Gaspee
project v mederoz notes for amivus [to do: find a template for amicus] Reasons
for cert Circuit split. After talley footnote two After mcintyre After aclf
Citizens caused confusion. First case for bonta. The instant case conflicts
with about a dozen supreme court cases about compelled speech, and undermines
the authority of the court’s precedents. Summary of argument: This case
presents two issues, one about disclosure, a close case, and one about
disclaimers, a plain error the court should reverse. This brief is about the
disclaimer issue. This is the first case to attempt to apply the new standard
announced in Bonta, and maybe gets it wrong, so the court could take it for
that reason, to further explicate the new Bonta standard. In Bonta, several concurring
opinions suggested that a stricter yet scrutiny may be needed. This case would
be an opportunity to address those concerns. This brief first details the
circuit split on whether censorship by disclaimer is constitutional, as a
reason to take the case to resolve the split. In Citizens United, 2010, the
court issued dicta 8-1 praising such censorship, in the limited context of
corporate speech, after ruling 9-0 in buckley v aclf that disclaimer rules are
unconstitutional, so lower courts have been confused and the split widened. The
Court should clarify that what it meant in Citizens was limited to corporate
speech and was not the holding of the case. Town of Vincent v Reed, holding
that political sign rules get strict scrutiny, should have cleared this up, but
didn’t. Something like Cooper v Aaron is needed to clear the air and settle the
matter. The second part of the brief addresses the merits of the disclaimer
claim, and argues that Talley and McIntyre should be followed, not ignored.
Ideally, the court should give plaintiffs some kind of teeth, so that officials
who defy Talley can be penalized, and plaintiffs who challenge the obstacles to
democratic process can be rewarded. An endless cycle of injunctions is not
enough. Currently, election officials have little incentive to follow the law,
rather than the statutes, or their own personal political preferences. This is
corruption and oathbreaking, and prevents free and open elections, leaving the
form, but not the substance. Talley v California in 1960 announced a rule that
the government may not require disclaimers on literature such as a political
flier. Yet in McIntyre, footnote 2 of Justice Scalia’s dissent indicate that
nearly 50 states had such rules. (A number of these rules had already been found
unconstitutional, which Scalia neglected to mention.) The majority of courts
followed Talley, but a minority refused; there has been a split in the circuits
ever since, a split that continues today as Gaspee Project shows. McIntyre was
intended to resolve the split, holding that strict scrutiny applies and that
there is no election exception to the rule in Talley. The Ohio Supreme Court
had erred in applying intermediate scrutiny under Valeo, and allowing
censorship by requiring disclaimers, over a dissent. Buckley v ACLF carefully
distinguished between disclaimers, which get strict scrutiny, and disclosure,
which got Valeo’s permissive “exacting” scrutiny. This was a case about a
petition drive to legalize marijuana in Colorado. And yet the split continued.
In McConnell, the court denied one particular as-applied challenge to a
disclaimer, where the argument was that the statement in question was not
express advocacy. The court disagreed. Justice Thomas, dissenting, would have
applied McIntyre. In McConnell, the Court, at note 88, stated that McIntyre was
still good law. Nonetheless, this confused Judge Posner at the 7th circuit, in
Majors v Abell, and the split continued. [possibly quote posner about
indeterminacy.] Zwickler v Golden, 1969 disclaimer case improperly dismissed on
mootness grounds. Zwickler’s congressman had become a judge, but Zwickler was
still going to write to his new congressman about his position on Israel, so
the case wasn’t really moot. This confusion became worse after Citizens United,
discussed below. [make list by year of the cases on the wrong side of the
split.] Notably, the federal election Commission has continued to try to
enforce disclaimer rules contrary to the rule in talley, and has an ongoing
controversy about to what extent to apply these rules to the internet. They
seek to “burn the village to roast the pig.” Reno v ACLU. The FEC often
deadlocks, with the gop members refusing to enforce the unconstitutional
disclaimer rules, while the democratic members keep trying. It is important
that the court resolve the issue in a way the FEC must follow, and cease its
improper censorship of federal elections. Similarly at the FCC, which censors
speech on radio and TV. Ct. case. 255 C. 78. Seymour v. Elections Enforcement
Comm. Supreme Court of Connecticut. Dec 19, 2000. 762 A.2d 880 (Conn. 2000)
Riley in kenticky v terry? Kentucky Right To Life, Inc. v. Terry, 108 F.3d 637
(6th Cir.1997), cert denied, 522 U.S. 860, 118 S.Ct. 162, 139 L.Ed.2d 106
(1997). Gable v patton https://caselaw.findlaw.com/us-6th-circuit/1396718.html
Ky.Rev.Stat. § 121.190(1) Worely Worley, et al. v. FL Secretary of State, et
al., No. 12-14074 (11th Cir. 2013) Nom v mckee Public citizen 11th circuit
https://www.fec.gov/legal-resources/court-cases/fec-v-public-citizen-inc/
Majors v abell State v acey 633 S.W.2d 306 (1982)
https://law.justia.com/cases/tennessee/supreme-court/1982/633-s-w-2d-306-2.html
Wilkinson? Green mountain futures Morefield v. Moore, 540 S.W.2d 873 (1976)
Supreme Court of Kentucky. Zwickler v. Coota, 290 F. Supp. 244
(D.C.E.D.N.Y.1968), In United States v. Insco, 365 F. Supp. 1308
(D.C.M.D.Fla.1973), a Florida statute made it a criminal offense to publish or
distribute any "writing or other statement" relating to or concerning
a candidate for election to the federal Congress unless it contained the name
or names of the persons or organizations responsible for it. Jack P. Insco, a
Republican, and William Gunter, a Democrat, were the nominees of their
respective parties for election to the House of Representatives in 1972, a
presidential year. Insco was indicted for causing to be distributed a quantity
of bumper stickers reading "McGOVERN-GUNTER"[3] which did not bear
the name of the sponsor. On a motion to dismiss the indictment the federal
district court held that Talley did not apply and that the statute did not
violate the First Amendment. 1 Morefield v Moore, 2 Wilkinson v Jones, 3 KY RtL
v terry, 4 Gable v Patton, Freedom Forum v FEC are examples of cases where
Kentucky courts have refused to Follow the rule in Talley. The geographic scope
of the Kentucky exception varies over time - see Peterslie v NC, State v.
