3rd draft of amicus brief

IN THE MAGISTRATE COURT OF HARRISON COUNTY WEST VIRGINIA

STATE OF WEST VIRGINIA
v. Case # 09M-1334, # 09M-1335
Magistrate Keith Marple
MARTIN L. SHAFFER

AMICUS BRIEF OF ROBBIN STEWART
Contents
Table of cases
Interest of amicus
Facts
Summary of argument
Argument
A. 1. Controlling Supreme Court cases find such statutes unconstitutional.
2 Strict scrutiny applies.
3 Persuasive authorities have struck down statutes on similar facts.
4 Criminal statutes get heightened scrutiny and are to be construed narrowly.
5 The statute is void because it lacks a scienter element.
6 A prior case on WV 3-8-12(a) is persuasive that the statute is unconstitutional here.
7 Even if the statute were constitutional, Shaffer hasn’t violated it.
B 1 The statute violates the West Virginia constitution. The text, history, case law, and case law of other states, support a finding of unconstitutionality.
Conclusion

Table of Authorities

ACLU v Heller, 378 F3d 979 (2004)
ACLU v Reno, 117 S.Ct. 2329 (1997)
ACORN v. Municipality of Golden, 744 F.2d 739, 746 (10th Cir.1984)
American Civil Liberties Union of Georgia v. Miller, 977 F.Supp. 1228 (N.D.Ga 1997)
Anonymous v. Delaware, 2000 Del. Ch. Lexis 84 (2000)
Arkansas Right to Life v. Butler, 29 F.Supp.2d 540, sustained on other grounds 146 F.3d 558 (8th Cir 1998)
Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).
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)
Buckley v. Valeo, 424 U.S. 1, 64 (1976) (per curiam)
Citizen Awareness v. Calhoun, 406 S.E.2d 65, 68 (W.Va. 1991)
Citizens Action v Daley, 324 S.E.2d 713, 726 (W.Va 1984)
City of Bogalusa v. May, 212 So.2d 408 (La. 1968)
City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 51-52 (1986)

Commonwealth v Dennis, 368 Mass. 92, 329 NE2d 706 (1974)
Ctr. for Individual Freedom, Inc. v. Ireland, Nos. 1:08-cv-00190 & 1:08-cv-01133, 2008 WL 4642268 (S.D. W.Va. Oct. 17, 2008) (consolidated w/ WVL v. Ireland)

Cyberspace v Engler, (E.D.MI 2001)

Dennis v. Massachusetts, 329 N.E.2d 706 (Mass. 1975)
Doe v 2theMart, 140 F.Supp.2d 1088, 29 Media L. Rep. 1970 (2001)
Doe v. Mortham, 708 So.2d 929 (Fla.1998)
Dombrowski v. Pfister, 380 U.S. 479, 494 (1965)
Ex Parte Harrison, 110 S.W. 709 (Mo 1908)
FEC v Wisconsin Right to Life, 551 U.S. 449 (2007)
Griset v. Fair Political Practices Commission, 69 Cal. App. 4th 818, 82 Cal. Rptr.2d 25 (1999), reversed on other grounds,
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,

Idaho v. Barney, 448 P.2d 195 (1968),
Illinois v White, 506 NE2d 1284 (Ill. 1987).
In re Opinion of the Justices, 324 A.2d 211 (Del. 1974),

Insco, U.S v., 496 F2d 204 (5th Cir. 1974)
Keller v. State Bar of Cal., 496 U.S. 1 (1990),
Louisiana. v. Moses, 655 So. 2d 779 (La. Ct. App. 1995),
Louisiana v. Fulton, 337 So.2d 866 (La. 1976),
Majors v Abell, 317 F.3d 719 (7th Cir. 2003).
McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 357, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995)
Miami Herald v Tornillo, 418 U.S. 241 (1974).
Michael James Berger, aka Magic Mike v. City of Seattle, (9th Cir. 6/24/2009)

NAACP v. Alabama, 357 U.S. 449, 463, 78 S.Ct. 1163, 1172, 2 L.Ed.2d 1488 (1958);
New York v. Duryea, 351 NYS2d 978 (1974),
Nixon v. Shrink Missouri PAC, 528 U.S. 377, 392 (2000)

Ogden v. Marendt, 264 F.Supp. 2d 785 (S.D. Ind. 2003) (S.D. Ind 2004),
Opinion of the Justices, 306 A.2d 18 (Maine 1973)
Patterson v. Colorado, 205 U.S. 454, 462, 27 S. Ct. 556, 51 L. Ed. 879 (1907).
People v Drake, (Cal.),
People v. Bongiorni, 205 Cal. App. 2d Supp. 856 (Sup. Ct. 1962),
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)
Rosen v. Port of Portland, 641 F.2d 1243, 1246 (9th Cir.1981)
Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995);
Schuster v. Imperial County Mun. Ct., 167 Cal. Rptr. 447 (Cal. Ct. App.

ShrinkMissouri v. Maupin, 892 F. Supp. 1246 (E.D. Mo. 1995), aff'd, 71 F.3d
Smith v California, 361 U.S. 147 (1959).

