outline of arizona amicus. did i do this already, in a letter to tim at goldwater?
motion for leave to file amicus.
Dear Judge,
Recently, you authored an opinion upholding Prop. 11, dismissing the case but with leave to refile. For the purposes of this letter, I treat the case as one that remains open. If unripe, please hold this letter until such time as the case is refiled. Alternatively, you may choose, sua sponte, to reconsider your opinion for the reasons set out below.
The opinion had two main parts. In the first part, you upheld a disclosure provision under the Bonta standard. I will defer your expertise there. Bonta is new enough that I cannot predict how reviewing courts will or must rule.
In the second part, you upheld a disclaimer provision. As a person who is somewhat of an expert on this topic, I believe that your ruling was wrong and mistaken, influenced by false statements of law presented by the campaign legal center on behalf of defendants.
On June 30th, the Supreme Court entered a ruling in 303 Creative v Ennis which is incompatible with your ruling. When plaintiffs refile their case, you should grant a preliminary injunction, or other ruling, as to the disclaimer issue, due to the controlling effect of 303 Creative. It would be an error of law and abuse of discretion to fail to do so.
You also ruled that the disclaimer provision does not violate the free speech clause of the state constitution. While the matter is more within your discretion, I believe you were influenced by your error on the federal claim. I will present an argument that the disclaimer provision does violate the free speech clause. I will not address the other state constitutional arguments the plaintiffs made.
Introduction to Argument:
303 Creative is controlling authority and must be followed, whether you personally agree or disagree with its holding that a state government may not compel speech.
The error in your opinion was that you used the wrong standard of review. The term of art "exacting scrutiny" is a contronym. It means different things in different contexts. This resulted in a confusing passage in dicta in Citizens United, which has resulted in error in a series of cases including NOM, Green Mountain Futures, Smith v Helzer, and Gaspee Project v Mederos.
As used in McIntyre v Ohio Elections Commission, the leading case on political disclaimers, exacting scrutiny is the same as strict scrutiny. In Buckley v Valeo, which was the leading case on disclosure prior to Bonta, it meant the opposite, extremely permissive review. The thing to watch out for in disclaimer cases is when courts do a bait and switch, and substitute the permissive standard for disclosure instead of using the strict standard for disclaimers. Majors v. Abell, (7th Circ 2004), is one such example.
In 303, it was undisputed by the parties that strict scrutiny applies.
Numerous controlling cases have held that strict scrutiny is the proper standard for cases about political speech. These include McIntyre, ACLF, Reno v ACLU, Town of Gilbert v Reed, Janus, even Citizens United. Bonta uses a form of intermediate review. NIFLA found that a disclaimer regulation failed any level of review so did not decide the issue.
Numerous cases which are controlling here have held that the government may not compel speech. These include Barnette, Talley v, California, Riley v Fed of the Blind, Tornillo v. Miami Herald, Wooley v Maynard, McIntyre, Buckley v. ACLF, Watchtower v Stratton, Janus, NIFLA v Becerra, and now 303 Creative. Your court is obligated to comply with these rulings.
The state constitutional argument has three sections.
Brush and Nib seems to be the leading case in Arizona courts. I do not have access to an annotated Arizona constitution; our local law libraries shut down in response to covid, and I have not found one online.
The same United States Supreme Court cases which are controlling as to the First Amendment claim are not controlling as to the state claim, but are persuasive authority. There are also other lower court cases on disclaimers and the First Amendment.
State constitutional cases from other states, finding that disclaimer rules violate state constitutions, are persuasive authority. So far I have found 13 of these; there may be more. There are cases from CA, CO, DE, ID, IL, LA, MA, ME, MO, WA. There are cases from TN and NC finding no state right protecting against disclaimer rules; these are both erroneous and unpersuasive.
Schuster, Tattered Cover, Opinion of the Justices (DE), People v Barney, People v White, Fulton, Moses, Commonwelath v Dennis, Opinion of the Justices (Maine), Ex Parte (morrison? coleman?) _(MO, 1908),
All for today. 12:15 - 1:51 8/8/23,
A. Compelled Speech
¶48 The compelled speech doctrine is grounded on the principle
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 also Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557,
573 (1995) (“[O]ne important manifestation of the principle of free speech is
that one who chooses to speak may also decide what not to say.” (citation
and internal quotation marks omitted)); Riley v. Nat’l Fed’n of the Blind of
N.C., 487 U.S. 781, 796–97 (1988) (stating that the First Amendment
guarantee of free speech necessarily includes the freedom of deciding “both
what to say and what not to say”). 2:30 pm 8/8.