Petersilie, 432 S.E.2d 832 (1993), 334 N.C. 169. Wilkinson v. Jones, 876 F.
Supp. 916 (W.D. Ky. 1995) [Freedom Forum v FEC was an express advocacy case;
plaintiff did not refer to talley or mcintyre.] Vermont v. Green Mountain
Future, 2012 VT 87. N carolina peterslie merits. Talley mcintyre aclf
watchtower Barnette Wooley tornillo riley Aid v open society janus nifla v
beccera , the Supreme Court has repeatedly held that the “freedom of speech
prohibits the government from telling people what they must say.” Agency for
Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., 570 U.S. 205, 213 (2013)
Janus v. Am. Fed’n of State, Cnty. & Mun. Emps., Council 31, 138 S. Ct.
2448, 2463 (2018) 1 sentence from each. Other L.D. Management Co. v. Gray, No.
20-5547 (6th Cir. 2021) Ky case about billboards, lion’s den
https://www.justice.gov/opa/press-release/file/1252601/download ky wedding
photographer, brief by usa. The Supreme Court has made plain that the government
cannot “[c]ompel[] individuals to mouth support for views they find
objectionable.” Janus v. Am. Fed’n of State, Cnty. & Mun. Emps., Council
31, 138 S. Ct. 2448, 2463 (2018). Just last year, in fact, the Eighth Circuit
held that Minnesota could not force wedding videographers to film weddings that
they did not wish to film. Telescope Media Grp. v. Lucero, 936 F.3d 740,
750-758 (8th Cir. 2019). The same principle applies here. 2000 Ct. case. 255 C.
78. Seymour v. Elections Enforcement Comm. Supreme Court of Connecticut. Dec
19, 2000. 762 A.2d 880 (Conn. 2000) 1997 Riley in kenticky v terry? Kentucky
Right To Life, Inc. v. Terry, 108 F.3d 637 (6th Cir.1997), cert denied, 522
U.S. 860, 118 S.Ct. 162, 139 L.Ed.2d 106 (1997). 1998 Gable v patton https://caselaw.findlaw.com/us-6th-circuit/1396718.html
Ky.Rev.Stat. § 121.190(1) 2013 Worley, et al. v. FL Secretary of State, et al.,
No. 12-14074 (11th Cir. 2013) 2012 Nom v mckee National Organization for
Marriage v. McKee, 723 F. Supp. 2d 245 2012. 2001 Public citizen 11th circuit
https://www.fec.gov/legal-resources/court-cases/fec-v-public-citizen-inc/
Majors v abell Majors v Abell, 317 F.3d 719 (7th Cir. 2003), 1982 State v acey
633 S.W.2d 306 (1982) https://law.justia.com/cases/tennessee/supreme-court/1982/633-s-w-2d-306-2.html
Wilkinson? Green mountain futures 1976 Morefield v. Moore, 540 S.W.2d 873
(1976) Supreme Court of Kentucky. Zwickler v. Coota, 290 F. Supp. 244
(D.C.E.D.N.Y.1968), 1973 In United States v. Insco, 365 F. Supp. 1308
(D.C.M.D.Fla.1973), a Florida statute made it a criminal offense to publish or
distribute any "writing or other statement" relating to or concerning
a candidate for election to the federal Congress unless it contained the name
or names of the persons or organizations responsible for it. Jack P. Insco, a
Republican, and William Gunter, a Democrat, were the nominees of their
respective parties for election to the House of Representatives in 1972, a
presidential year. Insco was indicted for causing to be distributed a quantity
of bumper stickers reading "McGOVERN-GUNTER"[3] which did not bear
the name of the sponsor. On a motion to dismiss the indictment the federal
district court held that Talley did not apply and that the statute did not
violate the First Amendment. 1 Morefield v Moore, 2 Wilkinson v Jones, 3 KY RtL
v terry, 4 Gable v Patton, Freedom Forum v FEC are examples of cases where
Kentucky courts have refused to Follow the rule in Talley. The geographic scope
of the Kentucky exception varies over time - see Peterslie v NC, 1993 State v.
Petersilie, 432 S.E.2d 832 (1993), 334 N.C. 169. 1995 Wilkinson v. Jones, 876
F. Supp. 916 (W.D. Ky. 1995) [Freedom Forum v FEC was an express advocacy case;
plaintiff did not refer to talley or mcintyre.] 2012 Vermont v. Green Mountain
Future, 2012 VT 87. N carolina peterslie merits. Talley mcintyre aclf
watchtower Barnette Wooley tornillo riley Aid v open society janus nifla v
beccera , the Supreme Court has repeatedly held that the “freedom of speech
prohibits the government from telling people what they must say.” Agency for
Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., 570 U.S. 205, 213 (2013)
Janus v. Am. Fed’n of State, Cnty. & Mun. Emps., Council 31, 138 S. Ct.