Smithers v Fla. Elections Comm’n, http://www.fec.state.fl.us/decisions/Smithers96-85.PDF
State of Louisiana v. Fulton, 3.37 So.2d 866 (La. 1976),
State of Louisiana v. Burgess, 543 So.2d 1332 (1989),
State v. N. Dakota Ed. Assoc., 262 N.W.2d 731 (N.D. 1978),
Stewart v Taylor, 953 F.Supp.1047 (S.D.Ind.1997)
Talley v. California, 362 U.S. 60, 65, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960)
Texas v. John Doe, 61 S. W. 3d 99, (Tx. Cr.App. 5/14/2003) http://www.cca.courts.state.tx.us/opinions/025402a.htm
Town of Lantana v Pelczynski, 290 So. 2d 566 (Fla. App. 1974).
Vermont Right to Life v. Sorrell, 221 F.3d 376, 392 (2d Cir. 2000),
Virginia Society for Human Life Incorporated v. Caldwell, 152 F3d 268 (4th Cir. 1998).

Washington ex rel. Public Disclosure v. 119 Vote No!, 957 P.2d 691

Watchtower v Stratton, 536 U.S. 150 (2002)
Web v Fury, 282 SE2d 28, 43, (W.Va. 1981)
West Virginians for Life v Ireland (S.D.WV 2009)

West Virginians for Life v Smith, 919 F. Supp 954 (S.D.W.Va. 1996), 960 F Supp 1036 (1996).

Wilson v Stocker, 819 F.2d 943, 950 (1999).
Wheeling Park Com’n. v. Hotel Union, 479 SE2d 876, 882 note 6 (W.Va 1996)
Woodruff v Board, 319 SE2nd 372, 379 (W.Va 1984)
Wooley v Maynard, 430 U.S. 705 (1977)
Yes to Life PAC v. Webster, http://www.med.uscourts.gov/opinions/Hornby/2000/DBH_02072000_2-99cv318_YES_PAC_V_WEBSTER.pdf
Peter Zenger’s case, http://www.law.umkc.edu/faculty/projects/Ftrials/zenger/zenger.html
Zwickler v. Koota, 290 F. Supp. 244 (E. D. N. Y. 1968), vacated on other grounds (mootness) sub nom. Golden v. Zwickler, 394 U.S. 103 (1969)
First Amendment.
WV 3-8-12(a)
WV Constitution 3-7, 3-16, 3-3.
Oregon Attorney General Opinion 8266 (1999) at http://www.doj.state.or.us/agoffice/agopinions/op8266.pdf .
http://www.jamesmadisoncenter.org/Documents/Boppresume0208.pdf, pp 20-25.

Bastress, the West Virginia State Constitution,
“An Englishman”, Common Sense,
“Publius”, Federalist Papers.
Interest of amicus.
I am Robbin Stewart, of Stewart and Associates, formerly Tavel and Stewart Public Interest Law Firm, Indianapolis IN. I am a former candidate. I was the plaintiff in Stewart v Taylor, F.Supp.1047 (S.D.Ind.1997), which found Indiana’s disclaimer statute unconstitutional, and have been counsel in cases such as Majors v Abell and Anonymous v Delaware, and am an amicus in Center for Individual Freedom v Ireland. I monitor state and federal compliance with Talley v California and McIntyre v Ohio, and cover election law issues at ballots.blogspot.com.
Facts
Prior to the June Clarksburg city council election, a newsletter was mailed to likely voters, containing information about city issues, questioning budgetary and management decisions. Some of the contents appear to be based on public records of complaints filed by Shaffer with a state ethics board. Shaffer has admitted involvement with the newsletter. The newsletter was accurately labeled as the “Clarksburg City Council News” and accurately listed its post office box address, but did not list the names of an editor or publisher. Shaffer is not the editor or publisher. The newsletter did not contain express advocacy. It did mention some candidate(s) by name in the context of discussing budgetary issues.
The city manager, who serves at the discretion of the council, became enraged and ordered an investigation and prosecution, and held a press conference. The city prosecutor, citing First Amendment concerns and a conflict of interest, declined to get involved. The arrest was orchestrated to occur just before the election. All but one of the city council members up for re-election was re-elected. It is unknown how much either the mailing or the false arrest affected the outcome.
Case history:
Shortly before the election, Shaffer was arrested on charges of violating WV code 3-8-12(a) and conspiring to do so, based on a warrant prepared June 1 by Lt. Robert Matheny signed by Magistrate Davis. Davis has recused himself. The case was transferred to Magistrate Marple. The city prosecutor has recused himself. A special prosecutor has been appointed. An amicus letter was submitted by myself. WV 3-8-12(a), in its current form, is apparently a re-enactment, in slightly different text, of the 3-8-12(a) which was permanently enjoined as unconstitutional in West Virginians for Life v Smith.
Summary of argument
Four controlling Supreme Court opinions hold that anonymous political speech is protected by the First Amendment. Numerous lower court opinions have agreed. Strict scrutiny applies. Criminal statutes are to be construed narrowly and are subject to strict scrutiny when they involve speech. The statute is defective in that it lacks a scienter element.
A federal decision enjoined an earlier version of the statute for reasons which apply here as well. The statute is void and unconstitutional, so Shaffer has committed no crime, and the case should be promptly dismissed. If, arguendo, the statute were valid, Shaffer hasn’t violated it. The West Virginia constitution protects political fliers from censorship. No previous case has addressed anonymity under the state constitution, but at least 7 other states have found anonymity to be protected under state constitutional provisions similar to West Virginia’s.
Argument
A 1 Controlling authority of the United States Supreme Court holds that anonymous political speech is protected by the First Amendment.
WV 3-8-12(a) reads “No person may publish, issue or circulate, or cause to be published, issued or circulated, any anonymous letter, circular, placard, radio or television advertisement or other publication supporting or aiding the election or defeat of a clearly identified candidate.”
A component of the First Amendment is the right to speak with anonymity. This component of free speech is well established. See, e.g., Buckley v. American Constitutional Law Found., 525 U.S. 182, 200, 119 S.Ct 6/27/2009 12:50 PM. 636, 142 L.Ed.2d 599 (1999) (invalidating, on First Amendment grounds, a Colorado statute that required initiative petition circulators to wear identification badges); McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 357, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995) (overturning an Ohio law that prohibited the distribution of campaign literature that did not contain the name and address of the person issuing the literature, holding that "[u]nder our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and dissent. Anonymity is a shield from the tyranny of the majority."); Talley v. California, 362 U.S. 60, 65, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960) (invalidating a California statute prohibiting the distribution of "any handbill in any place under any circumstances" that did not contain the name and address of the person who prepared it, holding that identification and fear of reprisal might deter "perfectly peaceful discussions of public matters of importance.") Doe v 2theMart ,140 F.Supp.2d 1088, 29 Media L. Rep. 1970 (2001).

