of the solicitation,
     then that  solicitation program  will not  tangibly
                                              
     benefit law enforcement.

                             -10-

          Plaintiffs  brought the  present suit  on September

27, 1991,  seeking a  declaratory judgment  that    3702-A is

both  facially   unconstitutional  and   unconstitutional  as

applied.    Preliminary  and  permanent  injunctions  against

enforcement of    3702-A were requested.   Several plaintiffs

alleged  that they  wanted to  solicit  advertising from  the

business  community  and  to place  those  advertisements  in

police magazines like the "Maine State Trooper," and that the

Act  prohibited this  conduct.   According  to plaintiffs,   

3702-A  violates the First  and Fourteenth Amendments because

it   is   unconstitutionally   overbroad,   serves   as    an

impermissible prior restraint on their freedom of speech, and

denies to them the equal protection of the laws.

          The  district court  held  that  the provision  for

enforcement of the  Act through injunctive relief  created an

impermissible  prior  restraint.   Otherwise,  it  upheld the

constitutionality of    3702-A.   See Auburn Police  Union v.
                                                          

Carpenter  ("Auburn  II"), 798  F. Supp.  819 (D.  Me. 1992).
         

Plaintiffs appeal, arguing that the Act is unconstitutionally

overinclusive and underinclusive.   Maine argues in  response

that the United  States Supreme Court's summary  dismissal of

the  appeal in  MSTA must  be  accorded binding  precedential
                    

effect on the  issues of overbreadth and  underinclusiveness.

Even  if the  Supreme  Court's  summary  dismissal  does  not

                    

Me. Dep't of Att'y Gen. ch. 109.

                             -11-

control, Maine  argues  that the  Act  must still  be  upheld

because  it  is  narrowly  tailored  to  serve  a  compelling

interest.    Maine  also appeals  from  the  district court's

declaration that the  injunctive relief provision constitutes

an impermissible prior restraint. 

                             II.

          This appeal presents difficult  questions.  We must

decide,  first, what  issues are  foreclosed  by the  Supreme

Court's  dismissal  for want  of  a federal  question  of the

appeal  in MSTA.   And,  if any  of the First  and Fourteenth
               

Amendment issues raised  by appellants are not  foreclosed by

MSTA, we must decide them.
    

          In  the enabling  Act, the  Maine  Legislature said

that the Act: 

          clarifies and reaffirms  that the primary
          and  compelling  purpose  underlying  the
          laws   governing   solicitation   by  law
          enforcement officers is  to eliminate the
          coercion    that    is     inherent    in
          solicitations  by and  on  behalf of  law
          enforcement officers by  prohibiting such
          solicitations.   When  a law  enforcement
          officer  solicits   from  a   prospective
          donor,  the  donor may  not  feel totally
          free to  reject the  request in light  of
          the officer's position . . . .

Priv. &amp;  Spec. Laws 1991,  Ch. 510   5.   We set  forth in an

appendix the full text of this section of the enabling Act.

          In challenging  the Act, appellants contend it goes

far beyond what is constitutionally permissible and necessary

to   address  whatever   valid  concerns   exist  about   the

                             -12-

coerciveness of police solicitations.  Appellants insist that

such dangers,  if any, must  be regulated more  narrowly, for

example, by legislation prohibiting  solicitation by officers

in uniform,  or requiring that  solicitation be done  only by

persons who are not themselves police officers.   The present

total  ban on solicitation by  any "person" when the property

or any  part of it "in any way tangibly benefits, is intended

to tangibly benefit or is  represented to be for the tangible

benefit  of  any  law  enforcement  officer  . . . agency  or

. . . association," is  said to be  unconstitutionally broad,

foreclosing  innocent  actions  and  speech  that  could  not

possibly cause any of the evils the Maine Legislature  fears.

For   example,  the  Act  would  bar  placing  an  unattended

collection box for  a police charity in a  public place, even

though doing this could not, appellants say, exert a coercive

influence.   Appellants say that  the Act does not  adopt, as

the  First Amendment requires, the least restrictive means to

address  the evil  of police  coercion;  that it  is a  prior

restraint, not  only  because  of  the  conferred  injunctive

powers but because of its overall scheme; and that it offends

other constitutional principles.

          These  issues are not easy given the protection our

Constitution  affords speech  and speech-related  activities.

Nonetheless, we conclude that the Maine  Legislature's effort

to deal with the dangers of police solicitation is within its

                             -13-

constitutional authority.   We hold that the  Supreme Court's

dismissal of  the MSTA appeal  is binding on  the overbreadth
                      

issue, and that  appellants' remaining constitutional  claims

are insufficient.

          A. Standard of Review
                               

          This  case was  submitted  below  on  a  stipulated

record and upon cross-motions for summary judgment.   In such

a  case, we  review the  district  court's determinations  de
                                                             

novo.  Brewer v. Madigan, 945 F.2d 449, 452 (1st  Cir. 1991);
                        

New England  Legal Found.  v. Massachusetts  Port Auth.,  883
                                                       

F.2d 157, 167 (1st Cir. 1989).

          The  standard   for  reviewing   appellants'  First

Amendment  claims depends upon  whether the Act's  effects on

speech are  content-based.    Content-based  regulations  are

subject to strict judicial  scrutiny; they are "presumptively

invalid."  R.A.V. v. St. Paul,  112 S. Ct. 2538, 2542 (1992);
                             

Simon &amp;  Schuster, Inc.  v. Members of  New York  State Crime
                                                             

Victims Bd., 112  S. Ct. 501,  508 (1991) ("the  Government's
           

ability  to impose content-based burdens on speech raises the

specter  that the  Government may  effectively  drive certain

ideas or viewpoints from the marketplace.  [citation omitted]

The  First  Amendment  presumptively   places  this  sort  of

discrimination beyond the power of the Government.").

          The district court regarded  the Act's restrictions

as content-based, being limited to solicitations of  property

                             -14-

that tangibly  benefits law enforcement officers  and groups,

and  not extending  to  other sorts  of  solicitations.   See
                                                             

Burson v. Freeman, 112 S. Ct. 1846, 1850-51 (1992) (plurality
                 

opinion)  (statute  prohibiting  solicitation of  votes,  but

allowing  other forms of solicitation within one hundred feet

of poll is content-based); cf. Heffron v. International Soc'y
                                                             

for  Krishna Consciousness, Inc., 452 U.S. 640, 648-49 (1981)
                                

(rule that no  person or organization, whether  commercial or

charitable,  may  solicit  except  from  a  rented  booth  is

content-neutral  restriction as  it "applies  evenhandedly to

all who wish  to distribute and sell written  materials or to

solicit funds").         Maine   denies  that   the  Act   is

content-based, arguing that    3702-A prohibits only  the act
                                                             

of  soliciting  for  something  that  tangibly  benefits  law

enforcement.   According  to the  State, the  content  of the

solicitation    i.e., whether the  message is that funds  are

needed for more equipment, to advocate strengthening the drug

laws, or to promote capital punishment  legislation    is not

relevant to   3702-A's ban on solicitation.

          But while the Act may not regulate the details of a

given solicitation, the fact remains that it applies to,  and

prohibits, only certain  types of solicitation, necessitating

an  examination of the content of  each solicitation in order

to determine whether  the Act's criteria are implicated.  The

Supreme Court has  pointed to "the reality  that solicitation

                             -15-

is  characteristically   intertwined  with   informative  and

perhaps persuasive  speech  seeking  support  for  particular

causes or  for particular  views on  economic, political,  or

social  issues, and for the reality that without solicitation

the  flow of  such  information  and  advocacy  would  likely

cease."   Shaumburg v.  Citizens for  Better Env't, 444  U.S.
                                                  

620, 632  (1979).  Like the court below, we conclude that the

Act falls on the side  of content-based regulation.  As such,

it  is  subject  to  "exacting  First  Amendment  scrutiny."9

Riley v. National Fed'n of the Blind, Inc., 487 U.S. 781, 788
                                          

(1988).

