No. 21-890
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Supreme Court of the United States [needs gothic font]
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Gaspee Project And Illinois Opportunity Project, Petitioners,
V.
Diane C. Mederos, Stephen P. Erickson, Jennifer L. Johnson, Richard H. Pierce, Isadore S. Ramos, David H. Sholes, And William E. West, In Their Official Capacities As Members Of The Rhode Island State Board Of Elections, Respondents.
__________
On Petition for a Writ of Certiorari to the U.S. Court of Appeals for the First Circuit
Amicus Curiae Brief of Robbin Stewart in Support of Petitioners
*[Redacted] info as counsel of record
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Table of Contents
Table of Authorities
Interests of the Amicus Curiae
Summary of Argument
Argument
I. There is a deep split in lower courts.
Question presented.
Talley v California is being resisted by states and courts.
At least 36 cases have sided with Talley, while at least 12 cases side against.
The circuit courts have split 5-4.
At least 12 states have ruled with Talley as well as their state constitutions, while at least 2 went the other way.
II. Citizens United Part IV created confusion.
States and lower courts, as here, are misreading Citizens United to have overruled Talley and McIntyre.
This is error because the text at issue is dicta, is out of context, is limited to corporations, was a less restrictive means than a total ban, is at odds with prior precedent, and has been superseded by more recent cases including Becerra.
III. The case is important because free elections require free speech.
IV. This could be the Court's first opportunity to explore the new Bonta standard.
V. The case could be decided under state law, avoiding the federal question.
Conclusion.
Table of Authorities
A–1 A–Lectrician, Inc. v. Snipes, (9th Cir. 2015)
ACLU of Georgia v. Miller, (977 F.Supp. 1228 (N.D.Ga 1997),
ACLU of Nevada v Heller 378 F.3d 979 (9th Cir. 2004),
ACLU v. Reno, 117 S.Ct. 2329 (1997),
AID v Open Society, 570 U S 205 (2013)
ALA v. Pataki, 969 F.Supp 160 (1997),
Anonymous v Delaware,Civ. No. 17453 (Del. Ch. May. 10, 2000),
Arkansas v Butler, 983 F. Supp. 1209 (W.D. Ark. 1997).
Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990)
Bailey v. Maine Commission on Governmental Ethics, 2012 WL 4588564 No. 1:11-CV-00179-NT, (D. Me. Sept. 30, 2012)
Barnette , W.VA Board v., 319 US 624 (1943)
Bates v. Little Rock, 361 U.S. 516 (1960)
Becerra, NIFLA v., 585 US _ (2018)
Bonta, Americans for Prosperity Foundation v., 594 U S __.
Borough of Duryea v. Guarnieri, 564 U.S. 379, 388 (2011)
Buckley v. American Constitutional Law Foundation, 525 U.S.182 (1999),
Canon v. Justice Court (1964) 61 Cal.2d 446, 457, 39 Cal.Rptr. 228, 393 P.2d 428,
Ctr. for Individual Freedom, Inc. v. Tennant, 849 F. Supp. 2d 659 (S.D.W. Va. 2011)
Citizens PAC Political Action Committee v. Davidson, 236 F. 3d 1174 (8th Cir. 2000)
Citizens United, 558 U.S. 310 (2010)
City of Bogalusa v. May, 212 So.2d 408 (1968),
Commonwealth v. Dennis, 329 N.E.2d 706 (Mass. 1975),
Cooper v Aaron, 358 U.S. 1 (1958)
Crawford v Marion County Election Board, 553 U.S. 181 (2008),
Cyberspace v. Engler, 55 F.Supp.2d 737 (E.D. Mich 1999),
Dennis v. Massachusetts, 329 N.E.2d 706 (Mass. 1975),
Doe v. 2theMart, 140 F.Supp.2d 1088,
Doe v. Mortham, 708 So.2d 929 (Fla.1998),
Ex Parte Harrison, 110 S.W. 709, 212 Mo. 88 (M0 1908),
Gable v Patton, 142 F.3d 940 (6th Cir. 1998).