The McIntyre decision holds that government cannot forbid the distribution of anonymous campaign literature; see also Talley v. California, 362 U.S. 60, 64-65 (1960). Majors v Abell, 317 F.3d 719 (7th Cir. 2003).
On April 27, 1988, the board held an informational meeting at a local school. When they arrived at the meeting, defendants Ernest Husarik, superintendent of schools, and J. Michael Hayfield, assistant superintendent, encountered plaintiff Margaret McIntyre. With help from her teenage son and his girlfriend, Mrs. McIntyre was distributing flyers opposing the latest levy proposal. The distribution took place in front of a school building. Dr. Husarik and Mr. Hayfield allegedly "snatched" some flyers from one of the teenagers and informed Mrs. McIntyre that the flyers violated Ohio's election laws.1 They also told Mrs. McIntyre that it was illegal to distribute her materials on school property and that she must leave the premises. The school officials are said to have threatened to call the police, but did not do so. Mrs. McIntyre continued to distribute the materials, and she left when the board meeting began. A similar incident took place a day later. 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,

Writing for the Court, Justice Roberts stated that “pamphlets have proved most effective instruments in the dissemination of opinion. And perhaps the most effective way of bringing them to the notice of individuals is their distribution at the homes of the people. On this method of communication the ordinance imposes censorship, abuse of which engendered the struggle in England which eventuated in the establishment of the doctrine of the freedom of the press embodied in our Constitution. To require a censorship through license which makes impossible the free and unhampered distribution of pamphlets strikes at the very heart of the constitutional guarantees.” Watchtower v Stratton, 536 U.S. 150 (2002). The rhetoric used in the World War II-era opinions that repeatedly saved petitioners’ coreligionists from petty prosecutions reflected the Court’s evaluation of the First Amendment values that are implicated in this case. The value judgment that then motivated a united democratic people fighting to defend those very freedoms from totalitarian attack is unchanged. It motivates our decision today. Id.

“Registration requirements also dissuade potential speakers by eliminating the possibility of anonymous speech. See Watchtower Bible, 536 U.S. at 166; see also McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 341-42 (1995) ‘[A speaker’s] decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible.’” Michael James Berger, aka Magic Mike v. City of Seattle, (9th Cir. 6/24/2009).
[T]he First Amendment requires us to err on the side of protecting political speech rather than suppressing it. FEC v Wisconsin Right to Life, 551 U.S. 449 (2007) Discussion of issues cannot be suppressed simply because the issues may also be pertinent in an election. Where the First Amendment is implicated, the tie goes to the speaker, not the censor. Id.
2. The standard of review is strict scrutiny.
[B]ecause "the identity of the speaker is no different from other components of [a] document's contents that the author is free to include or exclude," the statute's prohibition of internet transmissions which "falsely identify" the sender constitutes a presumptively invalid content-based restriction. The state may impose content-based restrictions only to promote a "compelling state interest" and only through use of "the least restrictive means to further the articulated interest." Thus, in order to overcome the presumption of invalidity, defendants must demonstrate that the statute furthers a compelling state interest and is narrowly tailored to achieve it. American Civil Liberties Union of Georgia v. Miller, 977 F.Supp. 1228 (N.D.Ga 1997).
When a State’s election law directly regulates core political speech, we have always subjected the challenged restriction to strict scrutiny and required that the legislation be narrowly tailored to serve a compelling governmental interest. J.Thomas, concurring, Buckley v. ACLF, 525 U.S. 182 (1999) Compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment. Buckley v. Valeo, 424 U.S, 1, 64 (1976) (per curiam) Thomas, id.
Critical to our First Amendment analysis, as will appear, is the central similarity between this case and McIntyre: Both involve campaign statutes that go beyond requiring the reporting of funds used to finance speech to affect the content of the communication itself. This case and McIntyre therefore involve governmental proscription of the speech itself unless it conforms to prescribed criteria. Yet while the Supreme Court's recent opinion in McConnell casts new light on some other aspects of the First Amendment principles applicable to regulation of election-related speech, nothing in McConnell undermines McIntyre's understanding that proscribing the content of an election communication is a form of regulation of campaign activity subject to traditional strict scrutiny. ACLU v Heller 378 F3d 979 (2004)

The Court’s July 29, 1999 Order noted that any content-based limitation on speech may be upheld only if the state demonstrates the restriction is both necessary to achieve a compelling state interest, and is narrowly tailored to achieve that feat. Cyberspace v Engler, (E.D.MI 2001) http://www.mediacoalition.org/mediaimages/june1decisioncyber.pdf.

