caption
motion for temporary injunction
intro
merits
other factors
conclusion
Injunctive relief requires irreparable harm and some likelihood of success on the merits. The court then weighs the likelihood of success, the balance of burden on the parties, the lack of alternative remedies, and the public interest. cite mulholland.
Here the merits are very strong. IC 3-9-3-2.5 is largely a reenactment of IC 3-9-3-2, which was struck down as unconstitutional by Stewart v Taylor, and is unconstitutional for the same reasons discussed in Stewart v Taylor.
The statute violates both constitutions, by either the plain text, the case law, history and tradition.
2.5 has some changes from 2, but none that are relevant here. 2.5 has an exception for skywriting, but skywriting is not the issue here.
Similarly, 2.5 exempts referanda, and is limited to express advocacy, but the text at issue in Stewart v Taylor was not about referenda, and was express advocacy. Taylor, a federal case, is not binding here, but the case on which it relies, McIntyre v Ohio, is. Taylor was not a case about overbreadth or vagueness, but found that the speech at issue was core political speech protected by the First Amendment. Because it resolved the case on federal grounds, it declined to reach the state constitutional issues.
The question presented in McIntyre is whether there is any "elections exception" to the rule in Talley v California that disclaimer requirements are unconstitutional. The ruling was that these is no such exception, a form of strict scrutiny applies, and the Ohio statute, which required identification disclaimers on candidate literature, was void and unenforcable.
Disclaimer cases following Talley include McIntyre, Buckley v. ACLF, Watchtower v Stratton, and NIFLA v Becerra.
The cases are a subset of the general principle that the right to speak includes the right not to speak, the right to remain silent.
Barnette, Tornillo, Riley v Federation of the Blind, Wooley v Maynard, Janus, are other cases making this same point. Each is binding on this court; any one of these cases by itself is sufficient to find a strong likelihood of success.
The First Amendment, made applicable to the States by
the Fourteenth Amendment, forbids abridgment of the
8 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES
Opinion of the Court
freedom of speech. We have held time and again that
freedom of speech “includes both the right to speak freely
and the right to refrain from speaking at all.” Wooley v.
Maynard, 430 U. S. 705, 714 (1977); see Riley v. National
Federation of Blind of N. C., Inc., 487 U. S. 781, 796–797
(1988); Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U. S. 539, 559 (1985); Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, 256–257 (1974); accord,
Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal., 475
U. S. 1, 9 (1986) (plurality opinion).
“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what
shall be orthodox in politics". Janus, citing Barnette.
Perhaps because such compulsion so plainly violates the
Constitution, most of our free speech cases have involved
restrictions on what can be said, rather than laws compelling speech. But measures compelling speech are at least
as threatening. Janus.
NIFLA v Becerra:
The First Amendment, applicable to the States through
the Fourteenth Amendment, prohibits laws that abridge
the freedom of speech. When enforcing this prohibition,
our precedents distinguish between content-based and
content-neutral regulations of speech. Content-based
regulations “target speech based on its communicative
content.” Reed v. Town of Gilbert, 576 U. S. ___, ___
(2015) (slip op., at 6). As a general matter, such laws “are
presumptively unconstitutional and may be justified only
if the government proves that they are narrowly tailored
to serve compelling state interests.” Ibid. This stringent
standard reflects the fundamental principle that governments have “‘no power to restrict expression because of its
message, its ideas, its subject matter, or its content.’”
Ibid. (quoting Police Dept. of Chicago v. Mosley, 408 U. S.
92, 95 (1972)).
The licensed notice is a content-based regulation of
speech. By compelling individuals to speak a particular
message, such notices “alte[r] the content of [their]
speech.” Riley v. National Federation of Blind of N. C.,
Inc., 487 U. S. 781, 795 (1988); accord, Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 642 (1994); Miami
Herald Publishing Co. v. Tornillo, 418 U. S. 241, 256
(1974). NIFLA.
Further, when the government polices the content of
professional speech, it can fail to “‘preserve an uninhibited
marketplace of ideas in which truth will ultimately prevail.’” “[T]he best test of truth is the
power of the thought to get itself accepted in the competition of the market,” Abrams v. United States, 250 U. S.
616, 630 (1919) (Holmes, J., dissenting), and the people
lose when the government is the one deciding which ideas
should prevail.