Gaspee Project And Illinois Opportunity Project, v. Mederos,
Gobitis v. Minersville, 310 US 586 (1940)
Gremillion v. NAACP, 366 U.S. 293 (1961)
Griset v. Fair Political Practices Commission, 69 Cal. App. 4th 818, 82 Cal. Rptr.2d 25 (1999), reversed on other grounds,
Griswold v. Connecticut, 381 U.S. 479 (1965)
Hansen v Westerville, 43 F.3d 1472 (6th Cir. 1994)
Idaho v. Barney, 448 P.2d 195 (1968),
Illinois v. White, 506 NE2d 1284 (Ill. 1987),
In re Opinion of the Justices, 324 A.2d 211 (Del. 1974),
Janus v. AFSCME, 585 U.S. ___ (2018)
KRLPAC v. Terry 108 F.3d 637 (6th Cir. 1997),
Louisiana v. Fulton, 3.37 So.2d 866 (La. 1976),
Louisiana. v. Moses, 655 So. 2d 779 (La. Ct. App. 1995),
Majors v Abell, 317 F.3d 719 (7th Cir. 2003), 792 N.E.2d 22 (Ind. 2003), 361 F.3d 349, 361 F.3d 349, 358. (7th Cir. 2004),
Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. ___ (2018)
McConnell v. FEC, 540 U.S. 93 (2003)
McIntyre, Estate of, v. Ohio Elections Comm’n., 514 U.S. 334 (1995)
Morefield v. Moore, 540 S.W.2d 873, 874-75 (Ky. 1976),
N. Dakota v. N.D. Ed. Assoc., 262 N.W.2d 731,
NAACP v Alabama ex rel. Patterson,
National Organization for Marriage v McKee, 649 F.3d 34 (1st Cir. 2011),
National Institute of Family & Life Advocates v. Becerra, 138 S. Ct. 2361 (2018)
New York v. Duryea, 351 NYS2d 978 (1974),
Norman v Reed. 502 U.S. 279 (1992)
Ogden v. Marendt, 264 F.Supp. 2d 785 (S.D. Ind. 2003) (S.D. Ind 2004),
Opinion of the Justices, 306 A.2d 18 (Maine 1973),
People v Barney, 448 P.2d 195 (1968), 92 Idaho 581.
People v. Bongiorni, 205 Cal. App. 2d Supp. 856 (Sup. Ct. 1962),
People v. Drake (1979) 97 Cal.App.3d Supp. 32, 159 Cal.Rptr. 161,
People v. Duryea, 351 N.Y.S.2d 978 (N.Y. Sup. Ct. 1974).
People v. White, 506 N.E.2d 1284, (I11. 1987),
Printing Industries of the Gulf Coast v. Hill, 382 F.Supp. 8011 (S.D.Tx 1974), 42 L.Ed.26 33 dismissed as moot,
Public Citizen v. FEC, (11th cir. 2001), 99-14823.
Reed v. Town of Gilbert, 576 U.S. 155 (2015),
Reno v ACLU, 521 US 844 (1997)
Riley v. Federation of the Blind, 487 U.S. 781 (1998),
Roe v Wade, 410 U.S. 113 (1973)
Schuster v. Imperial County Mun. Ct., 167 Cal. Rptr. 447 (Cal. Ct. App. 1980), cert. denied, 450 U.S. 1042,
Seymour v. Elections Enf. Comm’n (Con. 2000)
Shelton v. Tucker, 364 U.S. 479 (1960)
ShrinkMissouri v. Maupin, 892 F. Supp. 1246 (E.D. Mo. 1995), aff'd, 71 F.3d 1422 (8th Cir. 1995),
Smithers v Fla. Elections, http://www.fec.state.fl.us/decisions/Smithers96-85.PDF,
State v. Acey, 633 S.W.2d 306 (Tenn. 1982),
State v. Burgess, 543 So. 2d 1332 (La. 1989),
State v. Green Mountain Future, 2013 Vt. 87 (Vt. 2013)
State v. North Dakota Educ. Ass'n, 262 N.W.2d 731, 736 (N.D. 1978),
State v. Petersilie, 334 N.C. 169, 432 S.E.2d 832 (1993),
Stewart v Taylor, 953 F. Supp. 1047 (S.D. Ind. 1997),
Sweezy v. New Hampshire, 354 U.S. 234 (1957)
Talley v California, 362 U.S. 60 (1960)
Tattered Cover v Thornton, 44 P.3d 1044 (2002),
Texas v. Doe, 61 S. W. 3d 99, (Tx. Cr.App. 5/14/2003),
Tornillo v. Miami Herald, 418 U.S. 241 (1974)
Valeo, Buckley v., 424 U.S. 1 (1976)
Washington ex rel Public Disclosure v. 119 Vote No!, 957 P.2d 691 (1998),
Watchtower v. Village of Stratton, 536 U.S. 150 (2002),
West Virginians for Life, Inc. v. Smith, 919 F. Supp. 954 (S.D. W. Va. 1996),
Wilkinson v Jones 876 F.Supp (W.D.Ky 1995),
Wilson v Stocker, 819 F.2d 943 (10th Cir. 1987),
Wooley v Maynard, 430 U.S. 705 (1977),
Worley v. Fla. Secretary of State, 717 F.3d 1238 (11th Cir. 2013),
Yes to Life PAC v. Webster, 74 F.Supp.2d 37 (D.Me. 1999), 84 F. Supp. 2d 150 (D. Me. 2000).