Even if this Court were to apply scrutiny that is less than strict, the outcome would be no different. No matter what level of scrutiny applies, when First Amendment rights are at stake, the government has the burden of proving the constitutionality of the challenged law. See Watchtower Bible & Tract Soc’y of New York City v. Vill. of Stratton, 536 U.S. 150, 170 (2002) (“When the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions.” (Breyer, J., concurring) This requires real evidence. See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 51-52 (1986) (requiring the city to show evidence “reasonably believed to be relevant to the problem the city addresses”). It is not enough for Defendants to conjecture that an injunction “could” confuse political actors, sanction excessive and unregulated campaign contributions, and deprive the public of important information. See Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 392 (2000) (“We have never accepted mere conjecture as adequate to carry a First Amendment burden.
Broward Coalition v Browning, 4:08-cv-00445-SPM-WCS Document 32 Filed 10/29/2008 Page 12 of 33.
ECOs are required to include disclaimers in their communications that read “Paid electioneering communication paid for by (name and address of person paying for communication).” This disclaimer is a form of compelled speech that the Supreme Court has recognized violates the right to anonymous speech. McIntyre, 514 U.S. 334, 355 (1995) (law requiring “compelled self-identification on all election-related writings” was “particularly intrusive”). Broward, id.

Where freedom is at stake, ambiguities and doubts as to statutory application, manifestly existing here, must be resolved in favor of the accused. United States v Insco, 496 F2d 204 (5th Cir 1974).
3 Similar cases have upheld speech without identification disclaimers and struck down unconstitutional statutes.
Ernest Dennis was arrested on similar facts under a similar statute.
The defendant was charged with a violation of G. L. c. 56, Section 41, which makes a crime of the writing, printing, posting or distribution of anonymous circulars and posters which are designed to aid or to defeat any candidate for nomination or election to any public office or any question submitted to the voters. The defendant wrote a four page tabloid circular under the name "Saugus News Enquirer," devoted to commentary generally critical of incumbent selectmen of Saugus who were candidates for reelection. The defendant arranged for the printing and distribution without charge of the circular two days before the election. The defendant's name and address did not appear on the circular, nor did the name of any other person or organization responsible for the publication. Rather, it stated that the "Saugus News Enquirer is owned by the Association of Concerned Taxpayers, Box 54, Saugus, Mass. Commonwealth v Dennis, 368 Mass. 92 (1974).
The court found the statute unconstitutional under Talley and lower court cases about
disclaimers, and under the Massachusetts constitution.
"The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct." 283 U.S. at 720, 51 S. Ct. at 632. Freedom from prior restraint upon speech and press extends to false, as well as true statements. Patterson v. Colorado, 205 U.S. 454, 462, 27 S. Ct. 556, 51 L. Ed. 879 (1907). Town of Lantana v Pelczynski, 290 So. 2d 566 (Fla. App. 1974).
By requiring identification of the speaker, section 29 -- 14 plainly imposes a substantial restriction on the right to express political views. Under this statute even pure political advocacy, such as urging the public to "vote for Smith," is banned unless the author is identified. The State apparently regards the impairment as a minor one because it applies only to certain political literature, not to anonymous literature in general. This argument, though, overlooks the rationale for striking down the broader law in Talley, which was the importance of anonymous political speech. "Speech concerning public affairs is more than self-expression; it is the essence of self-government." Illinois v White, 506 NE2d 1284 (Ill. 1987).
In McIntyre v. Ohio Elections Commission, 514 U.S. 334, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995), the Supreme Court struck down as unconstitutional an Ohio statute that required all printed political campaign literature in the state to contain the name and address of the person or head of the organization responsible for the publication of the literature. The Court held that the Ohio statute violated the First Amendment because it burdened core political speech in a manner that was not narrowly tailored to serve an overriding state interest. Id. 115 S.Ct. at 1519-24. Stewart contends that this case is controlled by McIntyre. Stewart is correct.
The Supreme Court made clear in McIntyre that campaign literature in support of a candidate for elective office is "core political speech" that is entitled to the fullest protection of the First Amendment.
Discussion of public issues and debates on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order to assure the unfettered interchange of ideas for the bringing about of political and social changes desired by the people. Stewart v Taylor, 953 F.Supp.1047 (S.D.Ind.1997)
State v. N.Dakota Ed. Assoc., 262 N.W.2d 731 (N.D. 1978), concerned a notice in "North Dakota Education News" opposing a ballot measure. A jury convicted the association of violating a disclaimer rule. The North Dakota Supreme Court ruled “that the statute is violative of the State and Federal Constitutions. Anyone who has been victimized by anonymous smears will understand the motives of the sponsors. But constitutional imperatives must prevail and our hopes must lie in the good sense and decency of the electorate, or in the passage of a more carefully drawn statute designed to meet the specific evil.” Id.
James Wilson was arrested and detained by the El Reno, Oklahoma, police department for distributing anonymous campaign literature in violation of a state statute. While the matter was still under investigation and before formal charges had been filed, Wilson brought this suit under 42 U.S.C. Sec. 1983 (1982)…. In this case, the uncontroverted record reveals that Wilson and his family were subjected to substantial harassment when his campaigning activity became known. The record supports the reasonable inference that those supporting the candidate whom Wilson opposed played some part in Wilson's arrest, because the candidate's attorney arrived at the police station shortly after Wilson and threatened Wilson with a civil suit as well as criminal prosecution. When, as here, "a law infringes on the exercise of First Amendment rights, its proponent bears the burden of establishing its constitutionality." ACORN v. Municipality of Golden, 744 F.2d 739, 746 (10th Cir.1984). The interests of the state in enacting such a law "must survive exacting scrutiny." Buckley, 424 U.S. at 64, 96 S.Ct. at 656. The law must be substantially related to a compelling governmental interest, and must be narrowly drawn so as to be the least restrictive means of protecting that interest. See NAACP v. Alabama, 357 U.S. 449, 463, 78 S.Ct. 1163, 1172, 2 L.Ed.2d 1488 (1958); Rosen v. Port of Portland, 641 F.2d 1243, 1246 (9th Cir.1981) (citing cases). Wilson v Stocker, 819 F.2d (1999).
The court declared the statute unconstitutional.
Additional cases that have found anti-anonymity statutes unconstitutional or narrowed them to
protect plaintiffs’ speech include:
Anonymous v. Delaware, 2000 Del. Ch. Lexis 84 (2000),
Arkansas Right to Life v. Butler, 29 F.Supp.2d 540, sustained on othergrounds146 F.3d 558 (8th Cir 1998),
City of Bogalusa v. May, 212 So.2d 408 (1968),
People v Drake, (Cal.),
People v. Bongiorni, 205 Cal. App. 2d Supp. 856 (Sup. Ct. 1962),
Doe v. Mortham, 708 So.2d 929 (Fla.1998),
Griset v. Fair Political Practices Commission, 69 Cal. App. 4th 818, 82 Cal. Rptr.2d 25 (1999), reversed on other grounds,
Printing Industries of the Gulf Coast v. Hill, 382 F.Supp. 8011 (S.D.Tx 1974), 42 L.Ed.26 33 dismissed as moot,
Idaho v. Barney, 448 P.2d 195 (1968),
Louisiana. v. Moses, 655 So. 2d 779 (La. Ct. App. 1995),
Lousiana v. Fulton, 3.37 So.2d 866 (La. 1976),
New York v. Duryea, 351 NYS2d 978 (1974),
In re Opinion of the Justices, 324 A.2d 211 (Del. 1974),

