motion to intervene san franciscans v chiu
Comes now proposed intervenor Robbin Stewart, pro se, and moves for permissive intervention pursuant to the rules of federal procedure. [look out for 9th circuit local rules.]
In the alternative, I seek intervention as of right pursuant to the federal and local rules.
In this filing, I will explain why I have an interest in the outcome, why my interests are not fully represented by the current parties, and why the additional claims raised are germane to the controversy.
This is a case about compelled speech. This is a case about disclaimers.
In 1960, in Talley v California, the Supreme Court ruled that disclaimer requirements on literature violate the First Amendment. Also in 1960, I was born. So I have lived much of my life in a country where expression, here anonymous political fliers, or books such as Huckleberry Finn, was protected under a constitution.
The court's rulings in this case threaten that fundamental right, and are in error.
In 1978 I took a course in civil liberties under the constitution. I was admitted to the Indiana bar in 1993.
Talley was a companion case to NAACP v Alabama ex rel Patterson (1958) and Bates v Little Rock, hereinafter “civil
rights cases.”
In 1995 the Court ruled that
there is no elections exception to the rule in Talley, in Estate of McIntyre
v. Ohio Elections Commission. The Ohio Supreme Court below had erred in
applying an intermediate level of scrutiny, as this court has done here.
The court then applied what
Justice Scalia, dissenting, called the kiss
of death.
Exacting scrutiny is a contronym.
In disclaimer cases it is “strict in theory, fatal in fact.” Id. In disclaimer cases, exacting scrutiny requires overriding state interests, narrowly tailored. This is the functional equivalent of strict scrutiny.
It is the opposite of the Valeo line of cases in which "exacting scrutiny" was a euphemism for the laxest scrutiny, a highly permissive level of review, that has by now been modified by Bonta.
"Disclaimers" and "disclosure" are terms of art. In disclaimer cases, strict and exacting scrutiny must be applied. In disclosure cases the less rigorous Bonta test applies.
That Citizens United lumped them together in dicta does not aid in our understanding. Below, I mention 6 or more reasons why Citizens is not a controlling case here. (table 5?)
In 1996 one of my signs was taken
down at a polling place, because it did not have a disclaimer. I brought suit and had the Indiana statute declared unconstitutional in Stewart v Taylor, 953 F. Supp. 1047 (1997).
The court held:
"Turning to the substantive issue in the case, we must determine whether section 3-9-3-2 violates Stewart's First Amendment right to freedom of speech. In McIntyre v. Ohio Elections Commission, 514 U.S. 334, 115 S. Ct. 1511, 131 L. Ed. 2d 426 (1995), the Supreme Court struck down as unconstitutional an Ohio statute that required all printed political campaign literature in the state to contain the name and address of the person or head of the organization responsible *1054 for the publication of the literature. The Court held that the Ohio statute violated the First Amendment because it burdened core political speech in a manner that was not narrowly tailored to serve an overriding state interest. Id. at ___ - ___, 115 S. Ct. at 1519-24. Stewart contends that this case is controlled by McIntyre. Stewart is correct. The Supreme Court made clear in McIntyre that campaign literature in support of a candidate for elective office is "core political speech" that is entitled to the fullest protection of the First Amendment."
I then settled the case, mistakenly expecting the state to abide by the ruling, but the legislature then passed 3-9-3-2.5, re-enacting the unconstitutional and void policy. See Majors v Abell, 3 cites. 317 F.3d 719 (7th Cir. 2003), 361 F.3d 349 (2004), https://law.justia.com/cases/indiana/supreme-court/2003/03170301-ad.html.
I am planning to bring an action in Indiana soon to enjoin 3-9-3-2.5. on behalf of a John Doe client who is the real party in interest here. At the present time I lack California co-counsel. I am here pro se as a temporary stand-in for my John Doe client.
Cases such as this one, and Smith v Helzer, and Gaspee Project, harm me, by creating confusion in the law which public officials, acting in bad faith, could use to argue qualified immunity, and attempt to evade civil liability for violating my civil rights as established by the civil rights cases referred to above. [talley, naacp, bates].
