Gaspee project v mederoz notes for amivus
Reasons for cert Circuit split. After talley footnote two After mcintyre After aclf Citizens caused confusion. First case for bonta. Ct. case. Riley in kenticky v terry? Gable v patton Worely Public citizen 11th circuit Majors v abell State v acey Wilkinson? Green mountain futures N carolina peterslie merits. Talley mcintyre aclf watchtower Barnette Wooley tornillo riley Aid v open society janus nifla v beccera 1 sentence from each.
Bailey v. Maine Commission on Governmental Ethics, 2012 WL 4588564 No. 1:11-CV-00179-NT, (D. Me. Sept. 30, 2012): http://www.gpo.gov/fdsys/pkg/USCOURTS-med-1_11-cv-00179/pdf/USCOURTS-med-1_11-cv-00179-3.pdf contact@ballsandstrikes.org "We have acknowledged that drivers who display a State’s selected license plate designs convey the messages communicated through those designs. See Wooley v. Maynard, 430 U. S. 705 , n. 15, 715 (1977) (observing that a vehicle “is readily associated with its operator” and that drivers displaying license plates “use their private property as a ‘mobile billboard’ for the State’s ideological message”). And we have recognized that the First Amendment stringently limits a State’s authority to compel a private party to express a view with which the private party disagrees. See id., at 715; Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 573 (1995) ; West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943) . But here, compelled private speech is not at issue." walker v texas.
interest of amicus. stewart v taylor. majors v abell, anonymous v delaware, fec comments. privacy project amicus in crawford v marion county.
summary of argument the case presents two issues, which the court below erred by treating as a single issue. 1. under the bonta standard, do plaintiffs present a triable issue on their disclosure claim? 2. are talley and mcintyre still good law, such that the disclaimer rule is facially invalid? this brief is focused on the second question. the court should take the case on the second issue, regardless of whether or not it takes the first issue. the case is important as the first case applying the new standard of review set out in AIP v Bonta. the case is important because it widens the circuit split that has existed since shortly after Talley v California, narrowed but did not end after McIntyre v. Ohio, widened again after Citizens United, and has not been resolved by cases such as Janus, NIFLA v Becarra, Masterpiece, or Bonta.
the case is important because voting rights are preservative of all other rights, and to be meaningful voting must be informed by a free flow of election speech, such as the voting guide at issue here. what is needed is a ruling like cooper v aaron, so that manuel talley's great grandchildren can finally enjoy the benifits of the ruling in his case. 60 plus years is too long to wait. the case is important because it can provide guidance to the FEC and congress, which are currently illegally refusing to follow Talley and McIntyre.
In Buckley v. ACLF, all 9 members of the court held that McIntyre is good law, and disclaimer regulations such as name badges for petitioners are unlawful, while upholding disclosure under the permissive Valeo standard. But in dicta in Citizens United, 8 members of the court lumped disclaimers in with disclosure, in discussing why an as applied challenge had failed for other reasons. In so doing, the court sowed confusion and discord, muddying the waters, so that public officials acting in bad faith can argue the rights established by Talley and McIntyre were not clearly established, and thus evade liability for their wrongdoing. At the moment, whether a citizen can be jailed for putting a "Vote for Smith" sign in their yard or on their home page depends on which state they live in and which circuit that state is in. National uniformity would be a better policy, and is required by the First Amendment.
Wednesday, December 29, 2021
friday plan
call st louis call baltimore
call mom and tommy
put away groceries clean car
write motion re bmv.
call missouri and kansas
work on brief
check email
make comic
maybe check mailbox.
i'm forgetting something. wednesday:
lawyer zoom
did 1/2 page of the brief, a start
washed car, washed dishes. washed self.
took out trash
put $1200 in bank, paid $200 on electric bill.
talked to tommy.
it felt productive but now it doesn't look like so much.
still to do:
sort mail
brief
mice killed today 1, month 5. thursday: stopped by church, no dinners due to covid. cleaned car slightly. good set tonight. picked out two boxes of food but sheriifs van so i will go back later. got a parking ticket. slept late and did not get much of anything done.
call st louis call baltimore
call mom and tommy
put away groceries clean car
write motion re bmv.
call missouri and kansas
work on brief
check email
make comic
maybe check mailbox.
i'm forgetting something. wednesday:
lawyer zoom
did 1/2 page of the brief, a start
washed car, washed dishes. washed self.
took out trash
put $1200 in bank, paid $200 on electric bill.
talked to tommy.
it felt productive but now it doesn't look like so much.
still to do:
sort mail
brief
mice killed today 1, month 5. thursday: stopped by church, no dinners due to covid. cleaned car slightly. good set tonight. picked out two boxes of food but sheriifs van so i will go back later. got a parking ticket. slept late and did not get much of anything done.