          B. Overbreadth     Binding  Precedential Effect  of
                                                             

MSTA
    

                    

9.  Perhaps it might be argued    although Maine has not done
so     that the  Act is content-neutral  because it  seeks to
prevent only the harmful "secondary effects" of solicitation,
i.e., the implied coercion inherent in solicitation on behalf
of  law enforcement  personnel, with  the  resulting loss  of
integrity.   Restrictions based on the content of speech that
seek to regulate  only the "secondary effects"  of the speech
have,  in  certain  situations,  been deemed  content-neutral
because they "serve purposes unrelated to the content  of the
expression."  Ward v. Rock  Against Racism, 491 U.S. 781, 791
                                          
(1989);  see Renton v. Playtime  Theatres, Inc., 475 U.S. 41,
                                               
47 (1986), reh'g denied,  475 U.S. 1132 (1986).  But  even if
                       
this argument had not been  waived, it is doubtful that these
cases,  involving  very   dissimilar  facts  and   regulatory
schemes, would  apply here.  Cf.  R.A.V., 112 S.  Ct. at 2549
                                        
(listeners' reactions to speech are not "secondary effects").
In  any event,  we need  not enter  into the  thicket of  the
"secondary effects" doctrine, as we conclude, infra, that, to
                                                   
the  extent not  controlled by  the  Supreme Court's  summary
dismissal of the  MSTA appeal, the Act survives the stringent
                      
scrutiny applicable to content-based regulation.

                             -16-

          We  move  to  Maine's  argument  that  the  summary

dismissal  of the appeal in MSTA by  the Supreme Court of the
                                

United States is  entitled to binding precedential  effect on

the issues of overbreadth and underinclusiveness.10  

          The  Supreme  Court's  summary  disposition  of  an

appeal to  it is an  adjudication on the merits  that must be

followed  by lower courts,  subject, of course,  to any later

developments  that alter  or erode  its authority.   Hicks v.
                                                          

Miranda, 422 U.S. 332, 343-45 (1975).  We need, therefore, to
       

determine  the "reach  and content"  of  the Supreme  Court's

dismissal of  the appeal  in MSTA for  want of  a substantial
                                 

federal question.  See id. at 345 n.14.11
                          

                    

10.  We find no  merit in plaintiffs' contention  that Auburn
                                                             
I, 756 F.  Supp. 610, is  stare decisis.   This court is  not
 
bound by a district court opinion that was never appealed to,
or affirmed in, this court.   See 1B Moore's Federal Practice
                                 
0.402[2], p.I-23 (1993) ("the doctrine of stare decisis makes
a decision on  a point of law in one case a binding precedent
in  future cases  in the same  court, and such  courts as owe
                                                             
obedience to the decision.") (emphasis added).
                         

11.  Both  courts and commentators  have noted the difficulty
of ascertaining the proper  reach of a Supreme  Court summary
disposition.      See   Hicks,   422   U.S.   at   345   n.14
                             
("[a]scertaining the reach and content of summary actions may
itself  present  issues   of  real  substance");   Fusari  v.
                                                         
Steinberg,   419   U.S.  379,   391  (1975)   (Burger,  C.J.,
         
concurring) ("Another common  response to summary affirmances
. . . is confusion as to what they actually do mean."), reh'g
                                                             
denied, 470 U.S.  955 (1975); Preston v. Seay,  684 F.2d 172,
                                             
173  (1st Cir.  1982) ("It  is of  course often  difficult to
understand  the   proper  reach  of  Supreme   Court  summary
affirmances  and dismissals for want of a substantial federal
question");  Note,   "The  Precedential  Effect   of  Summary
Affirmances  and Dismissals for Want of a Substantial Federal
Question  by the  Supreme Court  After Hicks  v. Miranda  and
                                                        
Mandel v.  Bradley," 64 Va.  L. Rev. 117, 130  (1978) (noting
                  

                             -17-

          In  Mandel v.  Bradley, 432  U.S.  173 (1977),  the
                                

Supreme   Court  said   that,   "[s]ummary  affirmances   and

dismissals for want of a substantial federal question without

doubt  reject  the  specific  challenges  presented  in   the

statement  of  jurisdiction  and  do  leave  undisturbed  the

judgment appealed from.   They do  prevent lower courts  from

coming  to   opposite  conclusions  on  the   precise  issues

presented and  necessarily decided by those actions."  Id. at
                                                          

176; see Illinois State Bd. of Elections v. Socialist Workers
                                                             

Party, 440  U.S. 173,  183 (1979)  ("Questions which  'merely
     

lurk in the  record,' are not resolved, and  no resolution of

them may be  inferred.") (quoting Webster  v. Fall, 266  U.S.
                                                  

507,  511 (1925)).   The Supreme Court's  summary disposition

will   not  control   later  lower   court  cases   involving

significantly dissimilar facts.   See Mandel, 432 U.S. at 177
                                            

(vacating lower court  decision that  summary affirmance  was

binding  because  facts  in  summary  affirmance  were  "very

different" from those before lower court).  The Supreme Court

further  cautioned that  summary dispositions "should  not be

understood  as breaking new ground but as applying principles

established  by  prior  decisions  to  the  particular  facts

involved."  Id. at 176.  
               

                    

"the  difficulty inherent  in  any  attempt  to  interpret  a
disposition without an opinion").

                             -18-

          In  ascertaining the  "reach  and  content" of  the

Court's summary  dismissal in  MSTA, we  may not  rely solely
                                   

upon the reasoning of the  Maine Law Court.  Id. ("Because  a
                                                

summary affirmance is an affirmance of the judgment only, the

rationale of  the affirmance may  not be gleaned  solely from

the opinion below."); accord Anderson v. Celebrezze, 460 U.S.
                                                   

780, 785  n.5  (1983); Fusari,  419 U.S.  at 391-92  (Burger,
                             

C.J.,   concurring).     Instead,  we   should  examine   the

jurisdictional  statement filed in  the Supreme Court  of the

United States and  any other relevant aid to  construction in

order   to  ascertain   what   issues  were   "presented  and

necessarily decided" by the Court's summary dismissal.12 

          Examining   the   MSTA   jurisdictional  statement,
                                

together  with the accompanying papers filed with the Supreme

Court and the opinions of  the lower courts, we conclude that

appellants in MSTA specifically presented the issue of facial
                  

overbreadth,  including  whether  the  Act  was broader  than

justified  by the underlying  state interest, to  the Supreme

Court.  We think the Court was obliged to have considered and

                    

12.  Besides contesting whether the current case presents the
same  issues that were  involved in MSTA,  plaintiffs contend
                                        
that  the  facts  in  the  instant case  and  MSTA  are  very
                                                  
different; that MSTA deviated from established constitutional
                    
principles  and   broke  new  ground;   and  that   doctrinal
developments have  undercut the  precedential value  of MSTA.
                                                            
Like  the district  court in  Auburn I,  we find  these three
                                      
contentions lack merit.   756 F.  Supp. at 614.   Unlike  the
court in  Auburn I,  however, we also  conclude that  MSTA is
                                                          
entitled  to binding  precedential  value  on  the  issue  of
substantial overbreadth.

                             -19-

to have rejected this issue  as a predicate to its dismissing

of the  appeal for  want of  a substantial  federal question.