Indiana courts have followed McIntyre on several occasions. These include Ogden v Marendt, 264 F. Supp. 2d 785 (S.D. Ind. 2003), Mulholland, AKKKK v Goshen. Ogden relied on McIntyre to find Indiana's slating sign rules unconstitutional censorship of political signs. Mulholland's case was settled for $70,000 after Marion County violated the declaratory judgment of Ogden. In Akkkk v Goshen, an anti-mask ordinance was found to violate right to anonymous speech.
A district court will grant a preliminary injunction if there is a reasonable likelihood of success on the merits of the claim, no adequate remedy at law, and failure to grant the injunction would cause irreparable harm to the party seeking it. Jones v. InfoCure Corp.,310 F.3d 529, 534 (7th Cir. 2002) (citing Ty, Inc. v. Jones Group, Inc.,237 F.3d 891, 895 (7th Cir. 2001)). If the
Ogden v. Marendt, (S.D.Ind. 2003), 264 F. Supp. 2d 785, 788 (S.D. Ind. 2003)
“If the moving party has made a sufficient showing of those elements, the court then balances the relative harms to the parties depending on whether the injunction is granted or denied, and taking into account the public interest in the matter.” Ogden v. Marendt, (S.D.Ind. 2003), 264 F. Supp. 2d 785, 788 (S.D. Ind. 2003)
Likewise in the present case, the anti-slating law burdens core political speech. The endorsement or expression of support for candidates for office whose views one shares goes to the heart of First Amendment protections. See Buckley v. Valeo,424 U.S. 1, 14, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) ("there is practically universal agreement that a major purpose of th[e First] Amendment was to protect the free discussion of governmental affairs. . . . of course includ(ing) discussions of candidates [.]") (citing Mills v. Alabama,384 U.S. 214, 218, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966)). "The First Amendment has its fullest and most urgent application to speech uttered during a campaign for political office."
Ogden v. Marendt, (S.D.Ind. 2003), 264 F. Supp. 2d 785, 790 (S.D. Ind. 2003)
In 2014, the election board again tried to impose the unconstitutional slating statute, but was rebuffed by the 7th Circuit in Mulholland v Marion County Election Board.
Even granting that the Indiana anti-slating statute does not plumb such hyperbolic depths of unconstitutional offense, the Election Board's attempt to enforce a law that a federal court has already told the Board in a final judgment is unconstitutional represents the sort of “other unusual circumstance that would call for equitable relief.” Mulholland.
Because the district court erred in dismissing the case under Younger, we REVERSE that decision and REMAND for further proceedings, with the additional instruction that the district court consider promptly whether to issue a preliminary injunction against the Board, keeping in mind the primary election scheduled for May 6, 2014. Id. The case then settled for around $70,000.
A prior statute, materially the same as it affects this case, was declared unconstitutional in Stewart v Taylor.
Turning to the substantive issue in the case, we must determine whether section 3-9-3-2 violates Stewart's First Amendment right to freedom of speech. In McIntyre v. Ohio Elections Commission, 514 U.S. 334, 115 S. Ct. 1511, 131 L. Ed. 2d 426 (1995), the Supreme Court struck down as unconstitutional an Ohio statute that required all printed political campaign literature in the state to contain the name and address of the person or head of the organization responsible *1054 for the publication of the literature. The Court held that the Ohio statute violated the First Amendment because it burdened core political speech in a manner that was not narrowly tailored to serve an overriding state interest. Id. at ___ - ___, 115 S. Ct. at 1519-24. Stewart contends that this case is controlled by McIntyre. Stewart is correct.
The Supreme Court made clear in McIntyre that campaign literature in support of a candidate for elective office is "core political speech" that is entitled to the fullest protection of the First Amendment.
When statutes and regulations burden core political speech, courts must apply "exacting scrutiny" when passing on the constitutionality of those laws and uphold them only when they are narrowly tailored to serve an overriding state interest. Id. at ___, 115 S. Ct. at 1519. See also Burson v. Freeman, 504 U.S. 191, 198, 112 S. Ct. 1846, 1851, 119 L. Ed. 2d 5 (1992). The Ohio statute challenged in McIntyre, Ohio Rev.Code § 3599.09(A) (1988), like section 3-9-3-2, required that all campaign signs disclose the name of the person or the name of an official of the organization responsible for issuing or making the sign.[6] The Court found the state's putative interest in preventing fraudulent and libelous statements and in providing the electorate with relevant information did not justify the Ohio statute's ban on anonymous campaign literature, because the statute's strictures applied to all campaign literature, not just the misleading, fraudulent, or libelous. Id. at ___ - ___, 115 S. Ct. at 1519-22. As with the Ohio statute, section 3-9-3-2 also makes no distinction among the various types of campaign literature that would narrowly tailor the statute's requirements to the furtherance of a legitimate state goal or interest. Section 3-9-3-2 applies to all campaign literature not specifically exempted on the basis of impracticality in subsection (c) of the provision.[7] The statute *1055 burdens dissemination of campaign literature that is informative as well as misleading, innocuous as well as libelous, truthful as well as fraudulent. Therefore, we find that section 3-9-3-2 is not narrowly tailored to meet a compelling state interest.
