These co-amici indicate my interests in privacy and the bill of rights.
summary of argument
1. the rule is void under the state constitution. therefore, there is no legitimate state interest for either the bonta or valeo tests.
2. the rule is strict sctrutiny. 303 creative controls.
3. citizens united is inapplicable.
argument
1. the rule is void under the state constitution. therefore, there is no legitimate state interest for either the bonta or valeo tests.
history:
naacp v alabama bates v little rock talley v california
since then, 2/3 of cases nationally have followed talley.
bongiorni, drake, schuster, canon city, griset, NIFLA,
People v. Drake (1979) 97 Cal.App.3d Supp. 32, 159 Cal.Rptr. 161,
schuster is controlling precedent under the state constitution.
also, the state constitution has an explicit right of privacy, and there may be relevant case law under that section.
13 states have found a right to anonymous free speech under their state constitutions, often in disclaimer cases. table 3 is a list of 20 cases. these cases are from ca, co, de, fl, id, la, ma, me, mo, nd ny (or)(wa). While not controlling they are persuasive authority.
2. the rule is strict scrutiny. 303 creative controls.
The petition for rehearing en banc
3. citizens united is inapplicable.
conclusion
major premise
stopped here 2:10 pm 10/1/23. stopped again at 2:24, just time enough to go to work. 1:20 a m 10/2/23 back at it after work.
The
right of citizens to inquire, to hear, to speak, and to use
information to reach consensus is a precondition to
enlightened self-government and a necessary means to
protect it. The First Amendment “‘has its fullest and most
urgent application’ to speech uttered during a campaign
for political office.” Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 223 (1989) (quoting
Monitor Patriot Co. v. Roy, 401 U. S. 265, 272 (1971)); see
Buckley, supra, at 14 (“Discussion of public issues and
debate on the qualifications of candidates are integral to
the operation of the system of government established by
our Constitution”).
For these reasons, political speech must prevail against
laws that would suppress it, whether by design or inadvertence. Laws that burden political speech are “subject to
strict scrutiny,” which requires the Government to prove
that the restriction “furthers a compelling interest and is
narrowly tailored to achieve that interest.” citizens united.
Premised on mistrust of governmental power, the First
Amendment stands against attempts to disfavor certain
subjects or viewpoints. See, e.g., United States v. Playboy
Entertainment Group, Inc., 529 U. S. 803, 813 (2000)
(striking down content-based restriction).
Speech restrictions based on the identity of the speaker
are all too often simply a means to control content.
By taking the right to speak from some and
giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to
establish worth, standing, and respect for the speaker’s
voice.
The Government may not by these means deprive
the public of the right and privilege to determine for itself
what speech and speakers are worthy of consideration.
The First Amendment protects speech and speaker, and
the ideas that flow from each.
We find no basis for the proposition that, in the context
of political speech, the Government may impose restrictions on certain disfavored speakers. Both history and
logic lead us to this conclusion.
Miami
Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974);
“Under our Constitution it is We The People who
are sovereign. The people have the final say. The legislators are their spokesmen. The people determine
through their votes the destiny of the nation. It is
therefore important—vitally important—that all
channels of communications be open to them during
every election, that no point of view be restrained or
barred, and that the people have access to the views of
every group in the community.”
See McIntyre v. Ohio Elections
Comm’n, 514 U. S. 334, 360–361 (1995) (THOMAS, J.,
concurring in judgment)
part iv
Although both provisions were facially upheld, the
Court acknowledged that as-applied challenges would be
available if a group could show a “‘reasonable probability’”
that disclosure of its contributors’ names “‘will subject
them to threats, harassment, or reprisals from either
Government officials or private parties.’” Id., at 198
(quoting Buckley, supra, at 74).
Citizens United argues that the disclaimer requirements in §311 are unconstitutional as applied to its ads.
It contends that the governmental interest in providing
information to the electorate does not justify requiring
disclaimers for any commercial advertisements, including
the ones at issue here. We disagree.
The
disclaimers required by §311 “provid[e] the electorate with
information,” McConnell, supra, at 196, and “insure that
the voters are fully informed” about the person or group
Cite as: 558 U. S. ____ (2010) 53
Opinion of the Court
who is speaking, Buckley
At the very least, the
disclaimers avoid confusion by making clear that the ads
are not funded by a candidate or political party
As a final point, Citizens United claims that, in any
event, the disclosure requirements in §201 must be confined to speech that is the functional equivalent of express
advocacy. We reject this contention. 2:02 am pause. continuing.
google search california right to privacy
“All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy” Cal. Const. Art. I, § 1.