2448, 2463 (2018) 1 sentence from each. Other L.D. Management Co. v. Gray, No.
20-5547 (6th Cir. 2021) Ky case about billboards, lion’s den
https://www.justice.gov/opa/press-release/file/1252601/download ky wedding
photographer, brief by usa. The Supreme Court has made plain that the
government cannot “[c]ompel[] individuals to mouth support for views they find
objectionable.” Janus v. Am. Fed’n of State, Cnty. & Mun. Emps., Council
31, 138 S. Ct. 2448, 2463 (2018). Just last year, in fact, the Eighth Circuit
held that Minnesota could not force wedding videographers to film weddings that
they did not wish to film. Telescope Media Grp. v. Lucero, 936 F.3d 740,
750-758 (8th Cir. 2019). The same principle applies here.
Timeline
of the split - a non-exhaustive list of cases that refused to follow Talley.
Table
1.
1.
1973 Insco, dcmd fla
2.
1976 Moorefield v Moore, KY
3.
1982 TN v Acey, TN
4.
1993 NC v Petersilie, NC
5.
1994 McIntyre v. OH (overruled), OH
6.
1995 Wilkinson v Jones, KY
7.
1997 KY RTL v Terry, 6th
8.
1997 Arkansas Right to Life v. Butler, 29 F. Supp.2d 540
9.
1998 Gable v Patton, 6th
10.
2000 Seymour v Ct, CT
11.
2001 Public Citizen v FEC, 11th
12.
2003, 2004 Majors v Abell, 7th
13.
2012, NOM v McKee, 1st.
14.
2012 VT v Green Mountain Future, VT.
15.
2013, Worely v Roberts 749 F. Supp. 2d 1321 (N.D. Fla. 2010) (better cite,
11th?)
16.
2015 Iowa Right to Life Comm., Inc. v. Tooker 133 F. Supp. 3d 1179 (S.D. Iowa
2015)(corporations)
17.
2019 Lewison v. Hutchinson, 929 N.W.2d 444 (Minn. Ct. App. 2019)
18.
2020, 2021, Gaspee Project v Mederos. First
19
Helzer, Alaska, not final, injunction denied.
20.
San Franciscans (9th Cir 2023.)
21
CAP and Arizona Free Enterprise v Secretary of State, (2023), Americans for
Prosperity v.
Additionally,
there have been attorney general opinions in at least Delaware and Nebraska. So
on one side of the split there are 21 cases from the First, Sixth, Seventh, and
11th circuits, plus CT, KY, NC, TN, VT, plus AGOs in at least NE and DE. On the
other side are at least 50 cases from a number of jurisdictions. This includes
at least the 9th Circuit, 10th, and the states of WA, OR, LA, MA, ME, DE, CO,
CA, NY, IL, ID, ND, TX. So there is a significant split, that this court should
attempt to resolve. Wilson v Stocker, Heller v ACLU of Nevada, 9th (and see
Yamada),
Table
2: Cases which follow Talley v California.
1
ACLU v Heller, 378 F3d 979 (9th Cir. 2004),
2
American Civil Liberties Union of Ga. v. Miller, 977 F.Supp. 1228 (N.D. Ga.
1997),
3
Anonymous v. Delaware, 2000 Del. Ch. Lexis 84 (2000),
4
Broward Coalition v Browning, 2008 WL 4791004 (N.D. Fl 2008), [Buckley v.
American Constitutional Law Found., 525 U.S 182, 200, 119 S.Ct 636, 142 L.Ed.2d
599 (1999),]
4.5
Brush and Nib v. Phoenix (AZ 2019)
5
City of Bogalusa v. May, 212 So.2d 408 (La. 1968),
6
Commonwealth v Dennis, 368 Mass. 92, 329 N.E.2d 706 (1974),
7
Cyberspace v Engler, (E.D.MI 2001)
8
Doe v 2theMart, 140 F.Supp.2d 1088, 29 Media L. Rep. 1970 (2001),
9
Doe v. Mortham, 708 So.2d 929 (Fla.1998)
10
Ex Parte Harrison, 110 S.W. 709 (Mo 1908), 11 Griset v. Fair Political
Practices Commission, 69 Cal. App. 4th 818, 82 Cal. Rptr.2d 25 (1999), reversed
on other grounds, 14 [Hansen v. Westerville City Sch. Dist., Nos. 93-3231,
93-3303, 1994 WL 622153 (6th Cir. Nov. 7, 1994), unpublished opinion, cert.
denied 115 S. Ct. 2611 (1995).
http://bulk.resource.org/courts.gov/c/F3/43/43.F3d.1472.93-3303.93-3231.html, ]
12
Idaho v. Barney, 448 P.2d 195 (1968), 14, 23 13 Illinois v White, 506 NE2d 1284
(Ill. 1987),
14
In re Opinion of the Justices, 324 A.2d 211 (Del. 1974),
15
Louisiana. v. Moses, 655 So. 2d 779 (La. Ct. App. 1995),
16
Louisiana v. Fulton, 337 So.2d 866 (La. 1976), [McIntyre v. Ohio Elections
Comm'n, 514 U.S. 334, 357, 115 S.Ct. 1511, 131 L.Ed.2d 426 ](1995), 6, 8, 10,
11, 12, 17, 18, 21, 23 [Miami Herald v Tornillo, 418 U.S. 241 (1974)]
17
Michael James Berger, aka Magic Mike v. City of Seattle, (9th Cir. 6/24/2009) ,
18
Mulholland v. Marion County Election Bd. (S.D. Ind __) [NAACP v. Alabama, 357
U.S. 449, 463, 78 S.Ct. 1163, 1172, 2 L.Ed.2d 1488 (1958)] 19 New York v.
