Seventh Circuit Roundup: August Opinions Address Whether Paying Bail Is Speech and When Courts Can Decide Cases on State Law Grounds

In its sixth episode, Seventh Circuit Roundup covers two August opinions—Bail Project v. Indiana Department of Insurance and St. Augustine School v. Underly. 

The first case is a Free Speech Clause challenge to an Indiana law that requires charitable bail organizations to register with the State and limits for whom such organizations can pay cash bail. A divided 2-1 panel of the Seventh Circuit upheld the law, concluding that “paying cash bail does not inherently express any message,” since “a reasonable observer would not understand” the “payment of cash bail at the clerk’s office as an expression of any message about the bail system.” 

The second case is the latest in a long-running saga (including multiple Seventh Circuit decisions, as well as decisions from the U.S. Supreme Court and the Wisconsin Supreme Court) involving a suit brought by parents against state officials who denied the parents school transportation benefits. Although the parents focused their challenge on federal constitutional grounds, the Seventh Circuit ultimately sided with the parents on state law grounds. The court held that the parents could not force the Seventh Circuit to answer the federal constitutional question by forfeiting their state law arguments, explaining that plaintiffs “have no right to demand that the court’s decision be based on one theory versus another.”

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