Sunday, October 27, 2019

Monday, October 21, 2019

to do list

1. memo on washington post 4th circuit appeal. basis for amicus or article

2. complaint in putnam county case.

3. complaint in long beach indiana case.

4. virginia vote for smith case.

1. memo on washington post 4th circuit appeal. basis for amicus or article

summary of argument:
I. This is a disclaimer case.
2. if nonseverable, disclosure provisions fall as well. if severable follow district court analysis - press clause. fix aclf problem.
3. safe harbor section 230 allows for constitutional avoidance.
injunction can be upheld on any grounds. not abuse of discretion.

summary of argument:
I. This is a disclaimer case.
This is a disclaimer case. It is unhelpful to confuse disclaimers with disclosure.
The line of disclaimer cases runs from Talley v California (1960) through McIntyre v Ohio Election Commission, Buckley v. ACLF, Watchtower v Stratton, Reed v Village of (sign case), Becerra.



Disclosure has a separate line. NAACP v Alabama ex rel. Patterson, Bates v Little Rock, Buckley v Valeo, Buckley v ACLF, Doe v Reed. disclosure is a vague term - these are reporting cases.

These narrow topics operate within a more general framework of constitutional limits to compelled speech. Barnette, Wooley v Maynard, Tornillo v. Miami Herald, Federation of the Blind (riley?) AID v Open Society, Janus v nifla. Reed v Village of Windsor.

billing note 10 pm 10:30pm october 21 monday roughest outline of some notes on these 4 cases.
earler, correspondence and research re putnam county case, 5-6 pm.

argument:
I. This is a disclaimer case.
This is a disclaimer case. It is unhelpful to confuse disclaimers with disclosure.
The line of disclaimer cases runs from Talley v California (1960) through McIntyre v Ohio Election Commission, Buckley v. ACLF, Watchtower v Stratton, Reed v Town of Gilbert(sign case), Becerra.



Disclosure has a separate line. NAACP v Alabama ex rel. Patterson, Bates v Little Rock, Buckley v Valeo, Buckley v ACLF, Doe v Reed. disclosure is a vague term - these are reporting cases.

These narrow topics operate within a more general framework of constitutional limits to compelled speech. Barnette, Wooley v Maynard, Tornillo v. Miami Herald, Federation of the Blind (riley?) AID v Open Society, Janus v nifla.

discuss citizens united.


2. if nonseverable, disclosure provisions fall as well. if severable follow district court analysis - press clause. fix aclf problem.
3. safe harbor section 230 allows for constitutional avoidance.
injunction can be upheld on any grounds. not abuse of discretion.


2. complaint in putnam county case.

5. complaint in long beach indiana case.

adding notes 10/28/19 11:50 pm

 This is a case in which the State of Maryland is attempting to censor core political speech by newspapers on the internet. The court below properly enjoined the statute which is void as unconstitutional. Injunctions are reviewed for abuse of discretion and error of law.
An injunction may be upheld on other grounds that those relied on below. Here, the decision below was well thought out and almost entirely correct, and should be upheld.


Each of the 4 factors for injunctive relief are met. 1. Plaintiffs are highly likely to prevail on the merits. 
2. The balance of equities is in their favor. There is very little benefit to the state by restricting online political speech by the institutional press. The press would be severely harmed if it were to compelled to let the state dictate the content of its ads and sites, be required to report its content to a star chamber of censors
3. Interference with free speech and free elections is irreparable harm.
4. The public interest in free elections, a free press and free speech would be damaged if the court were to allow the proposed unconstituttional censorship.


The statute is void as a matter of state law, because it conflicts with the state constitutions free press and free elections provisions.
This aspect has not been pled or briefed by the parties. But it would allow the injuntion to be upheld without having to reach federal questions. The state constitutional problems come up again below. If the court reaches the issue of evaluating the reporting provisions under the valeo exacting scrutiny standard, it is relevant that some of the legislative preferences do not constitute legitimate interests to be balanced against their burden on free expression and fit between the ends and means.
There is no maryland case exectly on point, but 13 states have found disclaimer rules unconstitutional under state constititions, and the state constitutional text has a plain meaning which can be followed. the statute is ultra vires, beyond the authority of the legislature to enact, and should be deemed void and unenforcable.


The statute is void under the safe harbor provisions of section 230 of the 1996 telecommunications act, (Public Law 104-104) if the court chooses to invoke the doctrine of constitutional avoidance. Reno v ACLU. The state attempts to burn the global village to roast the pig. 