Zwickler v. Koota, 290 F. Supp. 244 (E. D. N. Y. 1968), vacated on other grounds (mootness) sub nom. Golden v. Zwickler, 394 U.S. 103 (1969),
Other Authorities:
First Amendment
Supreme Court Rule 37.6,
https://en.wikipedia.org/wiki/Doug_Guetzloe
Martin Shaeffer,
Meiklejohn, Alexander (1872 – 1964)
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Interest of the Amicus Curiae
Robbin Stewart, the amicus here, was the successful plaintiff in Stewart v Taylor, 953 F. Supp. 1047 (S.D. Ind. 1997), which found Indiana's disclaimer statute unconstitutional. Elections officials had confiscated his sign that read "Robbin Stewart for Township Board - Vote Tuesday". The court held "Stewart contends that this case is governed by McIntyre. Stewart is correct."
The Indiana legislature then repassed the statute, with irrelevant changes. Stewart was lead counsel in Majors v Abell, 317 F.3d 719 (7th Cir. 2003), 792 N.E.2d 22 (Ind. 2003), 361 F.3d 349 (7th Cir. 2004.) in which Judge Posner upheld the new statute in light of indeterminacy caused by McConnell v FEC. Judge Easterbrook issued a dubitante opinion, 361 F.3d 349, 358, pointing out that four controlling Supreme Court precedents side with Majors. Majors has been cited at least 64 times.
Stewart was cocounsel in Anonymous v Delaware, Civ. No. 17453 (Del. Ch. May. 10, 2000), in which the Court of Chancery dismissed the case on the grounds that the disclaimer statute was so obviously unconstitutional per McIntyre that there was no genuine controversy. However, post-Citizens United, Delaware is now enforcing a disclaimer statute, and the state's Attorney General has refused to issue an Attorney General Opinion in light of cases such as Janus and Becerra. Stewart has also filed comments with the FEC as to their disclaimer regulations.
Stewart has participated in distributing campaign literature in a variety of campaigns since 1970, has held appointed public office in four states, has won primaries and lost general elections, and blogs about election law at http://ballots.blogspot.com, where he engages in express advocacy without disclaimers. He has spent over $1000 on signage. His speech is being chilled in Indiana, Rhode Island, Delaware, and elsewhere.
He has filed amicus briefs in several disclaimer cases. One such brief helped get charges dropped against Martin Shaeffer, a Clarkburg WV city council-member who was arrested and jailed for helping publish a political newsletter.
He was an amicus, along with the Privacy Project, in Crawford v Marion County Election Board, after he was prevented from voting because he has a sincere, possibly mistaken, belief that he has a right to vote without showing ID. https://www.brennancenter.org/sites/default/files/legal-work/fa3a4f2682405f5e42_jbm6bhn9i.pdf. His work has focused on ballot access, campaign speech and finance, and privacy issues.
[footnote 1]
Amicus Curiae has obtained written consents to file from Movant and Respondent. Per Supreme Court Rule 37.6, Amicus Curiae states that no counsel for a party authored this brief in whole or in part, and no persons other than Amicus Curiae and its counsel made any monetary contribution intended to fund the preparation and submission of this brief. Amicus Curiae is an individual and has no shareholders or partners.
Summary of the Argument:
1. There is a deep circuit split which the court should resolve.
2. Dicta in Citizens United, part IV, has created confusion among lower courts and legislatures, which the court should clarify.