The issue of so-called underinclusiveness, however,  does not

so clearly appear in the papers, and later changes in the Act

further  erode the  present  bearing of  MSTA on  that topic.
                                             

Therefore, the  dismissal in  MSTA is binding  upon us  as to
                                  

overbreadth, but is not binding as to underinclusiveness, nor

binding as to certain "as applied" issues the plaintiffs have

raised.  We turn first to overbreadth.

          In  the strict sense, overbreadth is a doctrine for

facially invalidating  a statute  that is  "so broad  that it

'may inhibit the  constitutionally protected speech  of third

parties.'"  N.Y. State Club Ass'n v. New York, 487 U.S. 1, 11
                                             

(1988) (quoting  Members of City  Council of  Los Angeles  v.
                                                         

Taxpayers for Vincent,  466 U.S. 789,  798 (1984)); Regan  v.
                                                         

Time, Inc.,  468 U.S. 641, 651 n.7 (1984).   There must be "a
          

realistic  danger that the  statute itself will significantly

compromise recognized First Amendment  protections of parties

not before the  Court."  Id. (quoting Taxpayers  for Vincent,
                                                            

466 U.S. at  801).  The  overbreadth "must not only  be real,

but substantial as well, judged in relation to the  statute's

plainly legitimate sweep."  New York v. Ferber, 458 U.S. 747,
                                              

770 (1982). 

          Plaintiffs  argue that the Act is overbroad in this

classic sense.   For example,  without themselves necessarily

                             -20-

wishing  to engage in such conduct, they note that solicitors

may wish  to put out  unattended collection boxes  to receive

police  donations.   This, they  say,  would be  noncoercive,

since  no one would know  who donated or  did not donate, yet

the  Act would prohibit it.   Similarly, plaintiffs point out

that  hypothetical  private  citizens,  unconnected with  the

police, are prevented by the Act from soliciting donations to

law   enforcement  from   friends       for  instance,   from

voluntarily soliciting funds to buy a new cruiser for a local

department.   This, too, is said to be  an example of how the

Act  sweeps too  broadly,  prohibiting protected  conduct  by

third parties.13  

          Classic  overbreadth,  however,   was  an  argument

specifically  presented  to  the Supreme  Court  in  the MSTA
                                                             

appeal  and necessarily  rejected by  its  dismissal of  that

appeal for want of a substantial federal question.

                    

13.  One can  also hypothesize, for  purposes of  overbreadth
analysis, other arguably unconstitutional applications of the
Act.   For  example, the  Act might  be construed  to prevent
private citizens  from asking for  money to lobby for  a bill
that  raises police  salaries.   However,  because the  Act's
prohibition runs only against fundraising for  the "tangible"
benefit  of  law  enforcement, the  Maine  courts  might well
reject  any such  interpretation.  Speculative readings  like
this would seem best decided,  if ever sought to be enforced,
in an  "as-applied"  lawsuit,  rather  than  hypothesized  in
advance  for purposes of facial overbreadth analysis.  In any
case, as  discussed infra,  we consider  the issue of  facial
                         
overbreadth to be  foreclosed by the Supreme  Court's summary
dismissal of the MSTA appeal.  
                     

                             -21-

          When so  dismissing, the  Supreme Court  had before

it,  both in M.S.T.A.'s  jurisdictional statement and  in its

notice  of appeal, appellants'  explicit contention  that the

Act  was overbroad.   And,  as noted  supra, the  Law Court's
                                           

underlying  opinion from  which appeal  was  being taken  had

specifically discussed and rejected  overbreadth as a  ground

for invalidating the Act.

          It is true  that in first describing  the questions

presented on appeal,  M.S.T.A.'s jurisdictional statement    

after  setting  out the  terms  of  the  Act     defined  the

question only as  whether or not the Act  "violates the First

and Fourteenth Amendments to the United States Constitution."

Later,  however, under  the heading  of  "Stated Reasons  for

Plenary  Consideration," the  jurisdictional statement  urged

upon the Court the desirability of its being able to question

counsel as  to  "the overbreadth  doctrine."   In a  footnote

appended to that suggestion, M.S.T.A. stated,

          "From the outset,  appellant has asserted
          the  overbreadth  doctrine  of  NAACP  v.
                                               
          Button, 371 U.S. 415 (1963)."  
                

In NAACP, the Court had stated, among other comments relevant
        

to  overbreadth,  "Furthermore,  the instant  decree  may  be

invalid  if  it  prohibits   privileged  exercises  of  First

Amendment rights whether or not the record disclosed that the

petitioner has engaged in privileged conduct."  Id. at 432.  
                                                   

                             -22-

          That overbreadth was specifically presented to, and

rejected by, the  Supreme Court is underscored  by M.S.T.A.'s

statement in its  notice of appeal to the  Supreme Court that

appeal was taken from the portion of the Law Court's decision

that "the  statute in question  is not overbroad."   We find,

therefore, that in denying the MSTA appeal, the Supreme Court
                                   

was  expressly  presented  with,   and  must  therefore  have

rejected,  the argument  that  the  Act was  unconstitutional

under the First Amendment because of overbreadth.  

          We  think  the  Court's  rejection  of  overbreadth

subsumed, besides the "classic" overbreadth described  above,

another common variety of facial overbreadth claim.  The term

"overbreadth" is used in First Amendment contexts not only to

invalidate  statutes that  are  so broad  as  to inhibit  the

constitutionally protected  speech of  third parties,  supra,
                                                            

but  to facially invalidate statutes that inhibit free speech

and  are  unsupported  by  a  sufficiently  compelling  state

interest or are  not tailored narrowly  to such an  interest.

See Secretary of  Maryland v. Joseph H. Munson  Co., 467 U.S.
                                                   

947, 965-66 n.13 (1984) ("where  the defect in the statute is

that  the means chosen  to accomplish the  state's objectives

are  too  imprecise, so  that  in  all its  applications  the

statute  creates an unnecessary risk of chilling free speech,

the statute is properly subject to facial attack."); see also
                                                             

                             -23-

N.Y. State Club  Ass'n, 487 U.S. at 11;  Schaumberg, 444 U.S.
                                                   

at 639, Taxpayers for Vincent, 466 U.S. at 797. 
                             

          Any present claim  of facial invalidity based  on a

purported absence of compelling state interest in prohibiting

public   solicitation  for   the  tangible  benefit   of  law

enforcement officers and agencies seems to us to be precluded

by  the Supreme  Court's  dismissal  of M.S.T.A.'s  appeal.14

Similarly, a facial invalidity claim based on an alleged lack

of narrow tailoring  is likewise precluded.   We so  conclude

not  alone from  the Law  Court's own  ruling in  MSTA, which
                                                      

expressly  found both  a compelling  state  interest and  the

requisite  narrow tailoring, but from express language in the

jurisdictional statement submitted by M.S.T.A. when appealing

to the  Supreme Court  from the Law  Court's ruling.  In that

statement, as already  noted, the terms of the challenged Act

were  set  forth  and  an  appeal  on  First  and  Fourteenth

Amendment grounds noted.   M.S.T.A. then went on to  complain

that the  Law Court had held that the Act "in fact interferes

with  First  Amendment freedoms,  but  that compelling  state

interests  exist which  permit the  interference."   M.S.T.A.

characterized  the  Law  Court's version  of  the  compelling

interest as "the  interest of the State  in the image of  its

                    

14.  As later sections of this opinion demonstrate, we do not
regard the  Court's denial of  appeal in MSTA as  barring our
                                             
consideration  of  claims  attacking the  sufficiency  of the
State's  compelling  interest   based  on  underinclusiveness
(equal protection) grounds.

