ok, I will now be using this blog to collect info for the Indiana suits about 3-9-3-2.5.

 

7:27 9/6/2023.

Caption

John doe v carroll county election board et al.

Motion for partial summary judgment

Draft only do not file.

Comes now plaintiff by counsel and for their motion for partial summary judgment states as follows.

Plaintiff has filed their complaint, claiming that Indiana’s political sign disclaimer statute, IC 3-9-3.2.5, and the county’s policies, violate the state and federal constitutions. The county has answered, generally denying everything and raising affirmative defenses.

Summary judgment is appropriate when the questions are solely matters of law. The parties agree on the material facts as relevant here.

It is a basic maxim of law that federal constitutional issues should be avoided when a decision can be reached as a matter of state law. This is true here, even though there is substantial overlap between the state and federal claims; both involve similar claims of free speech, free press, privacy, association, and the right to free and open elections.

A decision on the state law issues will help to narrow the dispute and perhaps lead to the case being resolved without having to proceed to fully litigate the federal issues.

Plaintiff claims, in count 1, that the statute violates the first clause of article 1 section 9, in count 2 that it violates the second clause of article I section 9, in count 3 that the violates article 1 as a whole, including sections 1,2,9,11,12, and 31, and in count 4 that it violates article 2 section 1, the right to free and equal elections.

Factors which aid in interpreting the Indiana constitution include the text, history, case law, analogous federal case law, and decisions from other states.

This filing will follow that format, arguing that the text, case law, analogous federal case law, and decisions based on other state constitutions each supports finding for plaintiffs.

The text of count 1 has a plain meaning, to which this court can give affect, by finding that Plaintiff’s proposed signs, such as “Vote for Smith” are speech protected by the first clause of section 9. It seems to be a case of first impression as to whether the first clause is an independent source of law distinct from the second clause.

  Clause 1 No law shall be passed, restraining the free interchange of thought and opinion

 Clause 2 or restricting the right to speak, write, or print,

freely, on any subject whatever:

clause 3. but for the abuse of that right, every person shall be responsible.

In Price v Indiana, 1993, the leading case on section 9, the court did not opt for a plain meaning,  but made two variations on the plain meaning of the text. First, it found that the abuse clause modifies both the first and second clauses, and second, it gave heightened protection to political speech, a distinction not present in the text.

The speech here, such as “Vote for Smith”,  is undeniably political. Under Price, it receives strict scrutiny. There is no compelling state interest in criminalizing political speech about elections. Doing so would undermine the integrity of the election process. Perhaps the legislators would like to know who is speaking against or for them, but this does not amount to a compelling state interest.

Two additional state cases shed some light on the issue. In re Ind. Newspapers, Inc., No. 49A02-1103-PL-23, ___ N.E.2d ___ (Ind. Ct. App., Feb. 21, 2012). Majors v Abell (Ind 2003) construed section 2-3-9-2.5, on a certified question from the 7^th circuit. Majors declined to address questions of state constitutional law, and did not express any opinions about its federal constitutionality, because that was not the question before it. The sole issue was whether 3-9-3-2.5 affects everyone, or whether it is limited to candidates and committees. The court found that it affects everyone. This was relevant to whether Majors had standing and a justiciable controversy.  Majors has little to say about whether the statute violates either constitution, but is mentioned here as the leading state law authority on the statute.

In re Indiana newspapers Inc. a case of first impression on the right to anonymous speech under the Indiana constitution, applied a modified Dendrite standard to the discovery of the identity of a commented at the Indianapolis star’s website. This requires a libel plaintiff to make a prima facie case before engaging in discovery.

Anonymous speech has played an important role in the history of this country. “Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy or of dissent.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 356 (1995). This First Amendment protection has been extended to material on the internet as well. Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870 (1997) (“[O]ur cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to [the internet].”)

Dendrite International, Inc. v. Doe No. 3, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001). Doe v. Cahill, 884 A.2d 451 (Del. 2005).