3. A major purpose of the First Amendment is to enable free elections. Public confidence in elections has been shaken in recent years, when incumbents can rig the elections by chilling the speech of their critics. The case is important, so that the First Circuit's acceptance of censorship of campaign speech can be overturned, and so that the states listed in Justice Scalia's footnote 2 in McIntyre are put on notice that these statutes remain void.
4. This case presents an opportunity to review an erroneous application of the Bonta standard, which may be something the court wants to explore.
Conclusion: The court should grant cert, and rule broadly for plaintiffs, upholding Talley v. California as controlling law, not just narrowly striking down the unconstitutional top 5 donors disclaimer provision.
5. While neither party raises the issue, this case might be resolvable on state grounds. The Rhode Island constitution has a free speech provision. The court could, on its own motion, certify a question to the Rhode Island Supreme Court, as to whether there is any state right which could allow the federal question to be avoided. Most states which have raised the issue of a state constitutional right to anonymous speech have found one.
Argument
There is a deep circuit split which the Court should resolve.
The question presented is:
Rhode Island law requires most issue advocacy groups that mention a candidate or referendum in a communication before an election to register with the State and disclose most donors of at least $1,000. The law also requires that such communications include a disclaimer of the sponsoring group as well as an on-advertisement disclaimer of the group’s top five donors of at least $1,000 during the preceding year. Does Rhode Island’s on-advertisement donor disclaimer law impermissibly compel speech in violation of National Institute of Family & Life Advocates v. Becerra, 138 S. Ct. 2361 (2018)?
This brief is in support of Gaspee Project, et al.’s petition for certiorari, https://www.supremecourt.gov/DocketPDF/21/21-890/204745/20211210150814345_Gaspee%20Cert%20Petition%20v11%20FA.pdf, seeking review of an erroneous decision of the First Circuit which allows Rhode Island to require a disclaimer on certain political literature, including listing the top 5 donors, so that they can be singled out for harassment. The Gaspee Project wants to distribute a voting guide providing information to voters.
In 1960 the court in Talley v California ruled that anonymous speech is constitutionally protected, and therefore an ordinance requiring a disclaimer was void. The opening paragraph of Gaspee Project's complaint cites to Talley and McIntyre, which should have been enough. Talley was one of the civil rights cases, along with NAACP v Alabama ex rel. Patterson, Bates v. Little Rock, Shelton v. Tucker, Gibson v. Florida Legis. Comm'n, Gremillion v. NAACP, Sweezy v. New Hampshire. These cases found a right to privacy and political association. Political association is a modern phrasing of the rights to assembly and petition, textually present in the First Amendment. Both the speech and press clauses are also implicated. Rhode Island seeks a return to the Jim Crow era, and prefers Gobitis over Barnette.
Rhode Island here is making an attack on the right to privacy. There are current controversies as to the full extent of the privacy right discussed in Griswold and Roe v Wade, but all members of the court have agreed there is some First Amendment right to privacy and autonomy that prohibits compelled speech outside of narrow exceptions not at issue here. See Janus, Becerra, and concurrences in Masterpiece Bakeshop.
Regardless of intent, the effect of disclaimer rules has been to severely burden speech, especially that of minorities, such as blacks (Talley), women (McIntyre), political minorities (ACLF), immigrants with relatives in the old country, and sundry other cases less easy to categorize.
Although Talley is the law of the land, states and some lower courts refused to accept it, much as Alabama vigorously resisted NAACP for many years. The NAACP case reached the Supreme Court four times before Alabama finally backed down.
California did not accept Talley, and continued to pass new unconstitutional disclaimer rules each time one was struck down, and still enforces them today. People v. Bongiorni, 205 Cal. App. 2d Supp. 856 (Sup. Ct. 1962), Canon v. Justice Court (1964) 61 Cal.2d 446, 457, 39 Cal.Rptr. 228, 393 P.2d 428, People v. Drake (1979) 97 Cal.App.3d Supp. 32, 159 Cal.Rptr. 161, Schuster v. Imperial County Mun. Ct., 167 Cal. Rptr. 447 (Cal. Ct. App. 1980), cert. denied, 450 U.S. 1042, Griset v. Fair Political Practices Commission, 69 Cal. App. 4th 818, 82 Cal. Rptr.2d 25 (1999), reversed on other grounds, NIFLA v Becerra, 585 U.S. ___ (2018).