Opinion of the Justices, 306 A.2d 18 (Maine 1973)
Ogden v. Marendt, 264 F.Supp. 2d 785 (S.D. Ind. 2003) (S.D. Ind 2004),
ShrinkMissouri v. Maupin, 892 F. Supp. 1246 (E.D. Mo. 1995), aff'd, 71 F.3d
1422 (8th Cir. 1995),
Schuster v. Imperial County Mun. Ct., 167 Cal. Rptr. 447 (Cal. Ct. App.
1980), cert. denied, 450 U.S. 1042.
Smithers v Fla. Elections Comm’n, unreported.
Texas v. Doe, 61 S. W. 3d 99, (Tx. Cr.App. 5/14/2003)
Vermont Right to Life v. Sorrell, 221 F.3d 376, 392 (2d Cir. 2000),
West Virginians for Life v Ireland (S.D.WV 2009)

Ctr. for Individual Freedom, Inc. v. Ireland, Nos. 1:08-cv-00190 & 1:08-cv-01133, 2008 WL 4642268 (S.D. W.Va. Oct. 17, 2008) (consolidated w/ WVL v. Ireland)

West Virginians for Life, Inc. v. Smith, 919 F. Supp. 954 (S.D. W. Va. 1996),
Yes to Life PAC v. Webster,
Zwickler v. Koota, 290 F. Supp. 244 (E. D. N. Y. 1968), vacated on other grounds (mootness) sub nom. Golden v. Zwickler, 394 U.S. 103 (1969)
The right to anonymous speech is part of a larger principle of the First Amendment: that the speaker, rather than the government, controls the content of speech, and government may not compel speech. Other cases illustrating this point include Miami Herald v Tornillo, 418 U.S. 241 (1974) which held that the state cannot control the content of newspaper editorial pages. Newspaper editorial pages traditionally engage in anonymous express advocacy in the form of unsigned editorials endorsing candidates. Wooley v Maynard 430 U.S. 705 (1977), held that the state could not require Wooley to proclaim “Live Free or Die” on his license plate. Riley v. Federation of the Blind, 487 U.S. 781 (1998) ruled that the government could not compel spoken disclaimers in charitable phone solicitation. Washington ex rel Public Disclosure v. 119 Vote No!, 957 P.2d 691 (1998) was not about disclaimers, but involved a narrowly tailored statute prohibiting false statements in campaign ads. The court found the statute unconstitutional, illustrating the difficulty of regulation in this area. The West Virginia statute is not limited to false defamatory and malicious anonymous speech, but includes innocent speech such a sign saying “Vote for Zeke Lopez” as well as the newsletter at issue in this case.
4. Criminal statutes which infringe on speech must be subjected to strict scrutiny and
narrowly construed.
[T]he CDA is a criminal statute. In addition to the opprobrium and stigma of a criminal conviction, the CDA threatens violators with penalties including up to two years in prison for each act of violation. The severity of criminal sanctions may well cause speakers to remain silent rather than communicate even arguably unlawful words, ideas, and images. See, e.g., Dombrowski v. Pfister, 380 U.S. 479, 494 (1965). As a practical matter, this increased deterrent effect, coupled with the "risk of discriminatory enforcement" of vague regulations, poses greater First Amendment concerns… ACLU v Reno, 117 S.Ct. 2329 (1997).
The First Amendment commands, “Congress shall make no law … abridging the freedom of speech.” The government may violate this mandate in many ways, e.g., Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995); Keller v. State Bar of Cal., 496 U.S. 1 (1990), but a law imposing criminal penalties on protected speech is a stark example of speech suppression. Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).
5 The statute is additionally unconstitutional because it lacks a scienter requirement.
By dispensing with any requirement of knowledge of the contents of the book on the part of the seller, the ordinance tends to impose a severe limitation on the public's access to constitutionally protected matter. For if the bookseller is criminally liable without knowledge of the contents, and the ordinance fulfills its purpose, he will tend to restrict the books he sells to those he has inspected; and thus the State will have imposed a restriction upon the distribution of constitutionally protected, as well as obscene literature. It has been well observed of a statute construed as dispensing with any requirement of scienter that: "Every bookseller would be placed under an obligation to make himself aware of the contents of every book in his shop. It would be altogether unreasonable to demand so near an approach to omniscience. Smith v California, 361 U.S. 147 (1959).