Duryea, 351 NYS2d 978 (1974), 20 Ogden v. Marendt, 264 F.Supp. 2d 785 (S.D.
Ind. 2003) (S.D. Ind 2004),
21
Opinion of the Justices, 306 A.2d 18 (Maine 1973),
22
People v Drake, (Cal.),
23
People v. Bongiorni, 205 Cal. App. 2d Supp. 856 (Sup. Ct. 1962), 13
24
Printing Industries of the Gulf Coast v. Hill, 382 F.Supp. 8011 (S.D.Tx 1974),
42 L.Ed.26 33 dismissed as moot, [Riley v. Federation of the Blind, 487 U.S.
781 (1998)]
25
Rosen v. Port of Portland, 641 F.2d 1243, 1246 (9th Cir.1981),
26
Schuster v. Imperial County Mun. Ct., 167 Cal. Rptr. 447 (Cal. Ct. App. 1980),
cert. denied, 450 U.S. 1042, 14, 23
27
ShrinkMO v. Maupin, 892 F. Supp. 1246 (E.D. Mo. 1995), aff'd, 71 F.3d 1422,
28
Smithers v Fla. Elections, http://www.fec.state.fl.us/decisions/Smithers96-85.PDF,
29
State of Louisiana v. Burgess, 543 So.2d 1332 (1989),
30
State v. N. Dakota Ed. Assoc., 262 N.W.2d 731 (N.D. 1978),
31
Stewart v Taylor, 953 F.Supp.1047 (S.D.Ind.1997),
32
Tattered Cover (CO), [Talley v. California, 362 U.S. 60, 65, 80 S.Ct. 536, 4
L.Ed.2d 559 (1960)] 33 Texas v. John Doe, 61 S.W.3d 99, (Tx.App. 2001)
34
Town of Lantana v Pelczynski, 290 So. 2d 566 (Fla. App. 1974),
35
Vermont Right to Life v. Sorrell, 221 F.3d 376, 392 (2d Cir. 2000),
36
Virginia Society for Human Life Inc. v. Caldwell, 152 F3d 268 (4th Cir. 1998),
37
Washington ex rel. Public Disclosure v. 119 Vote No!, 957 P.2d 691 1998),
[Watchtower v Stratton, 536 U.S. 150 (2002)]
38
West Virginians for Life v Smith, 919 F. Supp 954 (S.D.W.Va. 1996), 960 F Supp
1036 (1996), 39 Wilson v Stocker, 819 F.2d 943, (10th Cir. 1999), [Wooley v
Maynard, 430 U.S. 705 (1977)],
40
Yes to Life PAC v. Webster,
http://www.med.uscourts.gov/opinions/Hornby/2000/DBH_02072000_2-99cv318_YES_PAC_V_WEBSTER.pdf
,
41
Peter Zenger’s case, http://www.law.umkc.edu/faculty/projects/Ftrials/zenger/zenger.html
42
Zwickler v. Koota, 290 F. Supp. 244 (E. D. N. Y. 1968), vacated on mootness
grounds sub nom. Golden v. Zwickler, 394 U.S. 103 (1969),
Oregon
Attorney General Opinion 8266.
[42.5]
Citizens for Responsible Gov't State PAC v. Davidson, 236 F.3d 1174, (10th Cir.
2000) So this includes at least the 9th Circuit, 10th, and the states of WA,
OR, LA, MA, ME, DE, CO, CA, NY, IL, ID, ND, TX. So there is a significant
split, that this court should attempt to resolve.
43.
In re Ind. Newspapers, Inc., No. 49A02-1103-PL-23, ___ N.E.2d ___ (Ind. Ct.
App., Feb. 21, 2012).(Indiana constitution and First Amendment.)
44.
Dendrite
45.
Doe v Cahill (Del.)
46.
Digital Music News LLC v. Superior Court (Cal. Ct. App. May 14, 2014)
(California constitutional right to privacy).
47.
It is well-settled that “an author's decision to remain anonymous, like other
decisions concerning omissions or additions to the content of a publication, is
an aspect of the freedom of speech protected by the First Amendment.” In re
Anonymous Online Speakers, 661 F.3d 1168, 1173 (9th Cir. 2011) 48. Hartman v
O'Connor 1:20cv163 (S.D. Ohio Sep. 29, 2021)(judicial speech withstood strict
scrutiny)
49.
Minn. Citizens Concerned for Life, Inc. v. Kelley, 291 F.Supp.2d 1052, 1069
(D.Minn. 2003), aff'd in part, rev'd in part, 427 F.3d 1106 (8th Cir. 2005).
50.
Riley v. Jankowski, 713 N.W.2d 379 (Minn. Ct. App. 2006).