Louisiana has a similar history of as soon as one disclaimer statute is struck down, another is enacted, in an ongoing cycle. Louisiana v. Fulton, 3.37 So.2d 866 (La. 1976), State v. Burgess, 543 So. 2d 1332 (1989), Louisiana. v. Moses, 655 So. 2d 779 (La. Ct. App. 1995).
In Kentucky, courts have upheld disclaimer rules four times, defying Talley. Morefield v. Moore, 540 S.W.2d 873, 874-75 (Ky. 1976), Wilkinson v Jones 876 F.Supp (W.D.Ky 1995), KRLPAC v. Terry (6th Cir. 1997), Gable v Patton, (6th Cir. 1998).
In note 2 of his dissent in McIntyre, Justice Scalia cataloged how nearly every state has a disclaimer statute.
What is needed is something like Cooper v Aaron that after 60 years really settles the matter, and lets election officials know that if they continue to violate the rule of Talley they can expect to pay damages. So a narrow ruling just about the 5 top donors is not enough. It is a waste of judicial resources to allow bad actors getting off scot-free for intentional violations of freedom of campaign speech, with substantial harm to the integrity of the election process, and an endless cycle of injunctions and declaratory judgments that fail to deter subsequent violations.
A majority of cases have followed Talley, and later McIntyre v. Ohio Elections Commission, but about 1/3 of the cases have refused to do so, and about 2/3rds of the states still enforce some unconstitutional disclaimer statute. This is unacceptable.
Cases following Talley include:
City of Bogalusa v. May, 212 So.2d 408 (1968), People v. Bongiorni, 205 Cal. App. 2d Supp. 856 (Sup. Ct. 1962), Doe v. Mortham, 708 So.2d 929 (Fla.1998), Griset v. Fair Political Practices Commission, 69 Cal. App. 4th 818, 82 Cal. Rptr.2d 25 (1999), reversed on other grounds, Printing Industries of the Gulf Coast v. Hill, 382 F.Supp. 8011 (S.D.Tx 1974), 42 L.Ed.26 33 dismissed as moot, Idaho v. Barney, 448 P.2d 195 (1968), Louisiana. v. Moses, 655 So. 2d 779 (La. Ct. App. 1995), Lousiana v. Fulton, 3.37 So.2d 866 (La. 1976), New York v. Duryea, 351 NYS2d 978 (1974), In re Opinion of the Justices, 324 A.2d 211 (Del. 1974), Opinion of the Justices, 306 A.2d 18 (Maine 1973) Ogden v. Marendt, 264 F.Supp. 2d 785 (S.D. Ind. 2003) (S.D. Ind 2004), ShrinkMissouri v. Maupin, 892 F. Supp. 1246 (E.D. Mo. 1995), aff'd, 71 F.3d 1422 (8th Cir. 1995), Schuster v. Imperial County Mun. Ct., 167 Cal. Rptr. 447 (Cal. Ct. App. 1980), cert. denied, 450 U.S. 1042. Smithers v Fla. Elections, http://www.fec.state.fl.us/decisions/Smithers96-85.PDF, Texas v. Doe, 61 S. W. 3d 99, (Tx. Cr.App. 5/14/2003), West Virginians for Life, Inc. v. Smith, 919 F. Supp. 954 (S.D. W. Va. 1996), Yes to Life PAC v. Webster, Zwickler v. Koota, 290 F. Supp. 244 (E. D. N. Y. 1968), vacated on other grounds (mootness) sub nom. Golden v. Zwickler, 394 U.S. 103 (1969), Doe v. 2theMart,140 F.Supp.2d 1088, ACLU of Georgia v. Miller, (977 F.Supp. 1228 (N.D.Ga 1997), ACLU v. Reno, 117 S.Ct. 2329 (1997), ALA v. Pataki, 969 F.Supp 160 (1997), Buckley v. American Constitutional Law Foundation, 525 U.S.182 (1999), Cyberspace v. Engler, 55 F.Supp.2d 737 (E.D. Mich 1999), Dennis v. Massachusetts, 329 N.E.2d 706 (Mass. 1975), Ex Parte Harrison, 110 S.W. 709 (Mo 1908) (on state grounds), Illinois v. White, 506 NE2d 1284 (Ill. 1987), McIntyre v. Ohio, 514 U.S. 334 (1995), N.Dakota v. N.D. Ed. Assoc., 262 N.W.2d 731, Washington ex rel Public Disclosure v. 119 Vote No!, 957 P.2d 691 (1998), Riley v. Federation of the Blind, 487 U.S. 781 (1998), Stewart v. Taylor, 953 F.Supp.1047 (S.D.Ind.1997), Texas v. Doe, (Tx. Cr.App. 5/14/2003), Watchtower v. Village of Stratton, 536 U.S. 150 (2002), West Virginians for Life, Inc. v. Smith, 919 F. Supp. 954 (S.D. W. Va. 1996), Wilson v Stocker, 819 F.2d 943, 950 (10th Cir. 1987), Wooley v Maynard, 430 U.S. 705 (1977), Yes to Life PAC v. Webster, 74 F.Supp.2d 37 (D.Me. 1999), 84 F. Supp. 2d 150 (D. Me. 2000).