6 A prior case on 3-8-12(a) is persuasive that the statute is unconstitutional here.
An additional reason why the statute does not apply is that the mailing did not contain express advocacy. As explained in cases ranging from Buckley v Valeo, 424 U.S. 1, 64 (1976), to West Virginians for Life v. Smith, 960 F Supp 1036 (1996), “supporting or aiding” is too vague to be constitutional unless narrowly construed to be limited to express advocacy. Such a construction does not save the statute from being unconstitutional under Talley, but is an additional limit on how it could be applied. See cases collected at http://www.jamesmadisoncenter.org/Documents/Boppresume0208.pdf, pp 20-25.

Accordingly, we hold that the phrase "for the purpose of influencing the outcome of an election," as used in Code §§ 24.2-901, -910, and -1014, as well as its implication for terms used in Code § 24.2-908, may be narrowly construed to limit the application of those statutes to groups that expressly advocate the election or defeat of a clearly identified candidate. Virginia Society for Human Life Incorporated v. Caldwell, 152 F3d 268 (4th Cir. 1998).

As the Court noted in WRTL II, it has never recognized a compelling interest in regulating ads . . . that are neither express advocacy nor its functional equivalent. 127 S.Ct. at 2671. Broward Coalition v Browning, 2008 WL 4791004 (N.D. Fl 2008)
The only precedent on WV 3-8-12 is West Virginians for Life v Smith, 919 F. Supp 954 (1996), 960 F Supp 1036 (1996). Plaintiffs objected to several aspects of the election code. There were two reported rulings, the first granting a temporary injunction, the second making the injunction permanent.
Furthermore, W. Va. Code § 3-8-12 provides that "no person shall publish, issue or circulate, or cause to be published, issued or circulated, any anonymous letter, circular or other publication tending to influence voting at any election" and prohibits newspapers or other periodicals from publishing any advertisement which tends to influence voting at any election unless the advertisement is clearly marked as a paid advertisement, and includes the name of the person responsible for it and the name of the candidate on whose behalf it is published. The Supreme Court reasoned that the Ohio statute applied, not only to candidates and their supporters, but to individuals acting independently. McIntyre, 115 S. Ct. at 1521. Based, in part, on the holding in McIntyre, the court concludes that, when it applies exacting scrutiny to the West Virginia ban on anonymous voter guides, there is a strong likelihood that plaintiffs will succeed on the merits. Smith, id.

Contrast the previous 3-8-12 with today’s version:
WV 3-8-12(a) reads “No person may publish, issue or circulate, or cause to be published, issued or circulated, any anonymous letter, circular, placard, radio or television advertisement or other publication supporting or aiding the election or defeat of a clearly identified candidate.”
What the legislature has tried to do is to focus the statute somewhat more narrowly on candidates, excluding ballot questions, although that would not help the voter guides that were at issue in Smith. This misunderstands McIntyre, and ignores Talley. The question presented in McIntyre was whether there is an elections exception to the rule in Talley that the First Amendment protects anonymous political speech. The holding of McIntyre was that there is no elections exception to Talley’s rule, and that anonymous election speech is protected by the First Amendment. McIntyre cited with approval cases such Illinois v White, 506 NE2d 1284 (Ill. 1987), and People v Duryea, 351 NYS2d 978 (1974), which were candidate elections. McIntyre found facially unconstitutional an Ohio statute which required identification disclaimers on candidate literature. If the Court’s intent had been to merely exempt ballot measures, it could have construed the statute narrowly. Instead it found it facially unconstitutional, that is, it was unconstitutional 100% of the time. The facts which gave Margaret McIntyre standing involved a ballot measure, and the court illustrated its ruling with discussion of the facts of her case, but what governs is the holding. The new statute is just as unconstitutional as the previous version, and cannot be enforced by this court. In West Virginians for Life, the only relief the court gave was to narrow the statute to only express advocacy, because that was all the relief plaintiffs had asked for. Their lawyer, James Bopp, happens to be the nation’s expert on express advocacy. But if they had asked for the statute to be entirely enjoined or declared void, the court would have done so, based on McIntyre.