It would be legal error and abuse of discretion to deny an injunction in this case.
1 hr. resume editing 12:01 am 9/21/22 - 3 am. 2 more hours 2.0 9/22 in kokomo.
The state constitution provides several additional bases to enjoin the void statute. Article 1, Section 9, is a free speech provision. Unlike the federal constitution, which protects only the "freedom of" speech, the text is categorical and unambigious. However, in the leading case, Price v State, 1993, the Indiana Supreme Court chose to provide strict scrutiny only to political speech, rather than all speech. Here the speech, a series of signs of the format "Vote for Smith", are unquestionably political, so strict scrutiny applies. A second wind for the indiana bill of rights, IN L Rev.
No Indiana Constitutional law case has reached the issue of anonymous speech. In a prior case about 3-9-3-2.5, Majors v. Abell, the court declined to reach the state constitutional issues, and only settled a matter of statutory interpretation. In footnote 11, the court did provide a limiting construction to the statute, finding that it did not apply to signs unless there were 100 or more of them.
The Carroll County Board has a more restrictive policy. A single sign would be enough to trigger enforcement, according to the "Political Literature" brochure. cite url.. See LaDue v Gileo, United States v. Grace. Thus the Board's unconstitutional censorship policy goes even further than the void statute, as that statute has been limited by the state supreme court.
A number of states, at least 15, have found anonymous speech to be protected by the state constitution, as well as federally, usually in controversies about disclaimers.. These include CA, CO, DE, ID, IL, LA, MA, ME, MO, ND, NY. These cases are not controlling, but are persuasive. Schuster, Tattered Cover, Opinion of the Justices (DE), State v Barney, People v White, State v Moses, State v Fulton, Dennis v Massachusetts, Opinion of the Justices (ME), Ex rel _ (1906), ND Ed Association, People v Duryea.
Other courts, both state and federal, have based decisions solely on federal grounds. [cite.]
Not all states are on board. KY, TN, NC, and CT have upheld disclaimer rules. Gable v Patton, State v Acey, Peterslie. These are older cases predating Town of Vincent v Reed, which found that strict scrutiny applies to political sign cases, Janus, which upheld anonymous speech, and NIFLA, which found a disclaimer statute unconstitutional. Many of these cases used the lax and permissive Buckley v Valeo standard, before that was overruled by Bonta.
Several recent cases have erroneously allowed disclaimer rules, based on dicta in Citizens United taken out of context. That case, unlike this case, was limited to corporate speech, and suggested disclosure and disclaimers as a less restrictive remedy than a complete ban. Indiana has no such ban on politcal signs generally. Citizens United expanded rather than restricted speech, and made no claim to have overruled McIntyre, Barnette, Talley, or ACLF. What these cases have in common is that they were unduly influenced by amicus briefs from the Campaign Legal Center, which misstated Citizens United. Even if that case had held what the Center claims it did, it has been mooted by subsequent case law including Town of Vincent, Janus, and NIFLA. Similarly, McConnell v FEC declained to hold BCRA facially invalid except in part, and denied a specific as-applied challenge to a disclaimer provision, but explicitly stated that McIntyre remains good law.
In Majors v. Abell, the 7th Circuit denied relief on the basis that McConnell had created uncertainty about disclosure law. Subsequent cases, such as WRTL I and II, Davis v FEC, Free Enterprise Fund, Western Tradition, Citizens United, and Cruz v FEC, have removed this uncertainty. Majors did not apply heightened scrutiny, and does not survive Town of Vincent, or NIFLA. When Mulholland reached the 7th Circuit, the only mention of Majors was as it related to standing. Mulholland at the 7th circuit was on a procedural point, not the merits, but it indicated Majors was no longer considered controlling on the merits.
The controlling cases include Price as to state law, and Talley, McIntyre, ACLF, Barnette, Wooley, Riley, Janus, and NIFLA, as to the First Amendment claim.
Talley found a $10 fine excessive for engaging in protected speech, while McIntyre found a $100 fine excessive for similar speech. The 3-9-3-2.5 statutory penalty, including both fines and jail time, is an excessive fine per Timbs v. Indiana. [add count to the complaint.]
