the cease and desist notice and the amicus letter

The second post borrowed from ballots.blogspot.com
Friday, June 19, 2009
Here are copies of some documents I filed or distributed yesterday in Clarksburg West Virginia.
[I just noticed there's nowhere on the menu to access the archives. Guess I'll need to fix that.]

Notice to cease and desist
To: City of Clarksburg, County of Harrison, State of West Virginia.
From: Robbin Stewart, Stewart & Associates.
Cc: media, public.
Re: prosecution related to anonymous flier
Date: Friday, June 05, 2009
Recently there has been a controversy over the mailing of a flier critical of the City of Clarksburg administration. Following an investigation, three arrest warrants were issued, on charges of distribution of anonymous campaign literature and conspiracy to do so.
City councilman Martin Shaffer was arrested, and faces the possibility of jail or fines.
Shaffer’s conduct, and that of the others, was legal, and he was subjected to a false arrest.
In 1960, in Talley v California, the Supreme Court held that anonymous political speech is protected by the First Amendment, and that disclaimer regulations which seek to outlaw anonymous speech are unconstitutional and void.
Talley, along with NAACP v Patterson ex rel Alabama (1958) and Bates v Little Rock (1961) are some of the key cases of the Civil Rights movement, establishing the foundations for the current understanding of the rightt o privacy under the First Amendment.
The Court has upheld this ruling each time the question returned to the court, for example in McIntyre v Ohio Elections Commission (1995), Buckley v American Constitutional Law Foundation (1999), McConnell v FEC note 88 (2003), and Watchtower v Stratton (2005).
Decisions of the Supreme Court, and the Constitution, are binding on states and cities and state and local officals and employees. Talley is well-established law, and there is no qualified immunity when it is violated.
In 1994, I encountered a similar situation when one of my campaign posters was confiscated.
In Stewart v Taylor, Indiana’s disclaimer statute was found to be unconstitutional, and I was awarded $7,000. Since then, I have monitored states’ compliance with McIntyre and Talley. See for example my amicus brief in CFIF v Ireland.
The prosecution of Shaffer and others is illegal, a violation of federal civil rights acts including the Ku Klux Klan Act, 17 USC 241. It is tortious under 42 USC 1983. It is unethical, both in the sense that it is morally wrong, and that it is within the jurisdiction of West Virginia’s Ethics boards. It is misconduct, for those involved who are members of the West Virginia Bar. (I am not a member, and am writing this as a private citizen, do not represent anybody, and take no side in the disputes about the content of the flier. My concern is solely with the false arrest under the unconstitutional statute.)
It is unAmerican. In America we confront speech with more speech, not by arresting our politcal opponents on false charges. It is a violation of the Oath of Office to uphold the Constitutions. I reasonably believe that the false arrest violates the free speech and free elections clauses of the West Virginia Constitution, although I am not aware of any cases directly deciding the issue.
I strongly encourage you to immediately dismiss the charges against Shaffer and the others.
If there are any lingering questions about the constitutionality of the statute, it would be appropriate to seek an advisory opinion from the Attorney General of West Virginia.
Please let me know how you intend to proceed.

===
To: Magistrate Gizzy Davis
Clarksburg Courthouse 306 Washington Ave
Clarksburg, WV 26301

From: Robbin Stewart
Box 29164 Cumberland IN 46229-0164 gtbear@gmail.com

Re: State v Martin Shaffer et al.
CC: Shaffer, Prosecutor

Your honor,
Recently in your court the City has charged City Councilman Martin
Shaffer and two as-yet-unnamed others with distributing anonymous
political literature.
I do not have the case number. When I went to your court on Friday it
was 4 pm and the office was closing and they would not allow me to see
the file.

I am submitting this in the role of an amicus curiae.

I have extensive experience in cases about anonymous political literature.
In 1996, I won Stewart v Taylor, which found Indiana's disclaimer
statute to be unconstitutional under McIntyre v. Ohio Elections
Commission. Since then I have continued to be involved in the issue.

The West Virginia statute regulating disclaimers on political
literature is unconstitutional under Talley v California (1960) and
McIntyre v Ohio Election Commission (1995), and cannot be enforced by
this or any other court without violating the oath of office to
uphold the constitutions. West Virginians for Life v Smith, 919 F. Supp 954 (1996), 960 F Supp 1036 (1996). The charges against Shaffer should be
dismissed immediately, and the arrest warrants against the other two
should be quashed. There be no conspiracy charges when the activity conspired in is legal.


My amicus brief in the CFIF v Ireland/Right to Life v Ireland case
goes into more detail on this. I will send you a copy when I get back
to my office in Indiana.

Additional reasons Shafffer has committed no crime are that,
1) as far as I can tell, the mailing did not contain any express
advocacy; it did not say "vote for __" or "elect ___" or other such
terms that would bring it within the purview of the statute.
2) as far as I know, there is no allegation that Shaffer took any part
in the composition and editing of the mailing, including the decision,
or innocent omission, to include an identification disclaimer. He has
admitted providing the information which was used in the mailing;
there is no claim that he printed or mailed it himself.
3) under Smith v United States, crimes which consist only of speech
must have a mens rea element; they must be intentional rather than
merely negligent.
The West Virginia statute lacks any such mens rea requirement and is therefore
void and unconstitutional.

I enclose several extra copies of this filing for distribution to the
parties, since I do not have their addresses but do not wish to engage
in ex parte communications with the court.
[document was emailed to defendants and prosecutor.]

Respectfully submitted,
Robbin Stewart