Table
3, table 2 cleaned up
Gaspee
project v mederoz notes for amivus [to do: find a template for amicus] Reasons
for cert Circuit split. After talley footnote two After mcintyre After aclf
Citizens caused confusion. First case for bonta. The instant case conflicts
with about a dozen supreme court cases about compelled speech, and undermines
the authority of the court’s precedents. Summary of argument: This case
presents two issues, one about disclosure, a close case, and one about
disclaimers, a plain error the court should reverse. This brief is about the
disclaimer issue. This is the first case to attempt to apply the new standard
announced in Bonta, and maybe gets it wrong, so the court could take it for
that reason, to further explicate the new Bonta standard. In Bonta, several concurring
opinions suggested that a stricter yet scrutiny may be needed. This case would
be an opportunity to address those concerns. This brief first details the
circuit split on whether censorship by disclaimer is constitutional, as a
reason to take the case to resolve the split. In Citizens United, 2010, the
court issued dicta 8-1 praising such censorship, in the limited context of
corporate speech, after ruling 9-0 in buckley v aclf that disclaimer rules are
unconstitutional, so lower courts have been confused and the split widened. The
Court should clarify that what it meant in Citizens was limited to corporate
speech and was not the holding of the case. Town of Vincent v Reed, holding
that political sign rules get strict scrutiny, should have cleared this up, but
didn’t. Something like Cooper v Aaron is needed to clear the air and settle the
matter. The second part of the brief addresses the merits of the disclaimer
claim, and argues that Talley and McIntyre should be followed, not ignored.
Ideally, the court should give plaintiffs some kind of teeth, so that officials
who defy Talley can be penalized, and plaintiffs who challenge the obstacles to
democratic process can be rewarded. An endless cycle of injunctions is not
enough. Currently, election officials have little incentive to follow the law,
rather than the statutes, or their own personal political preferences. This is
corruption and oathbreaking, and prevents free and open elections, leaving the
form, but not the substance. Talley v California in 1960 announced a rule that
the government may not require disclaimers on literature such as a political
flier. Yet in McIntyre, footnote 2 of Justice Scalia’s dissent indicate that
nearly 50 states had such rules. (A number of these rules had already been found
unconstitutional, which Scalia neglected to mention.) The majority of courts
followed Talley, but a minority refused; there has been a split in the circuits
ever since, a split that continues today as Gaspee Project shows. McIntyre was
intended to resolve the split, holding that strict scrutiny applies and that
there is no election exception to the rule in Talley. The Ohio Supreme Court
had erred in applying intermediate scrutiny under Valeo, and allowing
censorship by requiring disclaimers, over a dissent. Buckley v ACLF carefully
distinguished between disclaimers, which get strict scrutiny, and disclosure,
which got Valeo’s permissive “exacting” scrutiny. This was a case about a
petition drive to legalize marijuana in Colorado. And yet the split continued.
In McConnell, the court denied one particular as-applied challenge to a
disclaimer, where the argument was that the statement in question was not
express advocacy. The court disagreed. Justice Thomas, dissenting, would have
applied McIntyre. In McConnell, the Court, at note 88, stated that McIntyre was
still good law. Nonetheless, this confused Judge Posner at the 7th circuit, in
Majors v Abell, and the split continued. [possibly quote posner about
indeterminacy.] Zwickler v Golden, 1969 disclaimer case improperly dismissed on
mootness grounds. Zwickler’s congressman had become a judge, but Zwickler was
still going to write to his new congressman about his position on Israel, so
the case wasn’t really moot. This confusion became worse after Citizens United,
discussed below. [make list by year of the cases on the wrong side of the
split.] Notably, the federal election Commission has continued to try to
enforce disclaimer rules contrary to the rule in talley, and has an ongoing
controversy about to what extent to apply these rules to the internet. They
seek to “burn the village to roast the pig.” Reno v ACLU. The FEC often
deadlocks, with the gop members refusing to enforce the unconstitutional
disclaimer rules, while the democratic members keep trying. It is important
that the court resolve the issue in a way the FEC must follow, and cease its
improper censorship of federal elections. Similarly at the FCC, which censors
speech on radio and TV. Ct. case. 255 C. 78. Seymour v. Elections Enforcement
Comm. Supreme Court of Connecticut. Dec 19, 2000. 762 A.2d 880 (Conn. 2000)
Riley in kenticky v terry? Kentucky Right To Life, Inc. v. Terry, 108 F.3d 637
(6th Cir.1997), cert denied, 522 U.S. 860, 118 S.Ct. 162, 139 L.Ed.2d 106
(1997). Gable v patton https://caselaw.findlaw.com/us-6th-circuit/1396718.html
Ky.Rev.Stat. § 121.190(1) Worely Worley, et al. v. FL Secretary of State, et
al., No. 12-14074 (11th Cir. 2013) Nom v mckee Public citizen 11th circuit
https://www.fec.gov/legal-resources/court-cases/fec-v-public-citizen-inc/
Majors v abell State v acey 633 S.W.2d 306 (1982)
https://law.justia.com/cases/tennessee/supreme-court/1982/633-s-w-2d-306-2.html
Wilkinson? Green mountain futures Morefield v. Moore, 540 S.W.2d 873 (1976)
Supreme Court of Kentucky. Zwickler v. Coota, 290 F. Supp. 244
(D.C.E.D.N.Y.1968), In United States v. Insco, 365 F. Supp. 1308
(D.C.M.D.Fla.1973), a Florida statute made it a criminal offense to publish or
distribute any "writing or other statement" relating to or concerning
a candidate for election to the federal Congress unless it contained the name
or names of the persons or organizations responsible for it. Jack P. Insco, a
Republican, and William Gunter, a Democrat, were the nominees of their
respective parties for election to the House of Representatives in 1972, a
presidential year. Insco was indicted for causing to be distributed a quantity
of bumper stickers reading "McGOVERN-GUNTER"[3] which did not bear
the name of the sponsor. On a motion to dismiss the indictment the federal
district court held that Talley did not apply and that the statute did not
violate the First Amendment. 1 Morefield v Moore, 2 Wilkinson v Jones, 3 KY RtL
v terry, 4 Gable v Patton, Freedom Forum v FEC are examples of cases where
Kentucky courts have refused to Follow the rule in Talley. The geographic scope
of the Kentucky exception varies over time - see Peterslie v NC, State v.