Cases resisting Talley include:
United States v. Scott, 195 F. Supp. 440, 443 (D.N. D. 1961),
, State v. Acey, 633 S.W.2d 306 (Tenn. 1982), Morefield v. Moore, 540 S.W.2d 873, 874-75 (Ky. 1976), State v. Petersilie, 334 N.C. 169, 432 S.E.2d 832 (1993), Worley v. Fla. Secretary of State, 717 F.3d 1238 (11th Cir. 2013), Majors v Abell, 317 F.3d 719 (7th Cir. 2003), 792 N.E.2d 22 (Ind. 2003), 361 F.3d 349 (7th Cir. 2004), Wilkinson v Jones 876 F.Supp (W.D.Ky 1995), Seymour v @ Election Comm’n. (Con. 2000), State v. Green Mountain Future, 2013 Vt. 87 (Vt. 2013), NOM v McKee, 649 F.3d 34 (1st Cir. 2011), Terry, Gable v Patton, Arkansas v Butler, 983 F. Supp. 1209 (W.D. Ark. 1997). Public Citizen v. FEC (11th Cir.), Bailey v. Maine Commission on Governmental Ethics, 2012 WL 4588564 No. 1:11-CV-00179-NT, (D. Me. Sept. 30, 2012), (see Bailey v. Maine Commission on Governmental Ethics: Another Step Toward the End of Political Privacy, Engage Volume 14, Issue 2 July 2013).
Circuits following Talley include 4th (West Virginians for Life, Inc. v. Smith, 919 F. Supp. 954 (S.D. W. Va. 1996)), 8th (Citizens PAC Political Action Committee v. Davidson, 236 F. 3d 1174 (8th Cir. 2000)), 9th (ACLU of Nevada v Heller 378 F.3d 979 (9th Cir. 2004), but see A–1 A–Lectrician, Inc. v. Snipes), and 10th (Wilson v Stocker, 819 F.2d 943 (10th Cir. 1987)).
Circuits improperly ruling against Talley include the First, Sixth, Seventh, and Eleventh, in the instant case, KYRTL v. Terry, Gable v Patton, Majors v Abell, and Public Citizen, Worley v Florida.
Additionally, at least 12 states have found a right to anonymous speech in their state constitution, while two states decided the other way. The states include CA, CO, DE, ID, IL, LA, OH, MA, ME, MO, ND, and NY.
Schuster v. Imperial County Municipal Court, 167 Cal. Rptr. 447 (Cal. Ct. App. 1980), Tattered Cover v Thornton, 44 P.3d 1044 (2002), In re Opinion of the Justices, 324 A.2d 211 (Del. 1974), People v Barney, State v. Burgess, 543 So.2d 1332 (La. 1989) People v. White, 506 N.E.2d 1284, (I11. 1987), Commonwealth v. Dennis, 329 N.E.2d 706 (Mass. 1975), Opinion of the Justices, 306 A.2d 18 (Me. 1973), Ex Parte. Harrison, 212 Mo. 88 (M0 1908), State v. North Dakota Educ. Ass'n, 262 N.W.2d 731, 736 (N.D. 1978), People v. Duryea, 351 N.Y.S.2d 978 (N.Y. Sup. Ct. 1974). Ohio’s lockstep doctrine accepts McIntyre as controlling the state constitution as well. However, Ohio still enforces its disclaimer statute. States ruling the other way include NC, TN, Peterslie, State v Acey.