                             -24-

law enforcement officers" and as "an intangible harm" allowed

in  the Law Court  to "deprive law  enforcement associations,

and others, of  protected First Amendment rights."   M.S.T.A.

urged summary  reversal because  the "Law  Court, absent  any

evidence  of actual or perceived coercion, apparently assumed

the  compelling state  interest  into  existence  based  upon

comments  in the legislative  history of the  Act."  M.S.T.A.

urged the  Supreme Court     if unwilling to reverse  the Law

Court summarily    to question counsel as to "the broad sweep

of the State's alleged compelling interest, together with the

appellant's assertion of the 'overbreadth doctrine.'"   These

statements  were prefaced  by mention  of  the trial  court's

finding  that appellants  had  not engaged  "in  any form  of

coercion or otherwise used their official position to solicit

advertising,"  a comment supportive of other remarks that the

Law Court had  rested the State's compelling  interest solely

on  a need  to conserve  the "image"  of its  law enforcement

officers.

          We think  the above statements  necessarily alerted

the Supreme  Court to a  claim of "overbreadth" based  on the

notion that the Act's burdens on speech went beyond any truly

compelling state interest.

          The  challenged  language  of  the present  Act  is

virtually identical in  all material respects to  the statute

found to  be  constitutional in  MSTA.   The  key  difference
                                     

                             -25-

between the current  version of the Act, Me.  Rev. Stat. Ann.

tit. 25,   3702-A, and the prior version of the Act, Me. Rev.

Stat. Ann. tit. 25,    3702, is that the current version  now

provides that  the prohibition on  solicitation applies  only

when  solicitation "tangibly"  benefits  any law  enforcement

officer, agency or  association.  This clarifies  that police

solicitation   for  charitable   causes   unrelated  to   law

enforcement is not barred.   Arguably, under the old  statute

such solicitation was barred because  it intangibly benefited

law  enforcement  by  providing good  will.    Even assuming,

however, that the  addition of the word  "tangible" to modify

"benefits" in the present version worked a substantive change

in  the law,  that change  only narrowed  the breadth  of the

Act's prohibition.   Because    3702-A is even  narrower than

the  former   3702, the  Supreme Court's summary dismissal of

MSTA, in  which the  Supreme Court  necessarily rejected  the
    

overbreadth  and  compelling  interest  challenges  described

above, is binding precedent on whether    3702-A is overbroad

in  the senses  just discussed.   See  Glen Theatre,  Inc. v.
                                                          

Pearson,  802 F.2d  287, 290  (7th  Cir. 1986)  (if issue  of
       

overbreadth is  raised in  jurisdictional statement,  Supreme

Court's summary affirmance binds lower courts on that issue).

          C. Underinclusiveness
                               

                             -26-

          While   the   MSTA    appeal   foreclosed   present
                            

overbreadth claims, appellants  raise other  claims which  in

our view, the appeal has not foreclosed.  We turn to these.

          Facial  First  Amendment  challenge is  allowed  to

statutes  burdening speech that are so grossly underinclusive
                                                    

as  to cast  doubt on  the compelling  nature of  the state's

asserted interest.  See R.A.V.,  112 S. Ct. at 2547 (facially
                              

invalidating ordinance that applied  only to "fighting words"

that provoke violence  "on the basis  of race, color,  creed,

religion  or gender."); Florida Star v. B.J.F., 491 U.S. 524,
                                              

541-42  (1989) (Scalia,  J., concurring)  ("a  law cannot  be

regarded  as protecting an  interest 'of the  highest order,'

and thus justifying a restriction on truthful speech, when it

leaves appreciable  damage to that supposedly  vital interest

unprohibited."); FCC v. League of Women Voters, 468 U.S. 364,
                                              

396 (1984) ("patent . . . underinclusiveness . . . undermines

the likelihood of a genuine [governmental] interest").15  

          As already discussed,  the jurisdictional statement

in  MSTA required the  Supreme Court to  consider whether the
        

                    

15.  A statute's  underinclusiveness also indicates  that the
government  is not, in fact, serving the proffered compelling
interest.     Florida  Star,   491  U.S.   at  540   ("facial
                           
underinclusiveness of  [statute] raises serious  doubts about
whether Florida is, in fact,  serving, with this statute, the
significant  interests  which  [the  State] invokes");  Women
                                                             
Voters, 468 U.S.  at 396 (because statute  is underinclusive,
      
it  "provides  only  ineffective or  remote  support  for the
government's purpose");  Carey v.  Brown, 447  U.S. 455,  465
                                        
(1980)   ("nothing   in  the   content-based   labor-nonlabor
distinction has any bearing whatsoever on privacy").

                             -27-

Maine  Act  was  supported by  a  compelling  state interest.

Plaintiffs in the present case,  however, assert that even if

the version of the Maine Act upheld by the Maine Law Court in

MSTA  was supported  by  a  compelling  state  interest,  the
    

Supreme  Court's summary  dismissal  of  MSTA  is  no  longer
                                             

binding precedent because the  Maine Legislature has  enacted

and has later repealed or  let expire, various exceptions  to

the  Act's  prohibition  on solicitation  that  benefits  law

enforcement.    According  to  plaintiffs, the  Legislature's

former enactment of  these now-defunct exceptions permanently

undermined  the Act's  compelling  interest.16   We disagree.

We know of  no precedent for invalidating a  statute based on

repealed exceptions:   the Maine legislature, having restored

the statute something close to its original form, is entitled

to the same respect afforded to its original judgment.

          While we reject plaintiffs' assertion that repealed

exceptions to the Act prevent  Maine from ever again having a

compelling interest in prohibiting solicitation beneficial to

law enforcement, we  take more seriously  plaintiffs' further

contention  that extant exceptions  to the Act  undermine the
                       

State's assertion of a compelling state interest.  Plaintiffs

identify   three  such  exceptions,  said  to  make  the  Act

unconstitutionally  underinclusive:    (1)  The  Act  permits

                    

16.  As  the  magistrate  judge  wrote  in   his  Recommended
Decision:  "the proverbial egg cannot be unscrambled."  

                             -28-

solicitations  that  intangibly  benefit  the  police,  e.g.,

solicitations  by police officers  for a public  charity; (2)

the  Act permits solicitations  that benefit  state officials

other than law enforcement officers;  and (3) The Act permits

solicitations   on  behalf   of   law  enforcement   officers

campaigning for public office.  While the latter distinctions

were present  in the statute upheld in MSTA, the issue of the
                                           

Act's  alleged  underinclusiveness  and  its  effect  on  the

compelling  state interest supporting the Act were not raised

in either the Maine courts or in the jurisdictional statement

to  the Supreme  Court.17   Because  the issue  of the  Act's

purported underinclusiveness was not presented to the Supreme

Court in MSTA, the Supreme  Court's summary dismissal of that
             

case is  not binding precedent  on this issue.   See Illinois
                                                             

State Bd.  of Elections,  440 U.S.  at 183 ("Questions  which
                       

merely lurk in the record are not resolved, and no resolution

of them may be inferred.") (internal quotation omitted).

          The  State  contends   that  the  Act's   purported

underinclusiveness  does not render it unconstitutional.  The

State relies,  as did  the district court,  on the  Hatch Act

cases,  see,  e.g.,  United  States  Civil  Serv.  Comm'n  v.
                                                         

                    

17.  While  the Maine  Law  Court in  MSTA  did consider  the
                                          
repealed  Act's  exception  for   game  wardens,  finding  no
justification  for   differentiating  in   treatment  between
M.S.T.A.  and  the  game  wardens, the  statutory  exceptions
challenged by  plaintiffs here  either were  not yet  enacted
when the Supreme Court summarily  dismissed MSTA, or were not
                                                
challenged in that case.