Petersilie, 432 S.E.2d 832 (1993), 334 N.C. 169. Wilkinson v. Jones, 876 F.
Supp. 916 (W.D. Ky. 1995) [Freedom Forum v FEC was an express advocacy case;
plaintiff did not refer to talley or mcintyre.] Vermont v. Green Mountain
Future, 2012 VT 87. N carolina peterslie merits. Talley mcintyre aclf
watchtower Barnette Wooley tornillo riley Aid v open society janus nifla v
beccera , the Supreme Court has repeatedly held that the “freedom of speech
prohibits the government from telling people what they must say.” Agency for
Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., 570 U.S. 205, 213 (2013)
Janus v. Am. Fed’n of State, Cnty. & Mun. Emps., Council 31, 138 S. Ct.
2448, 2463 (2018) 1 sentence from each. Other L.D. Management Co. v. Gray, No.
20-5547 (6th Cir. 2021) Ky case about billboards, lion’s den
https://www.justice.gov/opa/press-release/file/1252601/download ky wedding
photographer, brief by usa. The Supreme Court has made plain that the
government cannot “[c]ompel[] individuals to mouth support for views they find
objectionable.” Janus v. Am. Fed’n of State, Cnty. & Mun. Emps., Council
31, 138 S. Ct. 2448, 2463 (2018). Just last year, in fact, the Eighth Circuit
held that Minnesota could not force wedding videographers to film weddings that
they did not wish to film. Telescope Media Grp. v. Lucero, 936 F.3d 740,
750-758 (8th Cir. 2019). The same principle applies here. 2000 Ct. case. 255 C.
78. Seymour v. Elections Enforcement Comm. Supreme Court of Connecticut. Dec
19, 2000. 762 A.2d 880 (Conn. 2000) 1997 Riley in kenticky v terry? Kentucky
Right To Life, Inc. v. Terry, 108 F.3d 637 (6th Cir.1997), cert denied, 522
U.S. 860, 118 S.Ct. 162, 139 L.Ed.2d 106 (1997). 1998 Gable v patton
https://caselaw.findlaw.com/us-6th-circuit/1396718.html Ky.Rev.Stat. § 121.190(1)
2013 Worley, et al. v. FL Secretary of State, et al., No. 12-14074 (11th Cir.
2013) 2012 Nom v mckee National Organization for Marriage v. McKee, 723 F.
Supp. 2d 245 2012. 2001 Public citizen 11th circuit
https://www.fec.gov/legal-resources/court-cases/fec-v-public-citizen-inc/
Majors v abell Majors v Abell, 317 F.3d 719 (7th Cir. 2003), 1982 State v acey
633 S.W.2d 306 (1982)
https://law.justia.com/cases/tennessee/supreme-court/1982/633-s-w-2d-306-2.html
Wilkinson? Green mountain futures 1976 Morefield v. Moore, 540 S.W.2d 873
(1976) Supreme Court of Kentucky. Zwickler v. Coota, 290 F. Supp. 244
(D.C.E.D.N.Y.1968), 1973 In United States v. Insco, 365 F. Supp. 1308
(D.C.M.D.Fla.1973), a Florida statute made it a criminal offense to publish or
distribute any "writing or other statement" relating to or concerning
a candidate for election to the federal Congress unless it contained the name
or names of the persons or organizations responsible for it. Jack P. Insco, a
Republican, and William Gunter, a Democrat, were the nominees of their
respective parties for election to the House of Representatives in 1972, a
presidential year. Insco was indicted for causing to be distributed a quantity
of bumper stickers reading "McGOVERN-GUNTER"[3] which did not bear
the name of the sponsor. On a motion to dismiss the indictment the federal
district court held that Talley did not apply and that the statute did not
violate the First Amendment. 1 Morefield v Moore, 2 Wilkinson v Jones, 3 KY RtL
v terry, 4 Gable v Patton, Freedom Forum v FEC are examples of cases where
Kentucky courts have refused to Follow the rule in Talley. The geographic scope
of the Kentucky exception varies over time - see Peterslie v NC, 1993 State v.
Petersilie, 432 S.E.2d 832 (1993), 334 N.C. 169. 1995 Wilkinson v. Jones, 876
F. Supp. 916 (W.D. Ky. 1995) [Freedom Forum v FEC was an express advocacy case;
plaintiff did not refer to talley or mcintyre.] 2012 Vermont v. Green Mountain
Future, 2012 VT 87. N carolina peterslie merits. Talley mcintyre aclf
watchtower Barnette Wooley tornillo riley Aid v open society janus nifla v
beccera , the Supreme Court has repeatedly held that the “freedom of speech
prohibits the government from telling people what they must say.” Agency for
Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., 570 U.S. 205, 213 (2013)
Janus v. Am. Fed’n of State, Cnty. & Mun. Emps., Council 31, 138 S. Ct. 2448,
2463 (2018) 1 sentence from each. Other L.D. Management Co. v. Gray, No.