Only if the court finds the statute is a proper excercize of state power and neither expressly in conflict with the section 230 or preempted by it, need the court continue onwards to reach federal constitutional issues.

The statute is void under the speech clause of the first amendment.
Barnette was a free expression clause case, but established a right to be free from compelled speech. Defendants seek a return to the Gobitis era, in which those with unpopular opinions could be hunted down and persecuted. Recent cases such as Becerra, Janus, and AID v Open Society, have cited Barnette for the principle that government cannot compel political speech.
Talley, McIntyre, Buckley v aclf, watchtower v stratton, are among the cases finding disclaimer regulations unconstitutional under the speech clause. 
discuss the annapolis shooting. connection to baltimore sun.

The press clause is also applicable. 
McConnell v. FEC rejected the idea that the press clause is analytically distinct from the speech clause. But the many cases about the freedom of the press, from the large institutional press like NYT v Sullivan to the lone pampleteer like Manuel Talley (Talley v California), find that strict scrutiny is the usual standard of review, and government may neither ban nor compel speech expressed via the press. Peter Zenger's case, 1735, was about the right of a printer to anonymously publish books critical of the King's officials. The legacy of that case was the adoption of the 1st amendment. Miami Herald v Tornillo, Talley, Wooley v Maynard, McIntyre v Ohio, ACLF are free press cases holding that states may not compel speech, whether in a newpaper, pamplet, license plate, or identification badge. These cases control here. 
The petition clause is also at issue. Ads for candidates and ads about election issues are part of how we petition the government for redress of grievances. The statute here intrudes too much into that process.  

There has been, since Talley, a split in authority as to whether disclaimer rules are permisible, but the weight of authority is that such rules are unconstitutional and void. [insert list of cases]

Under McIntyre and Reed v Town of Gilbert, the standard of review for disclaimer cases is strict scrutiny. Dissenting in McIntyre Justice Scalia referred to strict scrutiny as the kiss of death standard.  I am not aware of any disclaimer case that has applied stict scrutiny and still upheld the statute. Burson v Freeman and (ny judges cases) show that this can occasionally happen. 

Applying strict scrutiny, the disclaimer provisions of the Maryland statute are void, and must be enjoined. 
For the same reasons, the searchable online database of ads is also void. 
This next raises the question of severability. The court will need to decide whether parts of the statute could be saved, or whether the statute as a whole shoud be found unforcable and enjoined. 
The better view is to strike down the whole statute, or at least continue the injunction while the case proceeds. 

The legislature might or might not have intended to enact a reporting requirement apart from the overall unconstitutional scheme. Only if this court determines that the remaining sections are severable, would it need to then go on to  decide whether they also are unconstitutional in their own right.

Striking down the disclaimer and other compelled speech provisions of the statute is fairly simple, once they are correctly understood to be disclaimers and not dislosures. A closer question is whether  the reporting provisions, if they stood alone, could be upheld. 
It is uncear to me whether the appropriate standard of review is strict scrutiny or so called exacting scrutiny. 


The plaintiffs are Maryland's institutional press and their online counterparts. There are numerous cases upholding some variety of reporting form of disclosure under the Valeo execting scrutiny standard, or only striking down specific as-applied challenges as in NAACP v Alabama ex rel. Patterson, Bates v Litle Rock, Brown v Socialist Workers.
But these regulations are typically directed at candidates committees, political action committees, and similar entities, with express exemptions for the institutional press.

I am not aware of any upholding of reporting regulations for newspapers or websites. 

The exception is the Red Lion categoty of cases involving broadcast TV and radio, with their regulated public licences of scarce wavelengths. 

The internet is the opposite of scarcity; millions of websites reach billions of consumers of information. 
The court below held that under either standard, the reporting provisions of the statute  are unconstitutional. This seems correct.

1:45 am 10/29/19.



