This is a deep split. The court has made at least two previous attempts to resolve the split, in McIntyre, and Buckley v. ACLF. The question presented in McIntyre was whether there was an elections exception to Talley. The court found none. Ohio had used Valeo's permissive "exacting scrutiny" standard. While retaining the label "exacting scrutiny", McIntyre applied a strict form of scrutiny, requiring narrow tailing and an overriding state interest. Justice Scalia, dissenting, called this a "kiss of death" standard. While Margaret McIntyre has been described as a lone pamphleteer, she was actually a spokesperson for a larger group of about 60 people, as described in Hansen v Westerville, 43 F.3d 1472 (6th Cir 1994).
Rhode Island here misreads McIntyre as only creating an exception for little ladies with home computers who spend under $1000, and misreads McConnell's electioneering communications discussion to allow disclaimers for issue speech when targeted and close to the election, thinking that this would satisfy the "In for a calf is not in for a cow" concurrence in McIntyre. As discussed below, Rhode Island misreads Citizens United as having implicitly repealed Talley, McIntyre, ACLF, Watchtower, etc. The statutes in Talley and McIntyre were broad, while Rhode Island’s is more narrow, but that is not why they were found unconstitutional. Americans have a right to speak about elections, unbound by compelled government speech.
Buckley v ACLF carefully distinguished disclosure, which got permissive scrutiny under Valeo, and disclaimers, which get stricter scrutiny under McIntyre. Yet courts continued to rule adversely at times, and then the split got wider after McConnell and Citizens United rejected as-applied issue advocacy arguments brought by James Bopp. Mr. Bopp favors disclaimer statutes, as long as they are limited to express advocacy, so his arguments have been indirect.
There is a deep split among lower courts, both state and federal, as to whether Talley and McIntyre remain good law and prohibit disclaimer rules. The Court should grant cert. to resolve this issue.
Dicta in Citizens United, part IV, has created confusion among lower courts and legislatures, which the court should clarify.
Citizens United was a case that held that strict scrutiny applies to political speech, overturned the anomalous Austin ruling, and greatly expanded constitutional protection of election speech. But states have seized on certain loose language about disclaimers, out of context, and some courts have followed, as the First Circuit did below, reasoning that Citizens implicitly overruled not just Austin, but Talley, Mcintyre, ACLF, Wooley, maybe even Barnette. This is error, for the following reasons.
The language in Citizens about disclaimers is dicta, not holding.
Citizens was a case about corporate speech, and does not authorize disclaimer rules for individuals, as the statutes of Rhode Island, Maine, and Vermont attempt to do. In Citizens, disclaimers were a less restrictive alternative to a complete ban. Rhode Island has no such ban, so the Citizens discussion does not apply.
If Citizens had intended to overturn McIntyre et al., it would have explained why and how it was doing so, as it did in overruling Austin. If Citizens had overruled McIntyre, it would have itself been overruled by later cases such as Reed v. Town of Gilbert, AID v Open Society, Janus, and NIFLA v Becerra.
Nonetheless, the dicta in Citizens has confused lower courts and legislatures, and the court should take this case to once again clearly establish that Talley and McIntyre remain good law, and states cannot compel the content of political ads.
Perhaps in some future case, the Court may allow a disclaimer rule limited to speech by corporations. There are some sound policy reasons to do so, and Citizens hints at such a future case. But Citizens did not do so, and the Rhode Island statutes are not limited to corporate speech.
In Citizens, echoing a similar failed strategy in McConnell v. FEC, plaintiffs argued that their speech was not express advocacy, and so the disclaimer and disclosure rules did not apply. The court disagreed, in Part IV, and found that the speech at issue was at least the functional equivalent of express advocacy, so its attempted loophole was closed. This was the holding. The court then went on in dicta to praise disclaimers and disclosure, lumping them together, as less restrictive means to advance the state interests. It is these statements that have been taken out of context. Plaintiffs had not argued that the disclaimer rule was facially void, only that they had found an exception. The current case does directly challenge the unconstitutional statute, and thus makes a good vehicle for the court to clarify its remarks in Citizens United. Perhaps in this case the Court will decide to overrule McIntyre, Talley, Barnette, Wooley, and Tornillo. If so it should do so explicitly, not sotto voce.
A major purpose of the First Amendment is to enable free elections.