This summer the Court handed down 303 Creative v Enniss, ["303"]which is directly on point in this case. As in the instant case, 303 is about compelled speech,
The 9th circuit has denied a preliminary injunction in this case and has ruled that it will not entertain any more motions as the denial. However, the case in chief continues, and 303 is directly relevant.
Oddly, the ruling has been reissued after 303, in October 2023, at the same time as rehearing was denied, without any mention of 303. Similarly, both of the dissents to denial of rehearing en banc do not mention 303.
At the present time, the 9th circuit denial of injunction is not final, and plaintiffs may seek the shadow docket for a stay. But cases at the injunction level are often seen as not presenting a good vehicle for the court, so a motion for cert at this stage, if filed, may get denied, with or without comment. Or, the court could remand for rehearing in light of 303.
This court will be in the unenviable position where the direct guidance from the 9th circuit panel in this case is at odds with the supreme court's ruling in 303. How this works out procedurally is not my area of expertise.
[now 10:17 monday. i want to add sections from dubitante.]
In Majors, in the second round of 7th circuit opinions, Judge Easterbrook authored a dubitante opinion.
Wikipedia, the free encyclopedia, has an entry for dubitante:
Dubitante (Latin: "doubting") is used in law reports of a judge who is doubtful about a legal proposition but hesitates to declare it wrong. E.g., "Justice X acquiesces in the Court's opinion and judgment dubitante on the question of Constitutional preemption."
Examples: Majors v. Abell, 361 F.3d 349, 358 (7th Cir. 2004) (Easterbrook, J., dubitante).In Majors, Judge Easterbrook wrote a dubitante opinion, arguing that Judge Posner's opinion ignored four controlling cases from the Supreme Court protecting anonymous speech. He added:"Given McConnell, I cannot be confident that my colleagues are wrong in thinking that five Justices will go along. But I also do not understand how that position can be reconciled with established principles of constitutional law".[6]
include longer quote here
20EASTERBROOK, Circuit Judge, dubitante.
21Four decisions of the Supreme Court hold or strongly imply that the ability to speak anonymously — and thus with less concern for repercussions — is part of the "freedom of speech" protected by the first amendment against governmental interference. Talley v. California, 362 U.S. 60, 80 S. Ct. 536, 4 L. Ed. 2d 559 (1960); McIntyre v. Ohio Elections Commission, 514 U.S. 334, 115 S. Ct. 1511, 131 L. Ed. 2d 426 (1995); Buckley v. American Constitutional Law Foundation, 525 U.S. 182, 199-200, 119 S. Ct. 636, 142 L. Ed. 2d 599 (1999); Watchtower Bible & Tract Society of New York, Inc. v. Stratton, 536 U.S. 150, 166-67, 122 S. Ct. 2080, 153 L. Ed. 2d 205 (2002).
The Majors decision was properly criticized in ACLU of Nevada v Heller which relied on McIntyre, since McIntyre is the controlling case on this topic. Heller is in line with other 9th circuit decisions that have recognized a right to anonymous speech, under talley or mcintyre or both.
In re Anonymous Online Speakers, 661 F.3d 1168 (9th Cir. 2011), Rosen v Port of Portland, Magic Mike v City of Seattle. But see also cases such as Yamada.
I intervene to assert my rights as established by 303, as well as asserting other claims and arguments, including,
that strict scrutiny applies, or its functional equivalent, the McIntyre formulation of exacting scrutiny.
that whatever is left of a right to privacy under the First Amendment after Dobbs reversed Roe, is implicated here,
that the san francisco ordinance violates at least two provisions of the California constitution, the privacy clause enacted in 1972, amending article 1 section 1, and the free speech clause, article 1 section whatever, as interpreted in the binding case of Schuster, 1980,
that the ordinance violates California case law, such as Talley, Bongiorni, Drake, Schuster, and Griset,
that the ordinance violates numerous controlling supreme court precedents including talley mcintyre aclf watchtower tornillo riley wooley dale hurley NIFLA Janus and 303.