lection Board decides on four challenges
By JARED JERNAGAN
Assistant Editor
Over the years, the three-member Putnam County Election Board has been fortunate not to have to adjudicate too many decisions between two sides in political disputes.
Have there been disagreements? Misunderstandings? Even violations of election law?
Certainly, but they’ve always been handled less formally than going before the board for a hearing.
“In the 20 years I’ve been associated with the clerk’s office, we have never had a complaint go to the Election Board,” Putnam County Clerk Heather Gilbert, who chairs the board, said Thursday.
In the past, Gilbert said she or her predecessors Marty Watts and Opal Sutherlin could simply call the offending parties, let them know of the mistake and it would be dropped when they agreed to fix it.
She compared it to when a police officer issues a warning rather than a traffic ticket.
“That’s always been good enough,” Gilbert said.
And yet, there Gilbert sat Thursday night, with her two fellow members -- Republican appointee Jack Sutton and Democrat appointee June Wolfe -- at her side, ready to hear four new challenges, bringing the count to seven since August.
“This year, for whatever reason, nobody wants to let that go and we have four challenges before the Election Board,” Gilbert said.
“All I can say is that now our hand’s been pushed and we have to make a decision,” she added. “Do I feel it’s been taken too far? Yes.”
Fillmore parade signs
Current Fillmore Town Council member James “Bill” Ashcraft challenged fellow at-large town council candidates Jerry Huff and Robin Duncan (also an incumbent) and town clerk-treasurer challenger Tonya Gruenholz based on signs they held up in the Fillmore Fire Department Chicken Barbecue Parade last month.
The signs, which were homemade with posterboard and magic markers, did not contain a disclaimer saying who had paid for them. This is a violation of state election law, even for homemade signs.
Huff, Duncan and Gruenholz did not deny the violations, instead saying they did not realize homemade signs applied and had learned their lessons.
“We’ve learned. It won’t happen again,” Duncan said.
It was at this point that Gilbert made her statement about such things having been handled less formally in the past before noting the Election Board’s role in such matters.
Like a police officer, the board only determines if a law has been broken before turning the final determination of charges to the prosecutor’s office.
The three board members pretty easily agreed that a violation had indeed taken place. However, they also all agreed that the Class A misdemeanor charge -- and with it up to a year in jail and/or up to a $5,000 fine -- was out of line in this case.
So, by unanimous decision, the board ruled that the law was violated, but sent the report to Putnam County Prosecutor Tim Bookwalter with a recommendation that he not file charges.
“I believe that this was a ridiculous thing to file on,” Gilbert concluded. “It was a handmade sign, worth no money and I don’t believe it is even worth the court’s time.”
Democrat picnic ad
The second matter before the board was a bit more thorny, as it actually involved a paid advertisement in the paper.
Haywood Ware, GOP candidate for the Third Ward of Greencastle City Council, challenged an ad placed by the Putnam County Democrats in the Banner Graphic last month, advertising a meet the candidates picnic.
The ad also lacked the “paid for by” disclaimer.
Ware said little of this challenge, noting that the ad “kind of speaks for itself.”
Defending the matter for the Democrats was Russell Harvey, in place of county chairwoman Kim Fidler.
Harvey emphasized that the law was broken in error, not as a way to hide anything. 
As the discussion of the board members opened, Gilbert noted how she saw this as different than the first case.
“In my opinion, this is a much more serious offense,” Gilbert said. “The political parties know that they are supposed to run the disclaimers.”
After further discussion, the board again voted unanimously that the law had been broken However, this time they sent it to the prosecutor with no recommendation.
“I do sympathize with how it could be left off,” Gilbert said. “I honestly, in my heart of hearts, don’t think he (Prosecutor Bookwalter) is going to go after this. I think he has bigger fish to fry.”
Challenge to League of Women Voters
The third challenge of the night might have been the most contentious, though in the end the complainant asked that it be dropped.
Ware was challenging the longstanding practice of the Greencastle League of Women Voters posting the election results on the white board at the courthouse on election night.
In this matter, June Wolfe’s husband Eric served as her proxy on the board, as she is a member of the LWV. Gilbert noted that Eric was already in place as her proxy and that she had come forward to note her conflict of interest in this matter.
To begin with, Ware’s complaint was read. 
He opened with an accusation that LWV President Leslie Hanson had gone to the DePauw police chief on Oct. 7 and “told her that she expected trouble from Haywood Ware” during the LWV-hosted candidates’ forum two days later.
For this reason, Ware chose not to participate in the forum.
The fundamental matter to the complaint, though, was Ware believing that the LWV and Hanson in particular should not have a part in reporting election totals.
“She is bias(ed) and a lobbyist for the Democratic Party,” Ware wrote. “Why this has been allowed all these years, I don’t know. I can’t be the only one to ever complain.
“Leslie Hanson has no business handling ballots or totals at any election,” he added.
Gilbert established that neither the forum, nor Hanson’s friendship with Ware opponent Veronica Pejril would be discussed.