2:30 wednesday 12/29. 3:20. taking a break to go to the bank.
COVER INFORMATION
> Docket number 21-890
>The party names as they appear on the docket
> State whether the case is “On Petition” (at the Petition stage) or “on Writ” (at the Merits stage)
> The Lower Court as it appears on the docket
> The Name of Your Amicus (or Amici) [See below]
> The Party Supported [See below]
> The address block or blocks selecting only ONE counsel of record
@
21-890
Gaspee Project et al. v Mederos et al.
On Petition from First Circuit Court of Appeals
Amicus Curiae Brief of Robbin Stewart in Support of Petitioners
*Mark Small info as counsel of record
Table of Contents
Table of Authorities
Interests of the Amicus Curiae (with required footnote)
Argument 1
Argument 2
Argument 3
Argument 4
Conclusion
Closing Signature Block with clearly identified counsel of record
Table of Contents
Table of cases
I. There is a deep split in lower courts.
II. Citizens United Part IV created confusion.
III. The case is important because free elections require free speech.
IV. This would be the Court's first opportunity to explore the new Bonta standard.
Conclusion
Table of Authorities (still needs table of authorities)
Interests 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 offcials had confiscated his sign that read "Robbin Stewart for Township Board - Vote Tuesday". The district 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 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 sided with Majors. The Supreme Court clerk properly denied a petition for certiorari because it had been filed a day late.
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. He has 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 intends to continue to be politically active.
He has filed amicus briefs in several disclaimer cases. One such brief helped get charges dropped against Martin Shaeffer, a Clarkburg WV city councilmember 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. 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.
Argument 1 There is a deep circuit split which the court should resolve.
Argument 2 Dicta in Citizens United, part IV, has created confusion among lower courts and legislatures, which the court should clarify.
Argument 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.
Argument 4: This case presents an opporunity to review an erroneous appication 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, not just narrowly striking down the unconstitutional top 5 donors disclaimer provision.
Table of Cases
Argument 1 There is a deep circuit split which the Court should resolve.
In 1960 the court in Talley v California ruled that anonymous speech is constitutionally protected, and therefor 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 here 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 I think all members of the court agree 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.
Regardless of intent, the effect of disclaimer rules has been to severely burden the speech 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. For example, in Anonymous v. Delaware, the until-now anonymous plaintiff did not want to risk interfering with another pending case, later settled for around a million dollars. Huminski v. Corsones, 396 F.3d 53 (2d Cir. 2004), Balancing Courtroom Safety and Free Expression: Huminski v. Corsones, Robert M. Howard,The Justice System Journal, Vol. 27, No. 1 (2006).
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 unconstitutional disclaimer rules, 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. @ add NIFLA v Becerra. Louisiana has a similar history of as soon as one disclaimer statute is struck down, another is enacted, in an ongoing cycle. Lousiana 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. (@ cite terry, gable v patton, wilkinson) 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. The split began in 1961, and continues in 2022. A majority of cases have followed Talley, and later McIntyre v. Ohil Elections Commission, but about 1/3 of the cases have refused to do so, and about 2/3rds of the states still enforce some disclaimer statute. 