In this court's Memorandum Opinion entered on March 11, 1996, the court emphasized the historical importance of anonymous publication, and the broad protection the First Amendment gives to the right to publish anonymously. In granting the preliminary injunction against the application of sections 3-8-5(f) and
3-8-12, the court relied on the United States Supreme Court's holding in McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 115 S. Ct. 1511, 131 L. Ed. 2d 426 (1995) McIntyre presented the question of whether an Ohio statute which prohibited the distribution of anonymous campaign literature was "a law . . .abridging the freedom of speech within the meaning of the First Amendment." Id. at 1514. The McIntyre Court concluded that because the Ohio statute restricted "core political speech," it was subject to "exacting scrutiny" and must be narrowly tailored to serve a compelling state interest. Id. at 1519. In McIntyre, the Court held that the Ohio statute, which required that any writing tending to "influence" the voters in any election contain the name of the writer, violated the First Amendment. The Court concluded that the State of Ohio's interest in preventing fraud or libel or in providing voters with relevant information was not sufficiently compelling so as to justify the broad prohibition on anonymous handbills. 960 F. Supp 1036.
The problem with the statute is not that it was inartfully drafted, but that I t was trying to ban a category of speech which the constitution protects. The amended statute must fail for the same reasons.
Also relevant is the ongoing consolidated case of Center for Individual Freedom v Ireland/ West Virginians for Life v Ireland. In April 2008 Judge Faber granted an injunction limiting 3-8-2(b), a similar disclaimer rule, to express advocacy. http://mailman.lls.edu/pipermail/election-law/attachments/20080530/81e82536/attachment-0003.pdf However, I am not sure that this injunction remain in force; it may have been mooted by later developments in the case. The reasoning remains sound.
7 As a factual matter, Shaffer has not violated the statute.
Under Smith, (1959), or Smith, (1996), the statute is facially unconstitutional, but it is also unconstitutional as applied to Shaffer in this case, or simply does not apply at all. He provided some of the information which was the content of the mailing, but there is no allegation that he was involved in the layout and design of the mailing, or that he printed or mailed it himself. Construing the statute narrowly, according to the principle of leniency and the doctrine of constitutional avoidance, the mailing substantially complies with the statute, because it accurately names the publication and its P O Box address, and is therefore not anonymous. (While defendant has been charged under 12(a), 12(b) is equally unconstitutional: (b) No owner, publisher, editor or employee of a newspaper or other periodical may insert, either in its advertising or reading columns, any matter, paid for or to be paid for, which tends to influence the voting at any election, unless directly designating it as a paid advertisement and stating the name of the person authorizing its publication and the candidate in whose behalf it is published.) Here, anyone interesting in knowing the publisher of the newsletter can simply call the post office and ask who has that post office box. There has been no attempt to hide. The Clarksburg Exponent-Telegraph frequently discusses city politics in unsigned editorials, but in doing so does not violate 3-8-12(a). Further, much of the material in the newsletter was copied or summarized from public records such as city council minutes and an ethics board complaint. If the intent had been to be anonymous, using public records would be an inept way to go about it. There is at least reasonable doubt that the publication would violate the statute, if the statute was not already void by reason of its unconstitutionality.
B 1 The statute violates the West Virginia constitution. The text, history, case law, and case law of other states, support a finding of unconstitutionality.
In Ex Parte Harrison, 110 S.W. 709 (Mo 1908), an official was arrested and jailed for publishing a voters’ guide without a disclaimer. The court found that the state constitution protected his speech, at a time when the First Amendment had not been extended to the states. So the right to anonymous speech is 100 years old and predates Talley v California. State constitutions have been the source of anonymous speech rights in at least California, Idaho, Illinois, Louisiana, Massachusetts, Missouri, and North Dakota. The West Virginia press freedom provisions protect political leaflets and newsletters. As far as I know, no case has considered whether there is an anonymity exception to the West Virginia freedom of the press. In such cases of first impression, we can look to the plain meaning of the constitutional text, look to the history of its adoption, look to case law setting out more general principles, look to how this question has been answered in other states with similar constitutional provisions, and obtain guidance from federal cases such as those discussed above.
The text: Art.III Sec.7. Freedom of speech and press guaranteed.
No law abridging the freedom of speech, or of the press, shall be passed…. III-16. Right of public assembly held inviolate. The right of the people to assemble in a peaceable manner, to consult for the common good, to instruct their representatives, or to apply for redress of grievances, shall be held inviolate.
III-3. Rights reserved to people. …a majority of the community has an indubitable, inalienable, and indefeasible right to reform, alter or abolish it in such manner as shall be judged most conducive to the public weal. All men are, by nature, equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity, namely: The enjoyment of life and liberty… III-10 No person shall be derived of life liberty or property, without due process of law, and the judgment of his peers.
The history: In the 1700s, New York City publisher Peter Zenger was arrested for anonymously printing booklets critical of the colonial government. A jury refused to convict him. The founders, such as James Madison and George Mason, had this episode in mind in including free press, petition, and trial by jury in the Bill of Rights. West Virginia’s Bill of Rights, article 3 of the Constitution, is modeled on the federal Bill and that of the other states, especially Virginia. Free speech was intended to promote free elections and self-government by free people. Anonymity was often used. “An Englishman” wrote Common Sense and sparked a revolution. “Publius” wrote the Federalist Papers and helped ratify the constitution. West Virginia’s succession and statehood probably has similar examples of anonymous newsletters. The current constitution was adopted in 1872. Justice Thomas’s concurrence in McIntyre is a scholarly treatise on the history of anonymous speech in the revolutionary period.