                             -29-

National  Ass'n of Letter Carriers, 413 U.S. 548, 556 (1973);
                                  

United Pub. Workers v. Mitchell, 330 U.S. 75, 100 (1947), for
                               

the proposition that a legislature need not address an entire

social  problem at  one time.   In the  Hatch Act  cases, the

Supreme  Court  upheld  restrictions  on  partisan  political

activity  by  civil  servants  even  though  other  types  of

political activity were not similarly restricted.  But, while

helpful to  some degree, the Hatch  Act cases are not  on all

fours.  The  Hatch Act cases  rest upon the  notion that  the

government has special rights to restrict  partisan political

speech of its  employees and on its property.   Women Voters,
                                                            

468 U.S.  at 401  n.27;  see International  Soc. for  Krishna
                                                             

Consciousness, Inc. v. Lee, 112 S. Ct. 2701, 2705 ("Where the
                          

government is acting  as a proprietor, managing  its internal

operations, rather than  acting as a  lawmaker with power  to

regulate or license, its action  will not be subjected to the

heightened review to  which its actions as a  lawmaker may be

subject.").    The Hatch  Act cases  are inapplicable  to the

question   of  whether   a   statute  is   unconstitutionally

underinclusive when that statute, like the Maine Act at issue

here, restricts  the speech of the general  citizenry as well

as that of public employees.

          When a content-based regulation restricts both  the

speech  of public  employees and  the  general citizenry,  it

"simply  cannot  be  defended  on  the  ground  that  partial

                             -30-

prohibitions may effect  partial relief."  Florida  Star, 491
                                                        

U.S. at  540.   The Supreme Court  explained why  a statute's

content-based underinclusiveness is  objectionable when First

Amendment  rights are at stake, in Erznoznik v. Jacksonville,
                                                            

422 U.S. 205 (1975):

          This    Court     frequently    has     upheld
     underinclusive classifications on  the sound theory
     that a  legislature  may deal  with one  part of  a
     problem without  addressing all of  it. See,  e.g.,
                                                       
     Williamson v. Lee  Optical Co., 348 U.S.  483, 488-
                                   
     489   (1955).     This  presumption   of  statutory
     validity,   however,   has   less   force  when   a
     classification  turns  on  the  subject  matter  of
     expression.  "[A]bove all else, the First Amendment
     means  that government  has  no  power to  restrict
     expression because  of its message,  its ideas, its
     subject matter, or  its content."  Police  Dept. of
                                                        
     Chicago v.  Mosley, 408 U.S., at 95.   Thus, "under
                       
     the  Equal  Protection Clause,  not to  mention the
     First Amendment itself," id., at 96, even a traffic
                                 
     regulation  cannot  discriminate  on  the basis  of
     content  unless there  are  clear  reasons for  the
     distinctions.

Id. at 215.
   

          In order to  avoid the conclusion under  either the

Equal Protection  Clause or  the First  Amendment18 that  the

                    

18.  When reviewing  content-based distinctions,  the Supreme
Court has not differentiated the Equal Protection Clause from
the First Amendment.   R.A.V., 112 S. Ct. at  2544 n.4 ("This
                             
Court . .  . has occasionally fused the  First Amendment into
the Equal Protection Clause"); Burson, 112 S.  Ct. at 1850-52
                                     
n.3 ("Under either a free-speech or  equal-protection theory,
a  content-based regulation of  political speech in  a public
forum is  valid only  if it  can survive  strict scrutiny.");
Erznoznik, 422 U.S.  at 215  (holding that  under either  the
         
First Amendment or the Equal Protection Clause, there must be
"clear reasons" for  content-based distinctions); Mosley, 408
                                                        
U.S. 92, 95 (1972) ("Of course, the equal protection claim in
this  case  is  closely  intertwined  with   First  Amendment
interests."); Harwin v. Goleta Water Dist., 953 F.2d 488, 490
                                          

                             -31-

Maine  Act is  unconstitutionally  underinclusive, the  State

must be able  to point to clear reasons  for the distinctions

drawn  by the Act.   See Austin v.  Michigan State Chamber of
                                                             

Commerce,  494  U.S.  652, 666  (1990)  (the  press's "unique
        

societal role" provides a "compelling reason for the state to

exempt  media   corporations  from  the  scope  of  political

expenditure limitations"); Mosley, 408 U.S. at 100 (ordinance
                                 

prohibiting all peaceful picketing other than labor picketing

is  unconstitutional  absent  showing  that   the  former  is

"clearly more disruptive"); see also Cincinnati  v. Discovery
                                                             

Network, Inc., 113 S. Ct. 1505, 1524 (1993) (Rehnquist, C.J.,
             

dissenting) (in  noncommercial speech  cases,  the Court  has

refused  to   accept  distinctions  between   restricted  and

nonrestricted  speech   when  those  distinctions   bear  "no

relationship  to the  interests asserted  for regulating  the

speech in the first place");  Fantasy Book Shop, Inc. v. City
                                                             

of Boston, 652 F.2d 1115, 1121 n.6 (1st Cir. 1981) (rejecting
         

challenge of  facial underinclusiveness  because "legislature

could  reasonably  conclude  that  non-commercial  amusements

present sufficiently less  likelihood of the harms  sought to

                    

n.3 (9th Cir. 1991) ("Under either [equal protection or first
amendment] analysis, .  . . independent justification  of the
discrimination  is required."); News America Pub. v. FCC, 844
                                                        
F.2d 800, 804  (D.C. Cir. 1988) (claim  of underinclusiveness
"lies at the intersection of the First Amendment's protection
of  free speech and the Equal Protection Clause's requirement
that  government   afford  similar  treatment   to  similarly
situated persons").

                             -32-

be  prevented to justify their differential treatment").  The

State's justifications  for the Act's  differential treatment

must be "carefully scrutinized."  Carey, 447 U.S. at  461-62.
                                       

Although  the case at hand is close, we believe the State has

articulated   satisfactory   explanations   for   the   Act's

differential treatment.

          To justify  the "exception" in    3702-A permitting

solicitations that  only intangibly  benefit the  police, the

State  relies  principally upon  the  following  statement of

legislative intent  included in  the 1991  amendments to  the

Act:

          The  Legislature   .  .   .  finds   that
          solicitations [by police]  for charitable
          purposes  unrelated  to  law  enforcement
          activities  are  not  inherently coercive
          because  the person  solicited will  know
          that law enforcement agencies or officers
          do  not  gain any  tangible  benefit and,
          consequently, will not  be concerned with
          who donates.

Priv. &amp;  Spec. Laws 1991, Ch. 510,   5.  We find this to be a

supportable basis for  the distinction.  It is  true that the

State has provided no purported empirical evidence to back up

that  finding.19    The  district  court,  in  upholding  the

                    

19.  Plaintiffs  contend  that  by  simply asserting  without
empirical  evidence  that solicitations  tangibly  benefiting
police are inherently coercive, the State has:

     taken  the effect of  the statute and  posited that
                      
     effect  as the State's interest.  If accepted, this
     sort  of  circular  defense  can sidestep  judicial
     review  of almost any statute, because it makes all
     statutes  look narrowly  tailored. .  .  .   "Every

                             -33-

constitutionality of the  Act, stated that it  would overlook

the lack of empirical evidence  and defer to the "legislative

premise that these types of fundraising are different," since

whether  there is  as  much  coercion  in  solicitations  for

charitable causes as for law enforcement purposes is a matter

"on which reasonable minds may differ."

          We agree that the lack of empirical evidence is not

fatal.  See Burson, 112 S. Ct. at 1856 (noting the difficulty
                  

of "isolat[ing] the exact effect of [laws restricting certain

speech  at polling places] on voter intimidation and election

fraud" and  suggesting that "[s]uccessful  voter intimidation

and  election fraud  is successful  precisely  because it  is

difficult to detect");  Frisby v. Schultz, 487  U.S. 434, 486
                                         

                    

     content-based  discrimination  could be  upheld  by
     simply  observing  that  the  State  is  anxious to
     regulate the designated speech." 

