Georgia's governor and attorney general encouraged the Eleventh Circuit to reverse a district court ruling temporarily blocking enforcement of the state's cash bail reform law, arguing the lower court wrongly found the act of paying bail to be inherently expressive.

The law, which would make it illegal for people, charities, groups and organizations to post more than three cash bonds in a year and require charitable bail funds to register as bonding agencies, was temporarily blocked after a district court found it was unconstitutionally vague and likely violated the First Amendment by imposing a content-based restriction on entities purporting to be charitable bail funds.

Attorney Stephen Petrany, representing Gov. Brian Kemp and Attorney General Christopher Carr, told a three-judge appellate panel Tuesday that those rulings must be reversed because the lower court reached its conclusions by looking at all the plaintiffs' conduct "except for paying bail." That was inappropriate, he argued, because things like "what's going on outside of prison or on social media" aren't relevant for determining the law's constitutionality.

U.S. Circuit Judge Embry J. Kidd pushed back on that, asking Petrany if he thought context mattered.

"If it transformed what was otherwise an ordinary act into something inherently expressive, then it would," Petrany said. "But what we're talking about here is someone in a jail paying money to a clerk. The fact that the plaintiffs or their colleagues might be posting on social media or in the parking lot, saying certain things or wearing certain T-shirts, doesn't somehow transform those acts."

U.S. Circuit Judge Nancy G. Abudu then asked Petrany why the district court provided several pages on the history of cash bail in the United States in its decision if that was true.

"The history is certainly a history of people paying bail and maybe even doing it for charitable purposes. But that doesn't turn it into a history of a reasonable observer understanding, in all circumstances, that paying bail is inherently expressive," Petrany said, noting that the U.S. Supreme Court has previously held that the need to explain an act to others with other speech means it is not inherently expressive.

Petrany added that the state wasn't arguing context didn't matter at all. In fact, he said "it really matters" when considering that the act of paying bail typically happens in a jail, "which is not historically a place of free expression or even a forum for expression."

"I think there is a history of people paying bail for people who some organizations might think have been wrongly imprisoned," Judge Kidd said. "That's certainly not new."

Petrany didn't deny that, but he argued that the judges' questions were conflating a history of charitable activity with a "history of understanding something as inherently expressive" when those things are "wildly different." For example, he said there is a long history of charitable organizations running hospitals for those who cannot otherwise afford medical care. That doesn't make medical care expressive, he said.

In the same way, Petrany argued that no reasonable observer would interpret a message from watching someone "hand money over to a bail clerk," unless they've engaged with protesters or someone from the group paying the bail beforehand.

"Just speaking for myself, let's say you lose on the expressive conduct argument," Judge Abudu said. "Has the state provided sufficient arguments related to its interests to also rule at this stage on those as well, and whether you've satisfied that burden?"

"Even if this court were to somehow decide that paying bail is inherently expressive, I don't think it would matter because it is a government program in a government facility," Petrany said. "The state is allowed to decide what speech it wants to allow in its own programs."

Judge Abudu said that wasn't true, as state decisions are subject to judicial review, then asked again about his clients' interests.

Petrany said the state implemented the law because it was concerned about "getting detainees to come to their hearings," prompting the judges to ask him why bail alone was not enough to meet that need.

"The inherent logic here is that someone is going to show up to a hearing because they have skin in the game," Petrany said. "If you're concerned that the detainee isn't putting their own money on the line and that a charity is putting the cash up and doesn't care if it disappears, then that is a concern."

Attorney Alexandra Lichtenstein, representing the plaintiffs who challenged the law, argued that the charitable payment of bail could not be anything but inherently expressive.

"If a reasonable observer saw a large group gathering in the parking lot of a jail in matching shirts, holding signs and banners, carrying flowers and gifts, livestreaming, cheering and engaging in dance, that indicates something different and dissimilar from someone bailing out a son or neighbor is happening," Lichtenstein said. "This is a different kind of conduct."

"Does your argument that the paying of bail is expressive depend upon the people who are in the parking lot wearing the T-shirts who are welcoming the person released from jail?" U.S. Circuit Judge Elizabeth L. Branch asked.

Lichtenstein said it didn't because a reasonable observer would also recognize charity workers introducing themselves to those they are bailing out and offering them "support in faith" as expressive conduct.

Lichtenstein then noted that the district court found the statute to be unconstitutionally vague due to its use of the word "group." Because that word is included, she argued that there is "simply no way" for anyone who wants to pay cash bail for others to do so knowing they were in compliance with the law.

"That is inherent vagueness that the constitution does not allow," Lichtenstein said.

As to Petrany's argument about the state's interests, Lichtenstein said there were a number of other ways the state could have tried targeting the problem of detainees skipping hearings.

"They could have targeted specific underlying offenses and said that cash bail payments made by third parties aren't allowable for those things, or required additional support that the plaintiffs already offer," Lichtenstein said.

Instead, she argued that evidence shows that the third-party payment of bail does not make it any less likely that a detainee will appear for proceedings and that the majority of those bailed out in that manner do, in fact, show up.

Tuesday's arguments come after Barred Business Foundation, an Atlanta-based nonprofit whose activities include facilitating campaigns to pay cash bail, and John Cole Vodicka and Steven Williams, who run a charitable bail fund in association with their church, filed suit to challenge the law in 2024.

In their suit, the plaintiffs argued the statute arbitrarily restricted the First Amendment rights of organizations that advocate in opposition to wealth-based detention by making bond payments for those unable to do so themselves, as well as the First Amendment rights of individuals like Vodicka and Williams, whose charitable efforts are an expression of their religious faith.

U.S. Circuit Judges Elizabeth L. Branch, Nancy G. Abudu and Embry J. Kidd sat on the panel for the Eleventh Circuit.

Kemp and Carr are represented by Beth Burton, Elizabeth Crowder, Christopher M. Carr, Stephen Petrany and Elijah J. O'Kelley of the Office of the Georgia Attorney General.

Barred Business, Vodicka and Williams are represented by Corey Isaacson, Andrés López-Delgado and Akiva Freidlin of the American Civil Liberties Union Foundation of Georgia and Alexandra Lichtenstein, Rupa Bhattacharyya, Shelby Calambokidis, Joseph Mead and William Powell of Institute for Constitutional Advocacy and Protection.

The case is Barred Business et al. v. Governor of the State of Georgia et al., case number 24-12289, in the U.S. Court of Appeals for the Eleventh Circuit.

--Editing by Jay Jackson Jr.