Public confidence in elections has been shaken in recent years, when incumbents can rig elections by chilling the speech of their critics. The case is important, so that the First Circuit's acceptance of censorship of campaign speech can be overturned, and so that the states listed in Justice Scalia's footnote 2 in McIntyre are put on notice that these statutes remain void.
The United States is an experiment in a libertarian constitutional democratic republic, in which the people are sovereign, instead of subjects of a monarch. The people govern themselves by choosing representatives via free and open elections. In order to do so, there must be free speech so that issues and candidates can be fully discussed.
This is the Meiklejohn theory of the purpose of the First Amendment; that it makes democracy possible. It may be nice to have nude dancing and
art and literature and liquor prices, but a core function of the First Amendment is to protect free and open elections. Here, the usual presumption of constitutionality is reversed, and censorship of political speech is suspect, presumptively invalid, subject to close, exacting, strict, kiss of death, scrutiny. What Rhode Island is doing here, perhaps with the best of intentions, criminalizes core political speech, and also imposes civil penalties without a mens rea element. Both of these severely chill speech, and detract from the integrity of the election process. Talley reversed a $10 fine. McIntyre reversed a $100 fine. The consequences in Rhode Island are more dire. And, as plaintiffs have argued, the 5 donor requirement goes well beyond the mere attribution requirements found invalid in Talley and McIntyre. When free speech is taken away, we are left with Potemkin elections, which retain the form but not the substance. The courts, and this Court, have an important role in safeguarding elections. It is not surprising that the Rhode Island legislature seeks to deter criticism, or here, accurate feedback, about the Rhode Island legislature. In such cases, no deference is due.
“At the Gaspee Project, it is our duty to hold accountable lawmakers who ignore your best interests.” http://gaspeeproject.org/about.
The right to petition allows citizens to express their ideas, hopes, and concerns to their government and their elected representatives, whereas the right to speak fosters the public exchange of ideas that is integral to deliberative democracy as well as to the whole realm of ideas and human affairs. Borough of Duryea v. Guarnieri, 564 U.S. 379, 388 (2011).
Actual jailings for disclaimer violations are rare, but not unknown. Harrison, Dennis, Schaeffer, and Geutzloe are among those who have been jailed. Ex Parte Harrison (Mo 1908), Commonwealth v Dennis (MA. 1975),
http://shaeffercase.blogspot.com, https://en.wikipedia.org/wiki/Doug_Guetzloe.
Currently before congress is an election "reform" bill which would extend the FEC's unconstitutional disclaimer requirements to the internet, what Reno v ACLU called burning the global village to roast the pig. This court should take this case to better inform congress, the FEC, legislators, and lower courts, that there are constitutional limits to how election speech can be chilled.
This would be the Court's first opportunity to explore the new Bonta standard.
In this case, the First Circuit erroneously applied the new Bonta standard, instead of McIntyre's kiss of death standard. In doing so, it treated Bonta as as permissive as Valeo, essentially treating Bonta as an indeterminate "personal preferences of the judges" standard. If this case is allowed to stand, it will not be the only lower court to rule this way. This may be the first case to apply Bonta. The court could choose to take this case as a chance to further explore the Bonta standard.
State Grounds
5. While neither party raises the issue, this case might be resolvable on state grounds. The Rhode Island constitution has a free speech provision. The court could, on its own motion, certify a question to the Rhode Island Supreme Court, as to whether there is any state right which could allow the federal question to be avoided. This would be a case of first impression, and the Rhode Island court would have no obligation to respond, but might choose to do so. Most states which have raised the issue of a state constitutional right to anonymous speech have found one.
While the issue of whether there is a state constitutional right to anonymous speech remains unresolved, the state’s interests, whether legitimate, compelling, overriding, or narrowly tailored, are diminished. So there is an implicit state claim inside the federal claim.
Conclusion: The court should grant cert., and rule broadly for plaintiffs, upholding Talley v. California, not just narrowly striking down the unconstitutional top 5 donors disclaimer provision. Alternatively, if there are six votes in support, it could summarily reverse, perhaps with an order for reconsideration in light of NIFLA v Becerra. Certification to the Rhode Island Supreme Court is another option.
(word count). @ 3379 of 4386
Respectfully submitted,
[Closing Signature Block with clearly identified counsel of record]
FEBRUARY 4 2022