Simon  &amp;  Schuster,  112  S.  Ct. at  510  (quoting  Simon  &amp;
                                                             
Schuster, Inc. v. Fischetti, 916 F.2d 777, 785 (2d Cir. 1990)
                           
(Newman, J., dissenting)).
     Plaintiffs' reliance  on Simon &amp; Schuster  is misplaced.
                                              
In that  case, New  York argued that  its Son-of-Sam  law was
supported by a compelling interest because it "ensur[ed] that
criminals do not profit from story-telling about their crimes
before  their victims  have a  meaningful  opportunity to  be
compensated  for their  injuries."   The  Court rejected  New
York's argument  that  this narrow  interest  was  compelling
because the State  could not explain why it  "should have any
greater interest in compensating victims from the proceeds of
such 'storytelling'  than from  any of  the criminal's  other
assets."  Id.  By contrast,  the State of Maine can and  does
             
explain why solicitations by police  personnel for charitable
purposes unrelated to  law enforcement are not  as inherently
coercive   as  solicitations   that   tangibly  benefit   law
enforcement officers, agencies or associations.

                             -34-

(1988)  (noting   that  targeted  residential   picketing  is

"inherently" intrusive of  residential property).  While  the

Supreme  Court has occasionally  cited the lack  of empirical

evidence as a further ground  for striking down a restriction

on  speech,  see,  e.g.,  Peel  v.  Attorney  Registration  &amp;
                                                             

Disciplinary  Comm'n,  496  U.S. 91,  106  (1990) (plurality)
                    

("Given the complete  absence of any evidence  of deception,"

Court rejects state's contention that attorney's  advertising

was actually misleading),  the Court  has never  laid down  a

categorical  rule requiring that  empirical evidence be shown

to  support every  statutory  restriction  on  speech.20    A

categorical  requirement would be unwise, we think, given the

difficulty  of  securing  definitive empirical  evidence  for

unquantifiable issues of this sort. 

          The    Maine    Legislature's    conclusion   seems

intuitively reasonable that  solicitations    even when  made

by  law  enforcement  personnel      for charitable  purposes

unrelated to law  enforcement are not as  inherently coercive

as  solicitations  that   tangibly  benefit  law  enforcement

officers, agencies  or associations.   Persons approached  to

contribute  funds for the tangible benefit of law enforcement

personnel, agencies  or associations might well  believe that

                    

20.  The Court has, however, required "substantial support in
the  record or findings" when "rights of political expression
and association" are concerned.  E.g., In re Primus, 436 U.S.
                                                   
412, 434 n.8 (1978).

                             -35-

the officers would be more  deeply offended by a refusal than

by  rejection  of officers'  requests  for  a donation  to  a

charity   entirely  unrelated  to   law  enforcement.     The

Legislature  "could  reasonably   conclude  that  [charitable

solicitations] present  sufficiently less  likelihood of  the

harms  sought to be  prevented to justify  their differential

treatment."   See Fantasy Book  Shop, Inc., 652 F.2d  at 1121
                                          

n.6.

          Plaintiffs' contention  with respect  to the  Act's

distinction between law enforcement officials and other types

of  public servants  fares no  better.   The police  occupy a

unique role.   They are empowered to enforce  a wide array of

criminal laws  and to protect  the property and lives  of the

general citizenry.  To do this they are armed, given enhanced

arrest powers, and  given access to information  networks and

other tools denied to most citizens.  Police necessarily have

considerable on-the-spot authority of a discretionary sort   

whether  to give  or withhold  a traffic  ticket, to  make an

arrest, or to  notice or disregard a violation.   While even-

handed  treatment is the  ideal, officers may,  and sometimes

do, enforce  laws in  a less than  neutral manner.   For this

reason, citizens and local businesses will try to stay on the

good side of  police, fearing    whether or  not correctly   

that   a  miffed  police  officer  and  his  associates  will

retaliate, or will turn their backs when most needed.  Hence,

                             -36-

the Maine  Legislature could reasonably conclude  that police

solicitation has a special potential for coercion not present

in solicitation by other officials.  

          Plaintiffs'  third example  of the  Act's purported

underinclusiveness     the  exception  for  solicitations  on

behalf  of law enforcement officers running for public office

    is  also  unavailing.   As  the  district  court properly

recognized, law  enforcement officers  who run  for electoral

office, primarily county  sheriffs, themselves have  separate

First Amendment  interests.  See  Burson, 112 S. Ct.  at 1850
                                        

("'the  First  Amendment  'has its  fullest  and  most urgent

application'  to  speech   uttered  during  a   campaign  for

political office'") (quoting Eu  v. San Francisco  Democratic
                                                             

Comm., 489 U.S. 214, 223 (1989) (quoting Monitor  Patriot Co.
                                                             

v.  Roy, 401  U.S. 265,  272  (1971))).   A rule  prohibiting
       

"campaign  fundraising  by  law enforcement  personnel  would

effectively  disqualify them from  an office such  as sheriff

for,  unless  they  were  independently  wealthy,  they could

easily   be  outspent  by  opponents  who  were  not  in  law

enforcement."    Auburn  II,  798  F.  Supp.  at  827.    We,
                           

therefore,  agree  with  the district  court  that  the First

Amendment  right of  law enforcement  officers  to engage  in

campaign speech provides a substantial  justification for the

Act's  exemption of  such  speech  from  its  prohibition  on

                             -37-

solicitation.21    See   Austin,  494  U.S.  at   668  (media
                               

exemption from  prohibition  on  corporations  using  general

treasury funds to support state candidate  elections "ensures

that the  Act does  not hinder  or prevent  the institutional

press from  reporting on,  and  publishing editorials  about,

newsworthy events").

          As  the State can  furnish "clear reasons"  for the

asserted  exemptions from  the  Act's  prohibitions, and  the

reasons are  not only  clear but rational,  we hold  that the

Maine Act is not unconstitutionally underinclusive.

          D. As Applied Challenge
                                 

          Plaintiffs argue that  the Act is  unconstitutional

as applied to the activities  of plaintiff R.H. McKnight Co.,

a professional  fundraiser and  publisher of  law enforcement

                    

21.  To   the  extent  that  coercion  is  caused  by  police
solicitations  for   campaign  fundraising,  the   State  has
attempted  to minimize it by imposing certain restrictions on
such solicitations.   For example, Me.  Rev. Stat. Ann.  tit.
25,      3711  prohibits  solicitations  by  law  enforcement
officers while  in uniform.   Section 3712 prohibits  any law
enforcement officer  running for a nonpartisan  public office
from  soliciting on his own behalf.  Me. Rev. Stat. Ann. tit.
25,   3712.   Section 3713 prohibits  the use of  coercion in
solicitations.  Me. Rev. Stat. Ann. tit. 25,   3713.  Section
3714 makes a violation of these restrictions a Class E crime.
Me.  Rev. Stat. Ann. tit. 25,    3714.  Other restrictions on
law enforcement  officers  running for  elective  office  are
contained  in  statute,  union  contracts  and   departmental
regulations.   See  Me.  Rev.  Stat. Ann.  tit.  30-A,    355
                  
(Pamph. 1991) (regulating political  activity of sheriffs and
deputy sheriffs).   Together, these restrictions serve  as an
effective accommodation of  the First Amendment right  of the
police  to  engage  in  political  speech  with  the  State's
interest  in   preventing   coercion   inherent   in   police
solicitation.