20-5547 (6th Cir. 2021) Ky case about billboards, lion’s den
https://www.justice.gov/opa/press-release/file/1252601/download ky wedding
photographer, brief by usa. The Supreme Court has made plain that the
government cannot “[c]ompel[] individuals to mouth support for views they find
objectionable.” Janus v. Am. Fed’n of State, Cnty. & Mun. Emps., Council
31, 138 S. Ct. 2448, 2463 (2018). Just last year, in fact, the Eighth Circuit held
that Minnesota could not force wedding videographers to film weddings that they
did not wish to film. Telescope Media Grp. v. Lucero, 936 F.3d 740, 750-758
(8th Cir. 2019). The same principle applies here. Timeline of the split - a
non-exhaustive cases that refused to follow Talley. 1. 1973 Insco, dcmd fla 2.
1976 Moorefield v Moore, KY 3. 1982 TN v Acey, TN 4. 1993 NC v Petersilie, NC
5. 1994 McIntyre v. OH (overruled), OH 6. 1995 Wilkinson v Jones, KY 7. 1997 KY
RTL v Terry, 6th 8. 1997 Arkansas Right to Life v. Butler, 29 F. Supp.2d 540 9.
1998 Gable v Patton, 6th 10. 2000 Seymour v Ct, CT 11. 2001 Public Citizen v
FEC, 11th 12. 2003, 2004 Majors v Abell, 7th 13. 2012, NOM v McKee, 1st. 14.
2012 VT v Green Mountain Future, VT. 15. 2013, Worely v Roberts 749 F. Supp. 2d
1321 (N.D. Fla. 2010) (better cite, 11th?) 16. 2015 Iowa Right to Life Comm.,
Inc. v. Tooker 133 F. Supp. 3d 1179 (S.D. Iowa 2015)(corporations) 17. 2019
Lewison v. Hutchinson, 929 N.W.2d 444 (Minn. Ct. App. 2019) 18. 2020, 2021,
Gaspee Project v Mederos. First Additionally, there have been attorney general
opinions in at least Delaware and Nebraska. So on one side of the split there
are 16 cases from the First, Sixth, Seventh, and 11th circuits, plus CT, KY,
NC, TN, VT, plus AGOs in at least NE and DE. On the other side are at least 43
cases from a number of jurisdictions. This includes at least the 9th Circuit,
10th, and the states of WA, OR, LA, MA, ME, DE, CO, CA, NY, IL, ID, ND, TX. So
there is a significant split, that this court should attempt to resolve. Wilson
v stocker, Heller v ACLU of Nevada, 9th (and see Yamada),
1
ACLU v Heller, 378 F3d 979 (9th Cir. 2004),
2
American Civil Liberties Union of Ga. v. Miller, 977 F.Supp. 1228 (N.D. Ga.
1997),
3
Anonymous v. Delaware, 2000 Del. Ch. Lexis 84 (2000),
4
Broward Coalition v Browning, 2008 WL 4791004 (N.D. Fl 2008),
5
City of Bogalusa v. May, 212 So.2d 408 (La. 1968),
6
Commonwealth v Dennis, 368 Mass. 92, 329 N.E.2d 706 (1974),
7
Cyberspace v Engler, (E.D.MI 2001)
8
Doe v 2theMart, 140 F.Supp.2d 1088, 29 Media L. Rep. 1970 (2001),
9
Doe v. Mortham, 708 So.2d 929 (Fla.1998)
10
Ex Parte Harrison, 110 S.W. 709 (Mo 1908), 11 Griset v. Fair Political
Practices Commission, 69 Cal. App. 4th 818, 82 Cal. Rptr.2d 25 (1999), reversed
on other grounds,
11.5.
[Hansen v. Westerville City Sch. Dist., Nos. 93-3231, 93-3303, 1994 WL 622153
(6th Cir. Nov. 7, 1994), unpublished opinion, cert. denied 115 S. Ct. 2611
(1995). [facts behind mcintyre case.]
http://bulk.resource.org/courts.gov/c/F3/43/43.F3d.1472.93-3303.93-3231.html,
]
12
Idaho v. Barney, 448 P.2d 195 (1968), 14, 23 13 Illinois v White, 506 NE2d 1284
(Ill. 1987),
14
In re Opinion of the Justices, 324 A.2d 211 (Del. 1974),
15
Louisiana. v. Moses, 655 So. 2d 779 (La. Ct. App. 1995),
16
Louisiana v. Fulton, 337 So.2d 866 (La. 1976),
17
Michael James Berger, aka Magic Mike v. City of Seattle, (9th Cir. 6/24/2009) ,
18
Mulholland v. Marion County Election Bd. (S.D. Ind __)