Content-based laws must satisfy strict scrutiny.
Reed, 135 S. Ct. at 2227. Thus, such laws “are presumptively
unconstitutional and may be justified only if the government proves that
they are narrowly tailored to serve compelling state interests.
bolick concurring
As our constitution’s framers
chose to secure free speech with language different and more protective
than the First Amendment, our constitutional oath requires us to invest
those words with their fully intended meaning.
In so doing, if the meaning of the language is clear, we should
enforce it without resorting to secondary interpretative methods.
Finally, where our
provision is similar to provisions in other state constitutions, we may look
to court decisions and other historical records from those other states prior
to our constitution’s ratification to help determine the framers’ intent in
adopting them.
In construing the provisions of our Declaration of
Rights, we always must be mindful of the admonition that government is
“established to protect and maintain individual rights.” Ariz. Const. art. 2,
§ 2.
Indeed, in concluding that a law that compelled speech violated the
California Constitution’s similarly-worded free speech guarantee, the
BRUSH & NIB ET AL. V. CITY OF PHOENIX
JUSTICE BOLICK, Concurring
56
California Supreme Court declared, “[o]ne does not speak freely when one
is restrained from speaking. But neither does one speak freely when one is
compelled to speak.” Gerawan Farming, Inc. v. Lyons, 12 P.3d 720, 750 (Cal.
2000).
Article 2, section 6 of the Arizona Constitution provides in
full: “Every person may freely speak, write, and publish on all subjects,
being responsible for the abuse of that right.” That language is majestic in
its sweep, and we have consistently found that it provides greater
protection for speech than the First Amendment. S
303 creative.
obligation to follow scotus precedent.
timeliness of filing.
disclosure and bonta.
disclaimers and mcintyre
federal claim
why citizens united is not controlling.
why cases based on campaign legal center briefs are not persuasive.
thomas dissent in delaware strong.
state claim.
brush and nib.
federal precedent is persuasive while not controlling.
scotus. circuits. states. lower courts.
decisions from 13 other states are persuasive.
outline of arizona amicus. did i do this already, in a letter to tim at goldwater?
motion for leave to file amicus.
303 creative.
obligatiion to follow scotus precedent.
timeliness of filing.
disclosure and bonta.
disclaimers and mcintyre
federal claim
why citizens united is not controlling.
why cases based on campaign legal center briefs are not persuasive.
thomas dissent in delaware strong.
Justice Thomas, dissenting from the denial of certiorari. 2016.
First Amendment rights are all too often sacrificed for the sake of transparency in federal and state elections. “ ‘Sunlight,’ ” this Court has noted, is “ ‘the best of disinfectants’ ” in elections. See Buckley v. Valeo, 424 U. S. 1, 67 (1976) (per curiam) (quoting L. Brandeis, Other People’s Money 62 (1933)). But that is not so when “ ‘sunlight’ ” chills speech by exposing anonymous donors to harassment and threats of reprisal. See Citizens United v. Federal Election Comm’n, 558 U. S. 310, 482–484 (2010) (Thomas, J., concurring in part and dissenting in part); see also, e.g., NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 462–463 (1958). This case presents the opportunity to clarify that the State’s interest in transparency does not always trump First Amendment rights.
“Disclaimer and disclosure requirements enable private citizens and elected officials to implement political strategies specifically calculated to curtail campaign-related activity and prevent the lawful, peaceful exercise of First Amendment rights.” Citizens United, 558 U. S., at 483 (opinion of Thomas, J.)
By refusing to review the constitutionality of the Delaware law, the Court sends a strong message that “exacting scrutiny” means no scrutiny at all. I respectfully dissent from the denial of certiorari.
state claim.
brush and nib.
https://adfmedia.org/case/brush-nib-studio-v-city-phoenix
https://adfmedialegalfiles.blob.core.windows.net/files/BrushNibAmicusBriefsMerits.pdf
federal precedent is persuasive while not controlling.
scotus. circuits. states. lower courts.
decisions from 13 other states are persuasive.
