1 pm 12/30/22 - 2 pm.
resumed 1/1/2023 1: 53 pm. wrote here till 3, then listened to ij podcast on litigating under state constitutions in state court till 4:17 pm. so 2.25 hours so far today, sunday 1/1/23.
Notes for a motion for injunction and memorandum in support in doe v carroll county election board.
This is a case about the constitutionality of a statute and policy which criminalize core political speech such as “Vote for Smith”, instead requiring a compelled identification disclaimer such as "Vote for Smith. Paid for by Jones, PO Box 17 Delphi IN, Not authorized by Smith." The statute is IC 3-9-3-2.5.
The County's policy, as evidenced by the brochure "Political Literature", is similar to the statute but criminalizes a single sign, where under the statute, as interpreted by the Indiana Supreme Court in Majors v Abell, cite, there must be at least 100 signs. In Majors, the court expressed no opinion about whether the statute violated either the state or federal constitution; it was solely a statutory interpretation case. [tangent, re-write]
The statute is 2.5 because a prior statute, IC 3-9-3-2, had been found unconstitutional on the basis of McIntyre v Ohio Elections Commission,cite, in Stewart v Taylor (cite). 2.5 is equally unconstitutional under McIntyre, as well as more recent cases including NIFLA v Becerra, Janus v Public Employees #35, Reed v Town of Gilbert.
Injunctive relief requires some likelihood of success on the merits, irreparable injury, balance of the burdens, and the public interest. Here, each factor is met.
In order to prevail on a preliminary injunction motion, plaintiffs must establish 1) a substantial likelihood of success on the merits; 2) a substantial threat of irreparable injury if the injunction is not granted; 3) that the threatened injury to the plaintiffs outweighs the harm an injunction may cause defendants; and 4) that granting the injunction would not disserve the public interest. aclu of geogia v miller
First, because "the identity of the speaker is no different from other components of [a] document's contents that the author is free to include or exclude," McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 340-42, 115 S. Ct. 1511, 1516, 131 L. Ed. 2d 426 (1995), the statute's prohibition of internet transmissions which "falsely identify" the sender constitutes a presumptively invalid content-based restriction. See R.A.V. v. St. Paul, 505 U.S. 377, 382, 112 S. Ct. 2538, 2542-43, 120 L. Ed. 2d 305 (1992). The state may impose content-based restrictions only to promote a "compelling state interest" and only through use of "the least restrictive means to further the articulated interest." Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 126, 109 S. Ct. 2829, 2836, 106 L. Ed. 2d 93 (1989). Thus, in order to overcome the presumption of invalidity, defendants must demonstrate that the statute furthers a compelling state interest and is narrowly tailored to achieve it.
"No long string of citations is necessary to find that the public interest weighs in favor of having access to a free flow of constitutionally protected speech." Reno, 929 F. Supp. at 851.
Elrod v. Burns,
427 U.S. 347 (1976“No long string of citations is necessary to find that the public interest weighs in favor of having access to a free flow of constitutionally protected speech.” ACLU v. Reno, 929 F. Supp. 824, 851 (D. Pa. 1996); see also K.H. Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1272 (11th Cir. 2006) (“The
public has no interest in enforcing an unconstitutional ordinance”) (citation omitted). This simply “acknowledge[s] the obvious: enforcement of an unconstitutional law is always contrary to the public interest.” Gordon v. Holder, 721 F.3d at 653 (citations omitted). ACLU of Georgia v Miller.
Determination of whether a movant is entitled to a preliminary injunction involves a multi-step inquiry. “As a threshold
matter, a party seeking a preliminary injunction must demonstrate (1) some likelihood of succeeding on the merits, and (2)
that it has ‘no adequate remedy at law’ and will suffer ‘irreparable harm’ if preliminary relief is denied.” Cassell v. Snyders, 990 F.3d 539, 544–45 (7th Cir. 2021) (quoting Abbott Labs. v.
Mead Johnson & Co., 971 F.2d 6, 11 (7th Cir. 1992)). If the movant makes this showing, the district court must then consider two additional factors: “the irreparable harm the non-moving party will suffer if preliminary relief is granted, balancing that harm against the irreparable harm to the moving party if relief is denied” and “the public interest, meaning the consequences of granting or denying the injunction to non-parties.” Id. at 545 (quoting Abbott Labs., 971 F.2d at 11–12). The district court must equitably weigh these four factors together to determine
if a preliminary injunction is warranted. Id. INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL 365, et al., v. EAST CHICAGO (7th Circ. 2022).
Here there is some likelihood of success. A dozen controlling U S Supreme Court precedents,
13 state constitutional cases, and 35 persuasive lower court rulings support plaintiff's case on the merits.
Plaintiff's speech is protected by the plain text of the state constitution and of the First Amendment as incorporated.
The irreparable harm prong is easily met as well, since plaintiff's speech is chilled by the plain text of the statute and the board's credible threat of prosecution.
Under Seventh Circuit law, irreparable harm is presumed
in First Amendment cases. Christian Legal Soc’y v. Walker, 453
F.3d 853, 859 (7th Cir. 2006). Firefighters v East Chicago (7th Cir. 2022).As the Supreme Court has stated, “[t]he loss of First Amendment
freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347,
373 (1976). Firefighters, (7th Circ. 12/21/2022.)To the extent that the appellants’ argument is that the preliminary injunction violates the Indiana statutes, this argument is obviously foreclosed by the Supremacy Clause. See McHenry County v. Kwame Raoul, 44 F.4th 581, 587 (7th Cir. 2022) (“In cases where federal and state law conflict, ‘federal law prevails and state law is preempted.’”) (quoting Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461, 1476 (2018)). The Indiana statutes may grant ... authority over the fire department, but this does not permit them to use that authority in violation of the First Amendment. Firefighters.
In light of this imbalance of evidence, it was not an abuse of discretion for the district court to find that the “undocumented possibility that East Chicago might be saving money” was a “feather” in comparison to the “anvil” of harms to the Fire Fighters. Id.