California’s right to privacy is wider than its federal counterpart It is also self-executing, hence it confers a judicial right of action on all Californians[3].
The California right to privacy was enacted by ballot measure in November 1972. Just like Proposition 24, as an initiative, the California Constitutional Right to privacy is to be interpreted and applied in a manner consistent with the intent of the voters[4].
Federal courts in California have held that there is a right to privacy that can be raised in response to discovery requests. Johnson by Johnson v. Thompson, 971 F.2d 1487, 1497 (10th Cir.1992); DeMasi v. Weiss, 669 F.2d 114, 119-120 (3rd Cir.1982). The right to privacy in, “California primarily derives from the California Constitution's declaration that individuals have an inalienable right to privacy. Art. I § 1.” Davis v. Leal (E.D. Cal. 1999) 43 F.Supp.2d 1102, 1110–11.
This right to privacy is not the same as a privilege and is therefore, “not an absolute bar to discovery.” Allen v. Woodford (E.D. Cal., Jan. 30, 2007, No. CVF051104OWWLJO) 2007 WL 309485, at *6–7. By contrast, courts must balance the need for information against the claimed right to privacy. Ragge v. MCA/Universal Studios (C.D.Ca.1995) 165 F.R.D. 601, 604 (right of privacy may be invaded for litigation purposes). In other words, the right to privacy is not absolute and the courts will engage in a balancing test weighing the right to privacy against the right to reasonable discovery.
Under federal law, the right to privacy involves a balancing of interests. “When the constitutional right of privacy is involved, ‘the party seeking discovery must demonstrate a compelling need for discovery, and that compelling need must be so strong as to outweigh the privacy right when these two competing interests are carefully balanced.’ [Citations.]” Artis v. Deere & Co. (N.D. Cal. 2011) 276 F.R.D. 348, 352.
Fults v. Superior Court In and For Sonoma County (1979) 88 Cal.App.3d, 899, 152 Cal.Rptr. 210; s
Gonzalez v. Superior Court, 33 Cal.App.4th 1539, 1550, 39 Cal.Rptr.2d 896, 902 (1995). Only then would any burden shift to the requesting party. Davis v. Leal (E.D. Cal. 1999) 43 F.Supp.2d 1102, 1110–11.
Enforcement: Private right of action. Hill v. National Collegiate Athletic Assn., 865 P.2d 633, 644, 657 (Cal. 1994), requiring the plaintiff to establish “(1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy.”
The court in Adamson did not abandon the ballot argument, however. It found support for a "right to live with whomever one wishes
or, at least, to live in an alternate family with persons not related by
blood, marriage, or adoption" in the following language contained in
the ballot argument:5 8 4
"The right of privacy is the right to be left alone. It is a fundamental and
compelling interest. It protects our homes, our families, our thoughts, our
emotions, our expressions, our personalities, our freedom of communion and
our freedom to associate with the people we choose."
Committee to Defend Reproductive Rights v. Myers,591
City of Santa Barbara v. Adamson, 610 P.2d 436 (Cal. 1980).
Chancey v. Ill. State Bd.
of Elections
Arizona Free Enter. Club's Freedom Club PAC
v. Bennett, 564 U.S. 721, 735 (2011)
For these reasons, most laws that burden political speech are subject to rigorous judicial review. “Laws that burden political speech are ‘subject to strict scrutiny,’ which requires the Government to prove that the restriction ‘furthers a compelling interest and is narrowly tailored to achieve that interest.’ ” Id. (quoting Wis. Right to Life, 551 U.S. at 464, 127 S.Ct. 2652). barland
https://casetext.com/case/ariz-free-enter-clubs-freedom-club-pac-v-bennett-1#p2817
Discussion of public issues and debate on the qualifications of candidates are integral to the operation" of our system of government. Buckley v. Valeo, 424 U.S. 1, 14, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam ). As a result, the First Amendment " 'has its fullest and most urgent application' to speech uttered during a campaign for political office." Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214, 223, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989) (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272, 91 S.Ct. 621, 28 L.Ed.2d 35 (1971) ). "Laws that burden political speech are" accordingly "subject to strict scrutiny, which requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest." Citizens United v. Federal Election Comm'n, 558 U.S. 310, ––––, 130 S.Ct. 876, 898, 175 L.Ed.2d 753 (2010) (internal quotation marks omitted); see Federal Election Comm'n v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 256, 107 S.Ct. 616, 93 L.Ed.2d 539 (1986).