Ware tried to open his statement by telling of when he approached Hanson about joining the League of Women Voters.
Both Gilbert and Sutton quashed this as irrelevant.
This upset Ware, who then expressed his displeasure at Eric Wolfe serving as his wife’s proxy.
“I don’t think husband and wife works for me. So I’m just going to drop the charges,” Ware said.
However, the hearing continued, addressing Ware’s assumption that others shared his concern about the League’s involvement on election night.
LWV volunteers used to serve as runners for the clerk’s office, actually taking results from one office to another before they had been officially reported.
Retired Democrat Election Board member Bud Sharp expressed his concern over this practice and it was changed. League volunteers only handle the results after they have been officially recorded and reported to the state.
“They’re not getting any information before it becomes public record,” Gilbert said.
“No one has access to any ballots before we tally them up and release them as official totals,” Sutton added.
“That’s not what I was told,” Ware responded.
After this, Hanson responded to the complaint.
“The League is proud to be non-partisan, neither supporting nor opposing candidates or political parties at any level of government,” Hanson said, “but always working on issues of vital concern to members and the public. As the president of a local League chapter I have a responsibility to be non-partisan and not personally support any candidates or political party.”
She then directly addressed accusations
Regarding going to DePauw Police Chief Charlene Shrewsbury, Hanson said she could not have, as she was in Albuquerque, N.M., that day. She went further and said that no LWV member spoke to Shrewsbury.
Hanson did, however, say that Sheriff Scott Stockton reached out to her regarding attending the forum. 
She also said she is not a lobbyist for the Democratic Party.
“I work hard to maintain my non-partisan status as the League president and I am not a lobbyist for the Democratic Party, nor have I ever been,” Hanson said.
Finally, Hanson addressed the matter at hand, saying the same thing that had already been said by Election Board members.
“Our volunteers and indeed the general public are not allowed in the courthouse until after voting has concluded,” Hanson said. “I nor any other League member handles ballots and we do not have any opportunity to alter the official vote total that is given to us by the clerk or her employees. The totals that go on the big board are from the clerk’s print out, which is also the same public document that the Banner Graphic and party officials receive that evening.”
When Hanson was done speaking, Gilbert also noted that 12 letters had been submitted in support of Hanson and the LWV.
At the end of more discussion, Eric Wolfe moved to dismiss the complaint, based in part on Ware’s request it be withdrawn. 
Sutton seconded the motion and it passed 3-0.
Ware signs challenged
Ware found himself on the other side of the final challenge, as Fidler had brought a complaint against two of his signs, saying they did not contain the proper disclaimer.
Both signs were situated on Indianapolis Road in Greencastle. One of them in the yard next to First National Bank and the other on the back of Phil Gick’s property that butts up to Indianapolis Road across from Headley Hardware.
Fidler had come to the clerk’s office, providing pictures of both signs, saying they did not contain the proper disclaimer.
One problem, however, was that both photos were taken at night and there was a shadow on at least one that could have been blocking the disclaimer.
Ware provided photos of the signs that he said showed they were not in violation.
In the case of the sign next to First National, Gilbert found the disclaimer was on only one side, which is all that is required by state law, provided it is on the “front.” However, on the advice of the State Election Division, the board did not further consider which side is the front and chose to dismiss this complaint.
The second sign -- which has since been removed anyway -- was harder to determine. When Gilbert got to it, she found a disclaimer on it.
The question then was if the disclaimer had been there before or if Ware, a 70-year-old with a bad knee, had crossed the road while it was under construction and climbed the hill that had been dug out for a new sidewalk in order to replace the original.
With the distinct possibility that the disclaimer had simply been in a shadow, the board voted unanimously to also dismiss this challenge.
---
In a meeting that lasted nearly 90 minutes, two challenges were upheld, though not with strong endorsements to pursue them further, while the other two were dismissed.
It seemed that in Gilbert’s estimation, as well as others present, it was time that could have been better spent on other matters.

“I feel like we should be a little more kind to each other,” Gilbert said.

Tuesday, October 15, 2019

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Wednesday, October 09, 2019

got into study 
charger 35
paid mom back 8000
gas 100
oil change 28 already noted\
firat week out: 
hostel 40
battery 140
computer 200
groceries 10
gas 30ish, noted in logbook.

expected gross 6600.

year estimjate gross income

studies     10600
plasma       1000
oil              5000
rent            5000
mom          2000
bank bonus   500
dishwashing 2000
sale of house  350
more studies or plasma x.
more bank bonus y
26,450 + x + y.

expenses
paid loan 2400.
paid mom 8000.
paid texas taxes 900
miles $2250 nebraska
miles $1400 baltimore
december screening miles
days nebraska 1000
days baltimore 1500
hostel 31 so far
tolls 35+8.
computers 380
internet 600 phone 250
po box 70
indiana property tax 1200
strippers and beer 100.

to do absentee ballot
write chapter in autobio
get webcomic
check annual blog stats.