19
New York v. Duryea, 351 NYS2d 978 (1974), 20 Ogden v. Marendt, 264 F.Supp. 2d
785 (S.D. Ind. 2003) (S.D. Ind 2004),
21
Opinion of the Justices, 306 A.2d 18 (Maine 1973),
22
People v Drake, (Cal.),
23
People v. Bongiorni, 205 Cal. App. 2d Supp. 856 (Sup. Ct. 1962), 13
24
Printing Industries of the Gulf Coast v. Hill, 382 F.Supp. 8011 (S.D.Tx 1974),
42 L.Ed.26 33 dismissed as moot.
25
Rosen v. Port of Portland, 641 F.2d 1243, 1246 (9th Cir.1981),
26
Schuster v. Imperial County Mun. Ct., 167 Cal. Rptr. 447 (Cal. Ct. App. 1980),
cert. denied, 450 U.S. 1042, 14, 23
27
ShrinkMO v. Maupin, 892 F. Supp. 1246 (E.D. Mo. 1995), aff'd, 71 F.3d 1422,
28
Smithers v Fla. Elections, http://www.fec.state.fl.us/decisions/Smithers96-85.PDF,
29
State of Louisiana v. Burgess, 543 So.2d 1332 (1989),
30
State v. N. Dakota Ed. Assoc., 262 N.W.2d 731 (N.D. 1978),
31
Stewart v Taylor, 953 F.Supp.1047 (S.D.Ind.1997),
32
Tattered Cover (CO),
33
Texas v. John Doe, 61 S.W.3d 99, (Tx.App. 2001)
34
Town of Lantana v Pelczynski, 290 So. 2d 566 (Fla. App. 1974),
35
Vermont Right to Life v. Sorrell, 221 F.3d 376, 392 (2d Cir. 2000),
36
Virginia Society for Human Life Inc. v. Caldwell, 152 F3d 268 (4th Cir. 1998),
37
Washington ex rel. Public Disclosure v. 119 Vote No!, 957 P.2d 691 1998),
38
West Virginians for Life v Smith, 919 F. Supp 954 (S.D.W.Va. 1996), 960 F Supp
1036 (1996), 39 Wilson v Stocker, 819 F.2d 943, (10th Cir. 1999),
40
Yes to Life PAC v. Webster,
http://www.med.uscourts.gov/opinions/Hornby/2000/DBH_02072000_2-99cv318_YES_PAC_V_WEBSTER.pdf
,
41
Peter Zenger’s case, http://www.law.umkc.edu/faculty/projects/Ftrials/zenger/zenger.html
42
Zwickler v. Koota, 290 F. Supp. 244 (E. D. N. Y. 1968), vacated on mootness
grounds sub nom. Golden v. Zwickler, 394 U.S. 103 (1969),
Oregon
Attorney General Opinion 8266.
Citizens
for Responsible Gov't State PAC v. Davidson, 236 F.3d 1174, (10th Cir. 2000)
43.
In re Ind. Newspapers, Inc., No. 49A02-1103-PL-23, ___ N.E.2d ___ (Ind. Ct.
App., Feb. 21, 2012).
44.
Dendrite
45.
Doe v Cahill (Del.)
46.
Digital Music News LLC v. Superior Court (Cal. Ct. App. May 14, 2014)
(California constitutional right to privacy).
47.
In re Anonymous Online Speakers, 661 F.3d 1168, 1173 (9th Cir. 2011)
48.
Hartman v O'Connor 1:20cv163 (S.D. Ohio Sep. 29, 2021)(judicial speech
withstood strict scrutiny)
49.
Minn. Citizens Concerned for Life, Inc. v. Kelley, 291 F.Supp.2d 1052, 1069
(D.Minn. 2003), aff'd in part, rev'd in part, 427 F.3d 1106 (8th Cir. 2005).
50.
Riley v. Jankowski, 713 N.W.2d 379 (Minn. Ct. App. 2006)
Table
4: Cases under state constitutions.
These
cases include AZ, CA, CO, DE, FL, ID, IL, IN, LA, MO, ND, NY, and [OH], at
least 13 states.
[reorder
by date or alphabetical]
1
Commonwealth v Dennis, 368 Mass. 92, 329 N.E.2d 706 (1974),
2
Doe v. Mortham, 708 So.2d 929 (Fla.1998)
3
Ex Parte Harrison, 110 S.W. 709 (Mo 1908),
4
Idaho v. Barney, 448 P.2d 195 (1968),
5
Illinois v White, 506 NE2d 1284 (Ill. 1987),
6
In re Opinion of the Justices, 324 A.2d 211 (Del. 1974),
7
Louisiana. v. Moses, 655 So. 2d 779 (La. Ct. App. 1995),
8
Louisiana v. Fulton, 337 So.2d 866 (La. 1976),
9
New York v. Duryea, 351 NYS2d 978 (1974),
10
Opinion of the Justices, 306 A.2d 18 (Maine 1973),
11
Schuster v. Imperial County Mun. Ct., 167 Cal. Rptr. 447 (Cal. Ct. App. 1980),
cert. denied, 450 U.S. 1042,
12
State of Louisiana v. Burgess, 543 So.2d 1332 (1989),
13
State v. N. Dakota Ed. Assoc., 262 N.W.2d 731 (N.D. 1978),
14
Tattered Cover (CO),
15
Washington ex rel. Public Disclosure v. 119 Vote No!, 957 P.2d 691 1998), [did
this case address state claims?]
16
Peter Zenger’s case, http://www.law.umkc.edu/faculty/projects/Ftrials/zenger/zenger.html
(1735)
Oregon
Attorney General Opinion 8266.
17.
In re Ind. Newspapers, Inc., No. 49A02-1103-PL-23, ___ N.E.2d ___ (Ind. Ct.
App., Feb. 21, 2012).
18.
Digital Music News LLC v. Superior Court (Cal. Ct. App. May 14, 2014)
(California constitutional right to privacy).
[19.
Ohio, a lockstep state, considers McIntyre v Ohio Elections Commission as determinative
of the state constitutional issue.]
20.
Brush and Nib v Phoenix, (AZ 2019)
5
pm to 6:04, 9/6/2023 so is that 6 hours today?