And forcing that choice—trigger matching funds, change your message, or do not speak—certainly contravenes "the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message." Hurley v. Irish–American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 573, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995) ; cf. Citizens United, supra, at ––––, 130 S.Ct., at 898 ("the First Amendment stands against attempts to disfavor certain subjects or viewpoints"); Federal Election Comm'n v. Wisconsin Right to Life, Inc., 551 U.S. 449, 477, n. 9, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007) (opinion of ROBERTS, C.J.)
That means that the law here—like the one in Davis —must be justified by a compelling state interest.
This sort of "beggar thy neighbor" approach to free speech—"restrict[ing] the speech of some elements of our society in order to enhance the relative voice of others"—is "wholly foreign to the First Amendment."
We have rejected government efforts to increase the speech of some at the expense of others outside the campaign finance context. In Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 244, 258, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974), we held unconstitutional a Florida law that required any newspaper assailing a political candidate's character to allow that candidate to print a reply.
But in a democracy, campaigning for office is not a game. It is a critically important form of speech. The First Amendment embodies our choice as a Nation that, when it comes to such speech, the guiding principle is freedom—the "unfettered interchange of ideas"—not whatever the State may view as fair.
Here the State's chosen method is unduly burdensome and not sufficiently justified to survive First Amendment scrutiny.
The dissent criticizes the Court for standing in the way of what the people of Arizona want. Post, at 2829 – 2830, 2845 – 2846. But the whole point of the First Amendment is to protect speakers against unjustified government restrictions on speech, even when those restrictions reflect the will of the majority. When it comes to protected speech, the speaker is sovereign. id.
https://casetext.com/case/ariz-free-enter-clubs-freedom-club-pac-v-bennett-1#p2817
10/2/23 8 04 pm
next up table of cases
plan: spend about an hour roughing out a table of cases
no page numbers yet.
bonta
san franciscans v chiu No on E v. Chiu, No. 22-15824.
state and federal constitutions
elrod v burns 1976
stewart v taylor cite s d ind. 1997
buckley v valeo 1976
303 creative
citizens united
naacp v alabama
McIntyre
Barnette
Tornillo
Riley
Wooley.
brush and nib v phoenix
reed v town of gilbert
Roth v. United States, 354 U. S. 476, 484 (1957)
Winters v. New York, 333 U. S. 507, 510 (1948)
Mills v. Alabama, 384 U. S. 214, 218 (1966)
New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964)
Monitor Patriot Co. v. Roy, 401 U. S. 265, 272 (1971)
NAACP v. Alabama, 357 U. S. 449, 460 (1958)
Kusper v. Pontikes, 414 U. S. 51, 56, 57 (1973),
Cousins v. Wigoda, 419 U. S. 477, 487 (1975)
O'Brien
Sweezy v. New Hampshire, 354 U. S. 234, 250 (1957) (plurality opinion).
NAACP v. Button, 371 U. S. 415, 431 (1963)
E. g., Gibson v. Florida Legislative Comm., 372 U. S. 539 (1963);
Shelton v. Tucker, 364 U. S. 479 (1960);
Bates v. Little Rock, 361 U. S. 516 (1960);
Communist Party v. Subversive Activities Control Bd., 367 U. S. 1, 97 (1961)
Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 564 U.S. 721, 745 (2011)
Davis v. Federal Election Comm’n, 554 U.S. 724, 738–740 (2008)
McCutcheon, 572 U. S., at 210.
smith v helzer.
talley
3. mcIntyre
4. aclf
5. tornillo
6. riley
7. wooley
8. janus
9. NIFLA
10. 303 Creative.
Brown v. Socialist Workers '74 Campaign Comm. (Ohio), 459 U.S. 87 (1982)
federal-election-commission-v-cruz
national-institute-family-and-life-advocates-v-becerra
People v. Drake (1979) 97 Cal.App.3d Supp. 32, 159 Cal.Rptr. 161,
quitting for now 8 56 pm 10/2/23
starting 7:50 am monday 10/9/23.
begin: review above text.
then next up table of cases
plan: spend about an hour roughing out a table of cases
8:25 am knocked that out, first draft of table of authorities alphabetized. 0.5 hours. 8 37 updated interest of amicus.