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), Vermont Right to Life v. Sorrell, 221 F.3d 376, 392 (2d Cir. 2000) [?], 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), Griset v CalFPPC (1999), reversed on other grounds, Illinois v. White, 506 NE2d 1284 (Ill. 1987), Louisiana. v. Moses, 655 So. 2d 779 (La. Ct. App. 1995), McIntyre v. Ohio, 514 U.S. 334 (1995), N.Dakota v. N.D. Ed. Assoc., 262 N.W.2d 731, New York v. Duryea, 351 NYS2d 978 (1974), Washington ex rel Public Disclosure v. 119 Vote No!, 957 P.2d 691 (1998) Ogden v. Marendt, (S.D. Ind 2004),Riley v. Federation of the Blind, 487 U.S. 781 (1998),Stewart v. Taylor, 953 F.Supp.1047 (S.D.Ind.1997), Talley v. California, 362 U.S. 60 (1960), 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. Gardner. Cases resisting Talley include: needs work state v acey, peterslie, worley, majors v abell, wilkinson, connecticut case, green mountain futures, NOM v McKee, Terry, Gable v Patton, Arkansas v Butler, Circuits resisting Talley include: First (Nom v McKee), Sixth (Gable v Patton), Seventh (Majors v Abell), Eleventh (Worley v Florida). Circuits following Talley include 4th (WVfL v Smith), 8th, (236 F. 3d 1174 (8th Cir. 2000) - Citizens PAC Political Action Committee v. Davidson), 9th (ACLU of Nevada v Heller), 10th (Wilson v Stocker). Additionally, at least 12 states have found a right to anonymous speech in their state constitution, while at least three states decided the other way. The states include CA, CO, DE, ID, IL,LA, OH, MA,ME,MO, ND, NY. Schuster, Tattered Cover, Opinion of the Justices (DE), People v Barney, State v Burgess, People v White, Dennis v Mass., Opinion of the Justices (ME), Ex Rel. Harrison, ND Ed Assoc., People v Duryea. States ruling the other way include NC, TN, Ky. Peterslie, State v Acey, Wilkinson. This is a deep split. The court has made at least two previous attempts to resolve the split, in McIntyre, and ACLF. The question presented in McIntyre was whether there was an elections exception to Talley. 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 overiding state interest. Justice Scalia, dissenting, called this a "kiss of death" standard. Rhode Island here misreads McIntyre as only creating an exception for little ladies with home computers who spend under $1000, and misreads McConnell's electionering 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" concurence in McIntyre. As discussed below, Rhode Island misread Citizens United as having implicitly repealed Talley, McIntyre, ACLF, Watchtower, etc. Buckley v ACLF carefully distinguished disclosure, which gets 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. 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 anamalous 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 followed, as the First Circuit did below, as holding that Citizens implicitly overuled not just Austin, but Talley, Mcintyre, ACLF, Wooley, maybe even Barnette. This is error, for the folowing 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 McInytre, it would have itself been overuled by later cases such as Town of Vincent v Reed, AID v Open Society, NIFLA v Becerra, and Janus. 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 issue in McConnell, 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 overule 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 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. The United States is an experiment in a libertarian constitutional democratic republic, in which the people are sovereign, instead of having 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 the 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 Ilsand are more dire. And, as plaintiffs have argued, the 5 donor requirement goes well beyong 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 safegarding elections. Actual jailings for disclaimer violations are rare, but not unknown. Harrison, Dennis, Schaeffer,and Doug Geutzloe are among thiose who have been jailed. Ex rel Harrison (Mo 1908), Dennis v Mass (MA. 1972), shaeffercase.blogspot.com, https://en.wikipedia.org/wiki/Doug_Guetzloe. Currently congress has a partisan split on 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. 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. As far as I know 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. 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. (word count) [Closing Signature Block with clearly identified counsel of record] = The cover of an amicus brief must comply with all of the requirements applicable to the cover of other booklet-format briefs. Rules 33.1(e), 33.1(g) and 34.1. At the petition stage, an amicus brief should have a cream cover; at the merits stage, an amicus brief in support of the petitioner or in support of neither party should have a light green cover, and an amicus brief in support of the respondent should have a dark green cover. Rule 33.1(g). In consolidated cases, the Court’s docket may provide more = Forty copies of an amicus brief must be submitted in booklet form. Rule 33.1(f).
Regardless of intent, the effect of disclaimer rules has been to severely burden the speech 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. For example, in Anonymous v. Delaware, the until-now anonymous plaintiff did not want to risk interfering with another pending case, later settled for around a million dollars. Huminski v. Corsones, 396 F.3d 53 (2d Cir. 2004), Balancing Courtroom Safety and Free Expression: Huminski v. Corsones, Robert M. Howard,The Justice System Journal, Vol. 27, No. 1 (2006).