We recognize that the Indiana Constitution “‘more jealously protects freedom of speech guarantees than does the United States Constitution.’” Mishler v. MAC Sys., Inc., 771 N.E.2d 92, 97 (Ind. Ct. App. 2002) (quoting Lach v. Lake Cnty., 621 N.E.2d 357, 362 n.1 (Ind. Ct. App. 1993), trans. denied). 

 

 

 

Because the speech here is political, this case is not a vehicle for questioning whether Price was correct in giving heightened protection to only some speech; that is an issue for another day. Price was a disorderly conduct case, and has primarily been cited in other disorderly conduct cases. It has not become a broad landmark as predicted in “A Second Wind for the Indiana Bill of Rights.” This filing, and this case, is an attempt at following up on Price as establishing general principles of Indiana constitutional law which limit the power of the legislature to criminalize signs which urge people to vote for or against them.

[Under Price, section 9 .. 8:19 pm pause to take out the trash, 8:39 resume, .. lost train thought, omit sentence.]

Price is in harmony with count 4, in that it adopts the Mickeljon theory of free speech; that we protect speech in part because speech informs elections, and free and equal elections are preservative of all other rights. Yick Wo v Hopkins.

This court should follow Price, and find that plaintiff’s signs are political speech given heightened protection under section 9, apply strict scrutiny, and find that the statute and the county’s policy are unconstitutional restrictions on plaintiff’s section 9 rights, both facially and as applied to them.

Analogous federal cases are not controlling as to the in diana constitution, but they are persuasive.

This is not one of those cases where plaintiff has a losing federal claim but hopes to eke out victory under a slightly different state clause. Here the statute equally violates both constitutions.

Beginning with Barnette, the Supreme Court has repeatedly ruled that the government may not compel speech. If the American public known anything about their constitutional rights, it is that they have the right to remain silent. Miranda. The first case to apply this principle to disclaimers on political signs was Talley v California in 1960. Talley has been upheld repeatedly, in McIntyre and  ACLF. Talley is a subset of the court’s compelled speech cases, which include Tornillo, Riley, Wooley, Watchtower, NAACP v Alabama, Bates v Little Rock, Janus v Municipal Workers, NIFLA v Becerra, and most recently 303 Creative v Elennis.

A number of states have found that anonymous speech is also protected under their state constitutions. I have found 20 cases in 13 states that upheld the free speech right.

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)

On the other side of the ledger, State v Acey in Tennessee and Peterslie v N Carolina declined to follow Talley. These cases are neither controlling nor persuasive.

Additionally, I have found some 50 cases that found either that disclaimer rules are unconstitutional, or that the constitution protects anonymous speech, Table II. These two lists overlap.

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)

The Indiana constitution protects speech such as “Vote for Smith”, whether under the plain text of either clause of section 9, article I when read as a whole, and article II, or under Indiana case law.

Analogous federal cases compel the same result. 13 other states agree. This court should enter a declaratory judgment that IC 3-9-3-2.5 is void under the state constitution.

Respectfully submitted, Robbin Stewart.

End first draft 9:18 pm 9/6/23. Hours spent: 1.3._. Hours today about 7.3._.

Next up x shop then x internet. Took out trash, swept stairs, got ready for cable guy tomorrow.

=

Notes on in re Indiana newspapers. 10:07 pm 8/6/23 at library downtown.

https://caseclips.courts.in.gov/2012/02/23/indiana-newspapers/

In order to analyze this issue of first impression in our state, we consider …the First Amendment, which has a celebrated history of vigorously protecting anonymous speech, and the Indiana Constitution, which more jealously protects freedom of speech guarantees than the United States Constitution.

Anonymous speech has played an important role in the history of this country. “Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy or of dissent.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 356 (1995). This First Amendment protection has been extended to material on the internet as well. Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870 (1997) (“[O]ur cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to [the internet].”). 