                             -38-

magazines; plaintiff Charles Underwood, a private citizen who

wishes  to advertise in  such magazines;22 and  the plaintiff

law  enforcement association which  wishes to disseminate the

magazines.23     Plaintiffs   contend   that  the   sale   of

advertising in law  enforcement publications like  the "Maine

State  Trooper"  is  a noncoercive  undertaking.   Plaintiffs

point specifically to the allegedly noncoercive nature of the

system  of solicitation  designed by  R.H.  McKnight Co.,  in

which telephone solicitors supposedly make it clear that they

are not police  officers, and the names of persons who do not

purchase  advertisements are  not  directly released  to  the

sponsoring law enforcement organization.24

                    

22.  We  note that  plaintiff  Underwood  can  raise  no  "as
applied"  challenge with regard to his  right to advertise in
the  police magazines, as  the statute does  not prohibit him
from  advertising but from being  solicited to advertise.  As
                                           
such, his  claim is  rightly considered  along with  those of
plaintiff R.H. McKnight Co. and the plaintiff law enforcement
association.

23.  It  is debatable  whether plaintiffs  can  bring an  as-
applied  challenge  in  the  context  of  a   pre-enforcement
declaratory  judgment action.  See United States v. Gaudreau,
                                                            
860  F.2d 357,  360-61 (10th  Cir. 1988)  ("In  a declaratory
judgment action no  one has been charged so  the court cannot
evaluate the statute as applied.").  Rather  than embark upon
technicalities,  however,   we  prefer   to  consider   their
arguments on the merits.

24.    A  sample script utilized  by R.H. McKnight  telephone
solicitors states the following:

            AUBURN CONSENT FORM/SALES PRESENTATION
                                                  

                             -39-

                    

          Hello,           .  This is            calling
     on behalf of the Auburn Police I.B.P.O. 414.
          I am working for the  publishing company, and,
     as  you  may  already  know,  we  are  going  to be
     producing  the   Auburn  Police   I.B.P.O.  #   414
     Yearbook.   This Yearbook  will be  of the  highest
     quality with a full  8 1/2 x 11,  four-color cover,
     and will contain pictures of the officers in action
     here in Auburn  as well as articles of  interest to
     the general public.
          We anticipate that our publication will be the
     best  in  the  Auburn-Lewiston area.    We  will be
     producing 750 copies of  our publication and giving
     them out free of charge to the public, libraries or
     business  friends,  as  well  as  the  officers  of
     Auburn.  Funds derived from the sale of advertising
     will go  to scholarship fund  (sic), as well  as to
     improve law enforcement  and the working conditions
     of the officers right here in Auburn.
          May I tell you the advertising prices?

     In  addition, each  telephone  solicitor  must sign  the
following  agreement before  calling on  behalf  of a  police
organization:

                           CONSENT

     I             agree to  adhere to  the above  sales
     presentation  for the  Auburn Police  International
     Brotherhood of Police Officers Local # 414.  I will
                                                        
     not  state  or imply  that  I am  an  Auburn Police
        
     Officer  -- only  that I  am calling on  behalf of:
     (sic)  and that I work for the publishing company.

Affidavit of R.H. McKnight, Appendix 1.

     Finally, although the names of those who do not purchase
advertising  are  not   directly  disclosed  to  the   police
organization,  a disclosure and  thank you is  mailed to each
advertiser in the name of the police organization:

     Please make your check payable to the Auburn Police
     I.B.P.O. Local #  414 and send  with your ad  copy,
     letterhead,  or business card  to:  P.O.  Box 3291,
     Auburn,   Maine      04212.     The   International
     Brotherhood of  Police Officers  Local #  414 is  a
     non-profit   organization,    not   a    charitable
     organization.    Therefore,  your  payment  can  be

                             -40-

          Contrary to  plaintiffs' view,  we think  the Maine

Legislature could believe that solicitation of advertisements

to benefit law enforcement is inherently coercive because the

persons  solicited will  experience  pressure to  purchase an

advertisement so that  their support of law  enforcement will

become known  to police or  so that their  failure to  buy an

advertisement will  not be  noticed.   The Legislature  could

reasonably  doubt   that  the   solicitations  would   become

noncoercive  merely  because the  names of  those who  do not

purchase  advertisements were promised not to be disclosed to

the police.  The advertisements will be public.  Accordingly,

law enforcement  officers will  be aware  of who  contributed

and,  by  the  absence  of advertisements,  of  who  did  not

contribute.   Moreover, those solicited may not believe, even

if  they  are   assured,  that  their   names  will  not   be

communicated.   The Law Court in  MSTA was of the  view that,
                                      

quite apart  from  actual coercion,  the  state's  legitimate

interest included  maintaining the good  public reputation of

                    

     deducted as an advertising expense only.  Thank you
     for your support.  With your help we are able to go
     forward.   The telephone call you received was from
     a representative of the publishing company and  not
     a member of the Police Department.  Officers do not
     elect  to solicit as  it may unduly  influence your
     decision.   If you have any questions, please don't
     hesitate to ask.

                             -41-

its   police.    We   are  not  persuaded   that  plaintiffs'

alternatives would necessarily answer that concern.

          Because plaintiffs'  proposed solicitations  remain

inherently coercive, or at least do not remove the appearance

of  coercion and  favoritism, we reject  plaintiffs' argument

that the Act is unconstitutional as applied.

          E. Prior Restraint
                            

          Any   violation  of   the   Act's  prohibition   on

solicitation  that  tangibly  benefits   law  enforcement  is

considered  a violation of  the Maine Unfair  Trade Practices

Act.  Me.  Rev. Stat. tit. 25,   3702-A.  The Act, therefore,

can  be enforced either through civil penalties or injunctive

relief.     Finding  that  enforcement  of  the  Act  through

injunctive  relief would  constitute  an impermissible  prior

restraint, the district court  declared the injunctive relief

provision  of the Act  to be  unconstitutional.25   While the

                    

25.  Plaintiffs actually argued to the district court, and to
this  court,  that  the  Act's  categorical   prohibition  on
solicitation,   in    and   of    itself,   constitutes    an
unconstitutional prior  restraint.  According  to plaintiffs,
the Act constitutes a prior restraint because it "silences by
fiat  an entire category of charitable solicitation."  Auburn
                                                             
I, 756 F. Supp.  at 618.  In this respect,  argue plaintiffs,
 
the Act  is "a form  of censorship; it prejudges  rather than
punishes after the  fact."  Id.   Plaintiffs further  contend
                               
that  barring   solicitation  of  funds  is   a  particularly
effective  prior restraint  because law  enforcement agencies
will not have the financial resources to spread their message
to the general public.
     The  district   court  correctly   rejected  plaintiffs'
arguments  that the  entire Act  should be  invalidated  as a
prior restraint.    Under plaintiffs'  analysis,  almost  any
regulation  of speech would  be considered a  prior restraint

                             -42-

district   court's  concern   that  injunctions   are  rarely

tolerated in the  First Amendment context is  understandable,

we think the court acted improperly in invalidating the Act's

injunctive relief provision on its face.

          A prior restraint  is a government  regulation that

limits or  conditions in  advance the  exercise of  protected

First Amendment activity.  Fantasy Book Shop,  Inc., 652 F.2d
                                                   

at  1120.    Although the  classic  form  of  prior restraint

involves  an  administrative licensing  scheme, see  Jews for
                                                             

Jesus, Inc.  v. Massachusetts  Bay Transp.  Auth., 984,  F.2d
                                                 

1319, 1326-27  (1st Cir.  1993), a  judicial injunction  that

prohibits speech prior to a determination that the speech  is

unprotected also constitutes a prior  restraint.  See Near v.
                                                          

Minnesota,  283  U.S.  697  (1931).    Any  system  of  prior
         

restraints of  speech "comes  to this  Court bearing a  heavy

presumption    against    its    constitutional    validity."