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 unconstitutional disclaimer rules, 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. @ add NIFLA v Becerra. Louisiana has a similar history of as soon as one disclaimer statute is struck down, another is enacted, in an ongoing cycle. Lousiana 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. (@ cite terry, gable v patton, wilkinson) 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. The split began in 1961, and continues in 2022. A majority of cases have followed Talley, and later McIntyre v. Ohil Elections Commission, but about 1/3 of the cases have refused to do so, and about 2/3rds of the states still enforce some disclaimer statute. 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), Vermont Right to Life v. Sorrell, 221 F.3d 376, 392 (2d Cir. 2000) [?], 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), Griset v CalFPPC (1999), reversed on other grounds, Illinois v. White, 506 NE2d 1284 (Ill. 1987), Louisiana. v. Moses, 655 So. 2d 779 (La. Ct. App. 1995), McIntyre v. Ohio, 514 U.S. 334 (1995), N.Dakota v. N.D. Ed. Assoc., 262 N.W.2d 731, New York v. Duryea, 351 NYS2d 978 (1974), Washington ex rel Public Disclosure v. 119 Vote No!, 957 P.2d 691 (1998) Ogden v. Marendt, (S.D. Ind 2004),Riley v. Federation of the Blind, 487 U.S. 781 (1998),Stewart v. Taylor, 953 F.Supp.1047 (S.D.Ind.1997), Talley v. California, 362 U.S. 60 (1960), 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. Gardner. Cases resisting Talley include: needs work state v acey, peterslie, worley, majors v abell, wilkinson, connecticut case, green mountain futures, NOM v McKee, Terry, Gable v Patton, Arkansas v Butler, Circuits resisting Talley include: First (Nom v McKee), Sixth (Gable v Patton), Seventh (Majors v Abell), Eleventh (Worley v Florida). Circuits following Talley include 4th (WVfL v Smith), 8th, (236 F. 3d 1174 (8th Cir. 2000) - Citizens PAC Political Action Committee v. Davidson), 9th (ACLU of Nevada v Heller), 10th (Wilson v Stocker). Additionally, at least 12 states have found a right to anonymous speech in their state constitution, while at least three states decided the other way. The states include CA, CO, DE, ID, IL,LA, OH, MA,ME,MO, ND, NY. Schuster, Tattered Cover, Opinion of the Justices (DE), People v Barney, State v Burgess, People v White, Dennis v Mass., Opinion of the Justices (ME), Ex Rel. Harrison, ND Ed Assoc., People v Duryea. States ruling the other way include NC, TN, Ky. Peterslie, State v Acey, Wilkinson. This is a deep split. The court has made at least two previous attempts to resolve the split, in McIntyre, and ACLF. The question presented in McIntyre was whether there was an elections exception to Talley. 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 overiding state interest. Justice Scalia, dissenting, called this a "kiss of death" standard. Rhode Island here misreads McIntyre as only creating an exception for little ladies with home computers who spend under $1000, and misreads McConnell's electionering 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" concurence in McIntyre. As discussed below, Rhode Island misread Citizens United as having implicitly repealed Talley, McIntyre, ACLF, Watchtower, etc. Buckley v ACLF carefully distinguished disclosure, which gets 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. 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 anamalous 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 followed, as the First Circuit did below, as holding that Citizens implicitly overuled not just Austin, but Talley, Mcintyre, ACLF, Wooley, maybe even Barnette. This is error, for the folowing 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 McInytre, it would have itself been overuled by later cases such as Town of Vincent v Reed, AID v Open Society, NIFLA v Becerra, and Janus. 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 issue in McConnell, 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 overule 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 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. The United States is an experiment in a libertarian constitutional democratic republic, in which the people are sovereign, instead of having 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 the 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 Ilsand are more dire. And, as plaintiffs have argued, the 5 donor requirement goes well beyong 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 safegarding elections. Actual jailings for disclaimer violations are rare, but not unknown. Harrison, Dennis, Schaeffer,and Doug Geutzloe are among thiose who have been jailed. Ex rel Harrison (Mo 1908), Dennis v Mass (MA. 1972), shaeffercase.blogspot.com, https://en.wikipedia.org/wiki/Doug_Guetzloe. Currently congress has a partisan split on 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. 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. As far as I know 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. 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. (word count) [Closing Signature Block with clearly identified counsel of record] = The cover of an amicus brief must comply with all of the requirements applicable to the cover of other booklet-format briefs. Rules 33.1(e), 33.1(g) and 34.1. At the petition stage, an amicus brief should have a cream cover; at the merits stage, an amicus brief in support of the petitioner or in support of neither party should have a light green cover, and an amicus brief in support of the respondent should have a dark green cover. Rule 33.1(g). In consolidated cases, the Court’s docket may provide more = Forty copies of an amicus brief must be submitted in booklet form. Rule 33.1(f).
Sunday, December 26, 2021
Friday, December 17, 2021
sunday: 5 boxes to food not bombs. came back with a full car. went to a trivia night. was winning at first but lost bad, but it was nice. forgot to go to zonies to meet that new dancer.
saturday: went to see tommy. brought food, we did laundry, had sex, i went home.
friday did/didn't
1. deposited $4000. balance $1600. took 3 trips to bank.
2. called bmv, found out my hearing was the 15th. have 7 days to undo dismissal.
need to write that up.
3. got back into chromebook /google account. had to change password and give up my phone number.
i guess i didnt do much else today.
should go unload car.
==
thursday
bank. paid off ^620, chase, deposited $2000 sent tommy $50.
standup went well.
bought moosetraps.
==weds.
forgot to call re hearing.
po box. paid off 5th 3rd.
trash, dishes, scotty, started unloading car.
to do friday:
unload car get more moousetraps. defrost fridge? go see tommy. lube.
to do eventually
resume to team america
tires
brief
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