West Virginia case law establishes that political newsletters are protected by section 3-7. Bastress, the West Virginia State Constitution. “We hold that Art III, Sec. 7, was intended to provide at least as much protection to the press as the First Amendment to the Constitution of the United States provides.” Citizen Awareness v. Calhoun, 406 S.E.2d 65, 68 (W.Va. 1991). Citing Tornillo, Calhoun ruled that the state could not compel a newspaper to carry an ad. “[T]he Supreme Court of the United State’s analysis of the various standards that are applied to First Amendment issues [are] instructive because it establishes the floor below which we cannot venture.” Wheeling Park Com’n. v. Hotel Union, 479 S.E.2d 876, 882 note 6.(W.Va 1996). “The right to free speech is a very important right under our state and federal constitutions. Before that right is restricted, a court should carefully examine the facts.” Hotel Union, 479 S.E.2d at 887. “This court held in Woodruff v Board, 319 S.E.2nd 372, 379 (W.Va 1984), involving the dismissal of hospital employees for engaging in the group distribution of leaflets, that with respect to the waiver of fundamental constitutional rights, our state constitution is more stringent in its limitation of waiver than is the federal constitution.” Citizens Action v Daley, 324 S.E.2d 713, 726. Citizens Action narrowly construed “sunset” in a Fairmont solicitation ordinance in light of Article III sections 1,2,3, and 7. “Our democratic system is designed to do the will of the people, and when the people cannot express their will, the system fails. It is exactly this kind of debate which our federal and state constitutions protect.” Web v Fury, 282 SE2d 28, 43, (W.Va. 1981), discussing Art III section 16 and Art. III section 7. Fury found an absolute privilege for speech petitioning the government for redress of grievances. The Clarksburg City Council News outlines such grievances to the voters so that they can use their right to reform by casting informed votes in the election. It is privileged from the prosecution at issue here. (Fury has been limited to the New York Times v Sullivan standard in defamation cases, in Harris v Adkins, 432 S.E.2d 549, but that does not affect its application here.) Calhoun is controlling as to the point that the City of Clarksville cannot dictate the content of the Clarksville City Council News.
Whether the state constitutional speech protection also includes anonymous newsletters is not yet established, but follows from the general principles and is informed by Talley, McIntyre, ACLF and Watchtower. Additionally, at least seven other states have found a right to anonymous speech under state constitutions, including California, Idaho, Illinois, Louisiana, Massachusetts, Missouri, North Dakota, and Oregon. Schuster v. Imperial County Mun. Ct., 167 Cal. Rptr. 447 (Cal. Ct. App.), Idaho v. Barney, 448 P.2d 195 (1968), Illinois v. White, 506 NE2d 1284 (Ill. 1987), State of Lousiana v. Fulton, 3.37 So.2d 866 (La. 1976), State v. Burgess, 543 So.2d 1332 (1989), Louisiana. v. Moses, 655 So. 2d 779 (La. Ct. App. 1995), Dennis v. Massachusetts, 329 N.E.2d 706 (Mass. 1975), Ex Parte Harrison, 110 S.W. 709 (Mo 1908), New York v. Duryea, 351 NYS2d 978 (1974), N. Dakota v. N.D. Ed. Assoc., 262 N.W.2d 731, Oregon Attorney General Opinion 8266 (1999) at http://www.doj.state.or.us/agoffice/agopinions/op8266.pdf .
The best view is that the free speech and freedom of petition sections, aided by the right to reform and right to liberty set out in section 3-3, and due process under section 10, compel a finding that the statute violates the West Virginia constitution and cannot be enforced against Shaffer.
Conclusion:
The statute under which defendants were charged is void and unconstitutional under controlling precedents. The conspiracy charge collapses when the activity conspired in was legal and was protected speech. The statute also violates the West Virginia constitution. Independently of the statute’s unconstitutionality under Talley and subsequent cases, the statute is unconstitutional because it lacks a scienter element per Smith. If, arguendo, it were constitutional and not void, it does not apply on these facts, because it would need to be narrowly construed to cover only express advocacy per West Virginians for Life v Smith, and Ireland, and the mailing did not contain express advocacy. But there are at least two additional reasons Shaffer did not violate the statute: 1. he wasn’t the one who edited and published the newsletter or made any decision about the content of the masthead. He may have conspired to help put together a newsletter, but was not consulted about the format of the identification. 2. The publication was not anonymous in that listed its actual post office address, which is sufficient to establish who sent it. No effort was made to conceal authorship or publication. This was a false arrest and malicious prosecution brought at the insistence of a city manager who objected to the content of the mailing. That’s not how we do things in America. The case should be dismissed with prejudice.
Respectfully submitted,
___________________
Robbin Stewart.
Certifications:
I have sent a copy of this filing by email or hand delivery or first class post to
Traci Cook for Martin Shaffer,
Marion County Special Prosecutor Pat Wilson
___________________
Robbin Stewart
PO Box 29164 Indianapolis IN 46229-0164 gtbear at gmail.com.

IN THE MAGISTRATE COURT OF HARRISON COUNTY WEST VIRGINIA


STATE OF WEST VIRGINIA
v. Case # 09M-1334, # 09M-1335
Magistrate Keith Marple
MARTIN L. SHAFFER

MOTION FOR LEAVE TO FILE AMICUS BRIEF OF ROBBIN STEWART
Comes now Robbin Stewart and asks the court for leave to file the enclosed amicus brief in the above case, replacing or supplementing my previously filed amicus letter.
Respectfully submitted,
___________________
Robbin Stewart.
Certifications:
I have sent a copy of this filing by email or hand delivery or first class post to
Traci Cook for Martin Shaffer,
Marion County Special Prosecutor Pat Wilson
___________________
Robbin Stewart
PO Box 29164 Indianapolis IN 46229-0164 gtbear at gmail.com.