11:26 pm 8/5/23. so my father was born 8/6/1929.
2023
-1929 = 94. my dad would have been 94 today.
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303 creative notes
8/8/23.
gorsuch 6-3.
303 CREATIVE LLC, ET AL., PETITIONERS v.
AUBREY ELENIS, ET AL. 6/30/23. Cite as: 600 U. S. ____ (2023)
But in this particular case Colorado does not just seek to
ensure the sale of goods or services on equal terms. It seeks
to use its law to compel an individual to create speech she
does not believe. The question we face is whether that
course violates the Free Speech Clause of the First Amendment.
The framers designed the Free Speech Clause of the First
Amendment to protect the “freedom to think as you will and
to speak as you think.”
An end because the freedom to think
and speak is among our inalienable human rights. See, e.g.,
4 Annals of Cong. 934 (1794) (Rep. Madison). A means because the freedom of thought and speech is “indispensable
to the discovery and spread of political truth.”
“[i]f there is any fixed star in
our constitutional constellation,” West Virginia Bd. of Ed.
v. Barnette, 319 U. S. 624, 642 (1943), it is the principle that
the government may not interfere with “an uninhibited
marketplace of ideas,”
The veterans’ choice of what to say (and not
say) might have been unpopular, but they had a First
Amendment right to present their message undiluted by
views they did not share. Cite as: 600 U. S. ____ (2023) 9
Generally, too, the government may not compel a person to speak its own preferred messages. See
Opinion of the Court
Tinker v. Des Moines Independent Community School Dist.,
393 U. S. 503, 505–506 (1969); see also, e.g., Miami Herald
Publishing Co. v. Tornillo, 418 U. S. 241, 256 (1974); Wooley
v. Maynard, 430 U. S. 705, 714 (1977); National Institute of
Family and Life Advocates v. Becerra, 585 U. S. ___, ___
(2018) (NIFLA)
Nor does it matter whether
the government seeks to compel a person to speak its message when he would prefer to remain silent or to force an
individual to include other ideas with his own speech that
he would prefer not to include. All that offends the First Amendment
just the same.
As surely as Ms. Smith seeks to engage in protected First
Amendment speech, Colorado seeks to compel speech Ms.
Smith does not wish to provide.
While that court
thought Colorado could compel speech from Ms. Smith consistent with the Constitution, our First Amendment precedents laid out above teach otherwise.
Under our precedents,
that “is enough,” more than enough, to represent an impermissible abridgment of the First Amendment’s right to
speak freely.
Taken seriously, that principle would allow the government
to force all manner of artists, speechwriters, and others
whose services involve speech to speak what they do not believe on pain of penalty. The government could require “an
unwilling Muslim movie director to make a film with a Zionist message,” or “an atheist muralist to accept a commission celebrating Evangelical zeal,” so long as they would
make films or murals for other members of the public with
different messages.
As our
precedents recognize, the First Amendment tolerates none
of that.
When a state ... law and the
Constitution collide, there can be no question which must
prevail. U. S. Const., Art. VI, cl. 2.
If anything is truly dispiriting here, it is the dissent’s failure to take seriously this Court’s enduring commitment to protecting the speech rights of all comers, no
matter how controversial—or even repugnant—many may
find the message at hand.
Eighty years ago in Barnette, this Court
affirmed that “no official, high or petty, can prescribe what
shall be orthodox in politics, nationalism, religion, or other
matters of opinion.” 319 U. S., at 642. The Court did so
despite the fact that the speech rights it defended were
deeply unpopular; at the time, the world was at war and
many thought respect for the flag and the pledge “essential
for the welfare of the state.”
But “[i]f liberty means anything at all, it means the right to tell people what they do
not want to hear.
In the past,
other States in Barnette, Hurley, and Dale have similarly
tested the First Amendment’s boundaries by seeking to
compel speech they thought vital at the time. But, as this
Court has long held, the opportunity to think for ourselves
and to express those thoughts freely is among our most
cherished liberties and part of what keeps our Republic
strong.
But tolerance, not coercion, is our Nation’s
answer. The First Amendment envisions the United States
as a rich and complex place where all persons are free to
think and speak as they wish, not as the government demands. Because Colorado seeks to deny that promise, the
judgment is
Reversed.
