Here is a very rough first draft of a lie list for the state's response to a motion for TRO in the Mississippi disclaimer case discussed here yesterday.
[a "lie list" is just shop talk for a list of legal or factual errors in a document; not all such errors are intentional. some people call this process 'fisking' or maybe it's Fisking.] this part is just the list; explaining why each point is wrong is a longer part II to follow. update: I wrote part II, but i didnt save it to the cloud, and i stepped on my laptop, breaking the screen, so i'll have to re-write it, and so far (9/14) I haven't.
first draft. Needs to be more consistent how it lists the lies.
first,the AG is to be commended for putting together the 20 page memorandum in one day.
It is understandable under the circumstances that there are errors of fact and law.
There are at least 19 false statements of law or fact in this filing. Part I lists them. Part II explains each.
Part 3 lists true statements of law or fact that are then used to try to mislead the court into error.
Part 4 explains each.
Part 5 presents and overview of the case, in order to attempt to correct the misleading picture painted by the state.
1 Lie # 1, p.1. : Plaintiffs claims lack a likelihood of success on the merits
Plaintiffs have a high likelihood of success on the merits. Any of 6 Supreme Court precedents are controlling. Talley, McIntyre, Buckley v ACLF, Watchtower v Stratton, Wooley v Maynard, Riley v Federation of the Blind, Tornillo v Miami Herald, each stand for the proposition that the government may not compel speech. Talley and McIntyre deal specifically with the issue of identification disclaimers on campaign literature.
The strongest authority to the contrary, Citizens United, is readily distinquishable and inapplicable to the question of law here.
5th circuit precedent is controlling as well.
Further, the statute violates the state constitution and is void for that reason, so there is no state interest left to be balanced against the federal interests in free speech and free elections.
2 Referring to the statute as a “law”. p.1. The fundamental principle of american law, from Marbury v Madison, is that an unconstitutional statute is not law, but is void ab initio. “There is no public interest in the enforcement of an unconstitutional statute.” ( for now, just list, explain later.)
3 “The 1st A protects a voter's right to know” p.2
4 Bait and switch of mixing up disclosure and disclaimer. p.3.
5 “In fact, Madison County voters have a well-established right to know that information.” p.3.
6 Disclaimer rules are an integral part of disclosure regimes. pp. 3, 6.
7 The constitutionality of disclaimer rules is well established. p.4.
8 Citizens United has not “officially reaffirmed the constitutionality of the” federal disclaimer rule. Pp 4-5. @ Like a previous challenge in McConnell v FEC, plaintiffs lost on their particular theory, an express advocacy argument, but this does not mean other different challenges will not prevail. The instant case is not premised on any express advocacy argument, although the statute would be vulnerable to one since it is vague and overbroad in the way addresesd in Buckley v Valeo, a case defendants rely on heavily. Further, CU only discussed corporate speech previously banned under Austin, not, as here, nearly all election speech.
9. Plaintiff's reliance on McIntyre is not misplaced. pp.5,13.
10. McIntyre's target audience was not just the members of the school board, but the voters who defeated the bond levy twice before it passed on a third try. p.5.
11. CU removed any doubt about the constitutionality of disclaimer rules. p.9.
12 Buckley v Valeo did not address disclaimers in the cited passages.
13 Similarly, Buckley v ACLF reached opposite conlusions about the onstitututionality of disclaimers and disclosure, so the cited section is out of context and misrepresents the holding of the case. p.12.
14 “such disclaimers do not limit speech.” p.13.
15 “ their constitutionality is not in doubt” p.13.
16 McIntyre is simply inapplicable to requiring disclaimers on traditional election advertisements about candidates. Pp13-14.
17 “state law” p. 14.
18 unquestionably constitutional. p.16.
19 conflict with CU p. 16
20 oh wow, only 19 lies, unless I missed one.
need a section on fats and law that is true, but used to try to mislead the court.first draft. Needs to be more consistent how it lists the lies.