There are prior 9th circuit cases on both sides of the controversy here.
heller, rosen, magic mike, that anonymous speakers case, i have the cites written down in another post.
this filing incorporates by reference the amicus brief of daniel suhr and the two dissents to denial of rehearing en banc.
tables 1 and 3 are lists of cases which are in support of my position.
For relief, I ask for the following, and for such other relief as is in the interest of justice:
a declaratory judgement that the san francisco rule violates the California constitution,
a declaratory judgment that the rule violates the First Amendment,
assess court costs and legal fees against intervenor Campaign Legal Center as to both Plaintiff and myself. stopped here 11:27 pm sunday 11/19 so 1.0 hours tonight, after about 20 minutes at lunchtime then 1 hour this morning. ok here's a short bit more:
Permissive intervention is more likely to be granted when plaintiff does not adequately represent intervenor's interests. Here, plaintiff is represented by Mr, Alan Gura, known as one of the best lawyers in the country, while I am a mere pro se litigant at this stage, so it may be chutzpah to think I have something to contribute.
There are several key strategic decisions in which I am at odds with the plaintiff's position.
First, both parties, and the court, have the standard of review wrong. Plaintiff's apparent concession that the Bonta standard of scrutiny applies to the disclaimer claim, is in error. It does apply to the disclosure claim.
Second, Plaintiff has made no claims under the California constitution, when Schuster is controlling. The 20 cases in 13 states under 13 state constitutions, listed in table 2, are relevant to this discussion.
The panel decision of the 9th circuit tended to follow the erroneous minority line of cases such as Smith v Helzer and Gaspee Project v Mederos. What these cases have in common is the briefing of CLC, which has been telling a tale of Citizens United, section IV, as being some kind of superprecedent.
There are 50 cases or more listed in table 1 which follow the majority rule which is to follow Talley. The minority line has at least 10 cases.
[table 2]
Third, both Plaintiff and the court, significantly the first of the two dissents to denial of rehearing, focuses on the impractability of the specifics of the sponsors of sponsors which must be listed on the disclaimer. While true, I have a different point: that no disclaimer of any kind can be required. We need to cut through the Gordian knot. "Vote for Smith". That is a simple example of protected speech, which San Francisco may not criminalize or fine or interfere with.
4th and 5th, the unconstitutional policy is racist and sexist, and violates the 13th, 14th, and 15th Amendments, when considered together. Censorship of political speech is a badge of slavery, Jones v Meyer. The censorship here implicates 3 clauses of the 14th Amendment, due process, equal protection and privileges or immunities. Freedom of speech is among the privileges and is among the immunities of federal citizenship, even after Slaughterhouse. The 15th Amendment was intended to provide full political participation for negroes. Disclaimer statutes such as the one faced by Manuel Talley. a black man married to a white woman in 1960, were relics of Jim Crow. Public policy in 2023 does not support retaining these vestiges of an earlier era.
Disclaimer statutes such as the one faced by Margaret McIntyre in 1995 were part of a series of formal and informal social pressures on women to not speak out about politics.
I consider these 4th and 5th claims to be not as strong as the first three, but include them because defendants here, and their co-party, feel no shame in engaging in unconstitutional censorship after having sworn an oath not to do so, but may feel vulnerable to public accusations of racism and sexism, given the current climate of cancel culture.
I rarely go to San Francisco. I have a history, since 1970, of being active in political campaigns by distributing literature or putting up signs. I have held appointed public office in 4 states, have won primaries and lost general elections. I intend to make one or more signs in support of one or more Libertarian Party candidates in San Francisco in 2024 and 2026, in order to have standing under Sierra Club.
It is not my intent, by intervening, to do anything to delay or obstruct this case. merely participating as an amicus might have been insufficient to raise claims under the state constitution, which are potentially dispositive.
respectfully submitted,
robbin stewart. 12:01 monday morning.
I express no arguments about the disclosure aspects of this case. My concern has to do with the disclaimers. 11:56, another stop for the night.
9 46 a m monday 20 minutes editing. 3:29 pm, another 20 minutes.
add comm v wadzinski. now 11:03 am still monday. not sure if this most recent time was billable, mind wandered.
[It is my hope that 9th circuit cocounsel can be found]