Southeastern  Promotions, Ltd. v.  Conrad, 420 U.S.  546, 558
                                         

(1975);  Bantam  Books, Inc.  v.  Sullivan, 372  U.S.  58, 70
                                          

(1963); New  York Times Co.  v. United States, 403  U.S. 713,
                                             

                    

since most restrictions  on speech will have  consequences on
later  speech.   While the  Supreme Court has  cautioned that
"[b]road  prophylactic rules in  the area of  free expression
are suspect,"   Riley, 487 U.S.  at 801, the Court  has never
                     
said that  a  categorical ban  on speech  is a  per se  prior
restraint.    Instead, the  Court  has,  for  the most  part,
carefully   limited   the   prior   restraint   doctrine   to
administrative and judicial orders prohibiting speech  before
it is actually uttered.

                             -43-

714  (1971); Organization for  a Better Austin  v. Keefe, 402
                                                        

U.S. 415, 419 (1971).

          The  presumption against  the constitutionality  of

prior restraints is heavier than that against restrictions on

speech imposed by  subsequent penalties.  Vance  v. Universal
                                                             

Amusement  Co.,  445  U.S. 308,  315-16  (1980); Southeastern
                                                             

Promotions Ltd., 420 U.S. at  558-59; New York Times Co., 403
                                                        

U.S. at 733  (White, J., concurring).  The  Supreme Court has

explained the rationale behind this heavy presumption against

prior restraints as follows:

          Behind the distinction is a theory deeply
          etched  in  our  law:    a  free  society
          prefers  to  punish  the  few  who  abuse
          rights of speech after they break the law
                                
          than  to  throttle  them and  all  others
          beforehand.   It is  always difficult  to
          know in  advance what an  individual will
          say, and the  line between legitimate and
          illegitimate  speech is  often so  finely
          drawn  that  the  risks  of  freewheeling
          censorship are formidable.

Southeastern Promotions Ltd., 420 U.S. at 559.
                            

          The Supreme  Court, however, "has  never held  that

all  injunctions are impermissible."  Pittsburgh Press Co. v.
                                                          

Pittsburgh  Comm'n  on  Human Relations,  413  U.S.  376, 390
                                       

(1973).   "The  special vice  of  a prior  restraint is  that

communication  will  be  suppressed, either  directly  or  by

inducing excessive caution in the speaker, before an adequate

determination that it is unprotected by the First Amendment."

Id.   An injunction that  is narrowly tailored, based  upon a
   

                             -44-

continuing  course of  repetitive  speech,  and granted  only

after a final  adjudication on the merits that  the speech is

unprotected does not constitute an unlawful  prior restraint.

See  id.; Securities  &amp;  Exchange Comm'n  v.  Wall St.  Publ.
                                                             

Institute, Inc.,  851 F.2d  365, 370 (D.C.  Cir. 1988).   The
               

Maine  courts may interpret the statute  or apply it so as to

avoid  the issuance of  ex parte  restraining orders  or even

temporary injunctions,  using  their  equitable  powers  only

following full hearings and final adjudications.

          Because plaintiffs brought this action seeking pre-

enforcement  declaratory relief,  there  is, at  present,  no

injunction  restraining  solicitation  activities.    Without

having  before  us  the  concrete  example  of  a  particular

injunction, it  is difficult, if  not impossible,  for us  to

determine whether the prior restraint doctrine has or will be

violated.26   See American  Library Ass'n  v. Barr,  956 F.2d
                                                  

                    

26.  Injunctions, in  this respect, are  distinguishable from
administrative  licensing   schemes  that   constitute  prior
restraints.   "[W]hen  a  licensing statute  vests  unbridled
discretion in a government official over whether to permit or
deny expressive activity,  one who is subject to  the law may
challenge it facially without the necessity of first applying
for, and being denied, a  license."  Lakewood v. Plain Dealer
                                                             
Pub.  Co., 486  U.S. 750, 755-56  (1988); see,  e.g., FW/PBS,
                                                             
Inc. v.  Dallas, 493 U.S.  215 (1990); Freedman  v. Maryland,
                                                            
380  U.S. 51,  56 (1965).    In such  cases, it  is  the very
existence of  unbridled discretion  that is  constitutionally
unacceptable because  it "intimidates parties  into censoring
their own speech, even if  the discretion and power are never
actually abused."   Lakewood, 486 U.S. at 756.   By contrast,
                            
the  statutory  authority  to issue  an  injunction  does not
create the same danger.

                             -45-

1178,  1190   (D.C.  Cir.  1992)  ("Whether   use  forfeiture

constituted  a restraint on speech, prior or otherwise, would

seem  to  depend  on  the  nature of  the  property  and  the

circumstances  of  the  offender,  about  which  we  have  no

information  in this  case.").   We choose  to let  stand the

Act's  provision authorizing  enforcement through  injunctive

relief and leave for another day the  determination whether a

specific injunction     should the State decide to proceed in

such a fashion    constitutes an unlawful prior restraint.

                             III.

          We  hold   that   Maine's   Solicitation   by   Law

Enforcement Officers  Act, Me.  Rev.  Stat. Ann.  tit. 25,   

3702-A,   does  not  violate  the  First  or  the  Fourteenth

Amendments of the  United States Constitution.   The district

court's determination  that Me.  Rev. Stat.  Ann. tit. 25,   

3702-A is not  unconstitutionally overbroad or underinclusive

is   affirmed.    The  court's  declaration  that  the  Act's
             

provision  for  enforcement  through   injunctive  relief  is

unconstitutional is reversed.  
                            

          Costs to the State of Maine.

                             -46-

                           APPENDIX
                                   

                        STATE OF MAINE

     An Act to Amend the Laws Concerning Solicitation by
                   Law Enforcement Officers

Be it enacted by the People of the State of Maine as follows:

. . . .

          Sec. 5.   Legislative intent.  It is  the intent of
          Sec. 5.   Legislative intent.

the Legislature to  repeal all exceptions to  the prohibition

against solicitation  by law  enforcement agencies,  officers

and associations.   The  Legislature finds  that the  various

exceptions  to the  prohibition enacted  over  the years,  in

fact,  have led to inherently coercive solicitations and that

those  exceptions ultimately undermine  the integrity  of law

enforcement.  As a consequence, the Legislature repeals these

exceptions and reenacts  the prohibition on  solicitations by

or  on behalf  of law enforcement.   The  Legislature further

finds that solicitations for charitable purposes unrelated to

law  enforcement  activities  are  not  inherently   coercive

because the person  solicited will know that  law enforcement

agencies  or officers do  not gain any  tangible benefit and,

consequently will  not be concerned  with who donates.   This

Act clarifies and  reaffirms that the primary  and compelling

purpose  underlying the  laws governing  solicitation  by law

enforcement officers  is to  eliminate the  coercion that  is

inherent in solicitations by and on behalf of law enforcement

                             -47-

officers  by  prohibiting  such solicitations.    When  a law

enforcement officer solicits  from a  prospective donor,  the

donor  may not  feel totally  free to  reject the  request in

light of the  officer's position.  This  occurs regardless of

the   subjective  intent  of   the  officer  to   coerce  the

prospective  donor.    In  addition  to  the  effect  on  the

prospective donor, the  appearance of the transaction  to 3rd

persons may undermine  public confidence in the  integrity of

the  public  office.   At  least the  appearance  of coercion

inheres in  every  solicitation that  tangibly  benefits  law

enforcement  agents   and  the   appearance  undermines   the

integrity of  the office.    The Legislature  finds that  the

State has a  compelling interest in preserving  the integrity

of law enforcement officers and finds that regulating all law

enforcement   solicitations   that   tangibly   benefit   law

enforcement  is  necessary to  promote this  compelling state

interest.

[Priv. &amp; Spec. Laws 1991, Ch. 510.]

                             -48-