Manuel Talley had distributed a flyer without naming himself as the author. Margaret McIntyre and several associates had distributed a flyer at meetings opposing a tax increase.
Section 9 is not the only basis for a finding under the state constitution. Article II section 1 states that elections shall be free and equal. Elections are not free when the state chills election speech with criminal penalties.
The state constitution, Article I section I, holds that Hoosiers have an inalienable right to liberty, codifying the Declaration of Indipendence. A sign that says "Vote for Smith" is an expression of that liberty. Section 1 goes on to say that Hoosiers have the right to alter or abolish the government. Free and equal elections are, usually, the process by which we do so. Section 11, like the 4th Amendment, protects a person's papers and effects from being commandeered by the government, except when there is probable cause. Section 16 requires just compensation when County commandeers private property, which the signs are. Section 31 protects petition and assembly. Signs saying Vote for Smith are a form of petition, and free and equal elections are a form of assembly; the signs are an exercise of the right of assembly. There is little case law on section 31. NAACP v Alabama ex rel Patterson (1958) and Bates v Little Rock (1960) are persuasive but not controlling. Section 12 protects due course of law. Due course of law incorporates some degree of freedom of speech, and requires, at a minimum, a mens rea requirement, which the statute lacks. See Smith v California, which found that bookstore censorship without a mens rea element violates due process and the First Amendment. Due course of law is not identical to due process, but they are related concepts, based in the history and tradition of american and english law at least as far back as the magna charta. The right of a printer to publish anonymous materials critical of the government was at issue in John Peter Zenger's case in 1735, and the founders had that case in mind when they adopted the First and Seventh amendments.
If there were no first amendment and no section 9, plaintiffs would still have a likelihood of success on the merits.
[quote from price about text, case law, history and tradition. bruen also.]
Plaintiffs have a strong likelihood of success on the merits.
Each of the other factors also favors injunction.
The burden on plaintiff is that they risk arrest and fine, or in the alternative submit to having their speech chilled or censored.
This is a severe burden. Concurring in ACLF, Justice Thomas found the identification badge rule a severe burden, triggering strict scrutiny under Norman v Reed.
In contrast, Defendants only need to refrain from illegally violating civil rights, a trivial limit. Perhaps they could answer emails in a more timely and responsive manner. Perhaps they could educate themselves more on what their responsibilities are under the Bill of Rights of both constitutions. But all they need to do for plaintiff is to promise to leave them alone, and stop threatening them. The balance of the burdens favors plaintiff, and an injunction would help protect the integrity of the election process.
There is no public interest in the enforcement of an unconstitutional statute. ACLU of Georgia v Miller. "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, ACLU v Zell Miller. 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)
Violation of First Amendment freedoms is irreparable harm. Elrod v Burns.
Plaintiffs have standing, ripeness, and a justiciable controversy. There is irreparable harm with no adequate remedy at law. They have an extremely strong case on the merits. The public interest requires that the Board's policy be enjoined as soon as possible. The balance of the burdens heavily favors plaintiffs. Each prong of the test for injunctive relief is satisfied, and each factor weighs in favor of granting the injunction. This request for injunctive relief is preliminary, and is not intended as a full resolution of the merits at this time. Time is of the essence, with the campaign season already well under way, although passage of the election will not moot any of the issues in this case.
The court should issue a TRO and schedule a full hearing, and then grant a temporary injunction, later to be made permanent. respectfully submitted [certifications].
=
2nd confidential offer of settlement:
we offer two options to settle this case:
First, be willing to sign a consent decree agreeing not to enforce IC 3-9-3-2.5, pay $1 in damages, and pay court costs and legal fees actually incurred but not to exceed $10,000.
or, Second, pay $10,000 within 30 days of filing in exchange for dismissal with prejudice.
If this offer is denied, we expect the odds are good of a win on the merits, by which time legal fees will be well in excess of $10,000. We will be asking for a trial by jury on the issue of damages, which you will oppose, and we will go through months or years of appeals on issues of damages, while legal fees continue to mount. In the unlikely event that we lose, this case will be a good candidate for a cert petition; we hope to get this issue before the supreme court, whether in your case or some other, because there is a currently a split between the circuits.
I look forward to hearing from you promptly. If there has been no response within ten days, the offer is withdrawn. We anticipate that our next offer will be for $20,000.
2:34 am 9/21, 2.5 hours 9/21, 1.0 hours 9/20.