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),, [Buckley v. American Constitutional Law Found., 525 U.S 182, 200, 119 S.Ct 636, 142 L.Ed.2d 599 (1999),] 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. 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)

https://mauitime.com/culture/history/using-newly-declassified-documents-we-examine-the-legacy-of-elmer-cravalho-maui-countys-most-important-political-leader/

a few notes in 2018

https://casetext.com/case/people-v-mishkin

22People v. Mishkin, 17 A.D.2d 243 | 1962.

today i tracked down and read the lower court opinions in zwickler v koota. they are not online - i had to find a law library. i had read the two supreme court opinions in the case, but there is more detail in the lower court opinions. should have looked these up years ago. i would summarize, but i'm on a bus and it is hard to type.

a lawyer took me to lunch, and we discussed the nuts and bolts of doing a case om michigan's disclaimer statute. we decided that, while i'm not relicenced yet, i can bill this time as a paralegal, at a fraction of my usual rates.

I had forgotten that Zwickler v Koota went to the supreme court twice. the second time, it was dismissed as moot. I saw an article today about Koota's grandson, which is the lawyer now on trial for winning a $12-billion judgment again chevron in equador.

http://www.nytimes.com/2013/07/31/business/steven-donziger-lawyer-who-beat-chevron-in-ecuador-faces-trial-of-his-own.html?pagewanted=all&_r=0

Zwickler v. Koota - 389 U.S. 241 (1967)

• Syllabus
• Case

U.S. Supreme Court

Zwickler v. Koota, 389 U.S. 241 (1967)

Zwickler v. Koota

No. 29

Argued October 12, 1967

Decided December 5, 1967

389 U.S. 241

Syllabus

Reversal on state law grounds of appellant's conviction of violating a New York statute by distributing anonymous political handbills was affirmed by the State's highest court. Thereafter appellant, invoking federal jurisdiction under the Civil Rights Act and the Declaratory Judgment Act, sought in the District Court declaratory relief and an injunction against future criminal prosecutions for violating the statute, claiming that, on its face, the statute contravened the First Amendment by its "overbreadth." A three-judge court applied the doctrine of abstention and dismissed the complaint, leaving the appellant to assert his constitutional challenge in the state courts either in the defense of any criminal prosecution for future violations of the statute or by way of a declaratory judgment action. The court held that abstention from ruling on the declaratory judgment issue was warranted because appellant had made no special showing of the need for an injunction against criminal prosecution.

Held:

1. The District Court erred in refusing to pass on appellant's claim for a declaratory judgment as there was no "special circumstance" warranting its application of the abstention doctrine to that claim. Pp. 389 U. S. 245-252.

(a) A federal court has the duty of giving due respect to a suitor's choice of a federal forum for the hearing and decision of his federal constitutional claims and escape from that duty is not permissible merely because state courts are equally responsible for the enforcement and protection of federal constitutional rights. P. 389 U. S. 248.

(b) A statutory construction by the state courts would not avoid or modify the constitutional question as the statute involved here is being challenged not for its lack of clarity, but for its "overbreadth." Pp. 389 U. S. 249-250.

(c) The principle that abstention cannot be used simply to give the state courts the first opportunity to vindicate a federal claim is particularly significant when, as here, the statute is being attacked as repugnant to the First Amendment, for the delay

Page 389 U. S. 242

from requiring recourse to the state courts might chill the very constitutional right which a plaintiff seeks to protect. P. 389 U. S. 252.

2. The District Court had the duty of adjudicating the request for a declaratory judgment regardless of its conclusion as to the propriety of the issuance of an injunction, for, asDombrowski v. Pfister, 380 U. S. 479, made clear, the questions of abstention and of injunctive relief are not the same. Pp. 389 U. S. 252-255.

261 F.Supp. 985, reversed and remanded.

Official Supreme Court caselaw is only fo