United States Court of Appeals For the Seventh Circuit ____________________ No. 22-2183 THE BAIL PROJECT, INC., Plaintiff-Appellant, v. COMMISSIONER, INDIANA DEPARTMENT OF INSURANCE, Defendant-Appellee. ____________________

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:22-cv-00862-JPH-MJD — James Patrick Hanlon, Judge. ____________________

ARGUED DECEMBER 7, 2022 — DECIDED AUGUST 3, 2023 ____________________

Before FLAUM, KIRSCH, and JACKSON-AKIWUMI, Circuit Judges. KIRSCH, Circuit Judge. The Bail Project, Inc., is a nonprofit organization that advocates for the abolition of cash bail. At the core of its advocacy, the organization pays cash bail for thousands of individuals across the country. Its aim is to show that conditioning a pretrial defendant’s release upon the pay- ment of money is not necessary to secure appearances at fu- ture court dates. In response to The Bail Project’s efforts in 2 No. 22-2183 Indiana, the legislature passed, and the governor signed into law, House Enrolled Act 1300. The law requires charitable bail organizations like The Bail Project to register with the State. It also limits for whom such organizations can pay cash bail. The Bail Project sued in federal court and requested a preliminary injunction to enjoin the Commissioner of Indi- ana’s Department of Insurance from enforcing the law. It ar- gued that HEA 1300 (which had not yet gone into effect) would violate its First Amendment right to free speech and its Fourteenth Amendment right to equal protection. The dis- trict court declined to issue an injunction after concluding that The Bail Project had not shown a likelihood of success on the merits. The principal question on appeal is whether the conduct HEA 1300 regulates—the payment of cash bail—is protected by the First Amendment. We hold that it is not. Although The Bail Project pays cash bail for pretrial defendants with the in- tent to communicate its message and to further its advocacy, a reasonable observer would not understand the conduct it- self as communicating any message without additional ex- planatory speech. Thus, paying cash bail is not inherently ex- pressive conduct, and HEA 1300 does not implicate the First Amendment. We also conclude that the law does not violate the Equal Protection Clause because it is rationally related to the State’s legitimate interest in regulating pretrial detention of criminal defendants. Because The Bail Project has not shown a likelihood of success on the merits of either claim, we affirm the district court’s denial of a preliminary injunction. No. 22-2183 3

I A Indiana “strongly encourages pretrial release for many ac- cused individuals awaiting trial.” DeWees v. State, 180 N.E.3d 261, 268 (Ind. 2022) (citing Ind. R. Crim. P. 26). If a defendant does not present a “substantial risk of flight or danger” to oth- ers, then the trial court must “consider releasing the arrestee without money bail or surety,” subject to any reasonable con- ditions deemed appropriate by the court. Ind. Code § 35-33- 8-3.8(b). But if a court finds that a defendant poses a risk of flight or a danger to the community, then it has “broad dis- cretion” to set bail and other conditions of release. DeWees, 180 N.E.3d at 266–68; see also Ind. Code §§ 35-33-8-3.8, 35-33-8- 4(b); Ind. R. Crim. P. 26. Bail may not be set any higher than “reasonably required to assure the defendant’s appearance in court” or “to assure the physical safety of another person or the community[.]” Ind. Code § 35-33-8-4(b). There