Long: the original post

Wednesday, June 03, 2009
This article is an ongoing story I am doing about the false arrest of a west virginia city councilman for anonymous political literature, which is free speech protected by the constitution.
Friday update: Was just interviewed by the Clarksburg Telegram-Exponent.
I went back to Clarksburg yesterday. I filed an amicus letter with the court.
The case has been reassigned to a new magistrate after Davis recused because he and Shaffer are friends. The prosecutor recused because he is Shaffer's nephew.
I gave the city's attorney a cease and desist letter.
I met with Shaffer. Great guy, useful meeting. He was just off the phone with one of IJ's lawyers. There's an increasing possibility IJ may end up as counsel, nothing definite on that. I'm touch with one of the other two defendants.
I went to a city council meeting; many of the major players in the case all in one room. I found a sign for one of the other councilmen which did not have a disclaimer; Shaffer will go get a picture of it.
I saw the plaque and statute for stonewall jackson's birthplace, got a $7 haircut at a barber shop that's been there since 1903, bought stuff at a white elephant sale for the fire department,and ate at Junebug's, my favorite Clarkburg hole-in-the-wall cafe.
Shaffer is jovial, gets around on a walker due to a broken leg, had a picture of him and Bill Clinton on his wall, had war stories involving Senator Byrd. He's no stranger to suing the government - he recovered half of 2 million his business lost, in a case that lasted 7 years, so he understands these things take time and commitment. I think he's the right plaintiff, and IJ would be the right counsel.
I think there's a good shot at striking down the West Virginia statute.
Still to do: I need to out my amicus letter and cease and desist letter online. -done see above.
Monday update:
Updated Monday, June 8, 2009 ; 06:48 PM
Story by Dani Brake
CLARKSBURG -- The Clarksbug police have issued more warrants in the city council newsletter investigation.
The police have already arrested councilman Martin Shaffer.
Now they've issued warrants for his sister Michelle Waugaman and her boyfriend, John Peterson.
The couple face charges of circulation of written matter and conspiracy, both misdemeanors.
The police say the couple lives in Cottonwood, Arizona and they will try to contact them about the investigation.
http://www.boomboxradio.net/boombox/PlayerSetup/Players/WBOYPlayer.aspx?FileId=185668_wboy
John Peterson
6/12/09 at 8:17 PM Report Abuse
I wish that you would stop referring to us as a COUPLE, I live in Arizona, and Michelle lives in West Virginia, beyond the logistics of it all, Michelle is just recently widowed and I have been happily married for 35 years. The newsletter was not written to change or effect the election, which it didn't, it was written to inform people of some of the facts that they should be aware of. There need to be more published.

- I found out Martin Shaffer has sued the city before, in an open records dispute last year. Also he's a property owner/business owner. So he'll probably have no trouble finding counsel to bring a case against the city for his false arrest, if he chooses to.

- Shaffer is a former member of the Democratic National Committee, says Political Graveyard.



Sunday update: Rick Hasen has linked to yesterday's Billy Wolfe article.
"Law targeting Shaffer may no longer be enforceable"
Following up on this post, Robbin Stewart sends along a link to this article, which begins: "The state law authorities cited in the June 1 arrest of Clarksburg City Councilman Martin Shaffer may not be enforceable, or even constitutional, the legal director of a national nonprofit organization said Thursday."
Posted by Rick Hasen at 09:11 PM
Saturday update:
Bingo! Everything's changed now, with this story.
Law targeting Shaffer may no longer be enforceable
by Billy Wolfe STAFF WRITER
Saturday, June 13, 2009 6:21 AM CDT
CLARKSBURG — The state law authorities cited in the June 1 arrest of Clarksburg City Councilman Martin Shaffer may not be enforceable, or even constitutional, the legal director of a national nonprofit organization said Thursday.
Edit Friday: Another Daily Kos story I missed on June 4. Watch for possible upcoming coverage by Eugene Volohk.
Edit thursday: Martin tells me there's an article in today's paper based on Reid's column, which I'll google for tomorrow. These are the cops who arrested Martin. Lt. Matheny, left. Right is Chief Goff. Goff is an important local name; there was a Goff who helped found West Virginia during the civil war.
Martin speaks in this newsclip.

>Here's an earlier article I missed: City Police launch probe into mailer.
Harrison County Prosecutor Joe Shaffer said he will need to research case law before he can determine if those who participated in mailing the document committed an offense.
“There is always a balance between the First Amendment and election laws,” he said.

Reid's article has been crossposted to Daily Kos. WVa newspapers online.
Edit Wednesday
Nice article at
http://www.campaignfreedom.org/blog/detail/prosecuting-anonymous-political-speech-thats-whats-criminal
Edit Tuesday:
The statute under which Shaffer was charged was found to be unconstitutional in West Virginians for Life v Smith, 919 F Supp 954 (SDWV 1996) and 960 F.Supp 1036 (SDWV 1996)! The statute is 3-8-12(a), not 3-12-12(a), newspaper had it wrong. I'm at the WV law school running off copies, already bought stamps. I have these cases in my files at home, but it's been awhile since I've looked through them - they are directly on point.
No, that's a slight overstatement:
In WV4Life v Smith, the only relief plaintiffs sought was a declaration that the statute be limited to express advocacy, so that's all the relief that was granted, although the opinion explains why the statute is unconstitutional under McIntyre.
The statute appears to have been amended in light of the Right to Life case.
Probably also violates state constitution, Woodruff v Board of Trustees 319 SE2d 372 (1984)(distributing literature protected under W Va constitution, does not address anonymity.)

A Clarksburg West Virgina city councilman Martin Shaffer has been jailed arrested for being involved in an anonymous flyer. He was defeated for re-election several days later, yesterday.
I'm finding a few stories on it now.

Thursday update: I'm in Clarksburg now, I'll see if I can get in any interviews before they roll up the sidewalks. I found the text of the flier online, thanks to T. David Franklin. http://picasaweb.google.com/MyCityServices/ClarksburgWVNewsletter#

Found Youtube video of the press conferencee.
http://www.youtube.com/watch?v=ckk1gDFoUbk



http://www.statejournal.com/story.cfm?func=viewstory&storyid=60163
http://www.wdtv.com/news/local/46775732.html
No, I'm mistaken, he apparently wasn't up for re-election.
The four people elected into City Council Tuesday night include incumbents Patsy S. Trecost II with 863 votes, Jim Hunt with 843 votes, Sam "Zeke" Lopez with 758 votes, and newcomer Mary Mayer with 773 votes.

Not being elected in Council were "Charlie Thayer" with 722 votes, Tim Gentilozzi with 673 votes, incumbent B. K. Vanhorn with 655 votes, F. Lee West with 434 votes, Paul J. DuPont with 400 votes, Ugo Annibale with 345 votes, and Jim Price with 318 votes.
http://www.wdtv.com/news/46679872.html

The Clarksburg Police and the General Council of the Secretary of State's Office decided to make the arrest late Monday afternoon. Shaffer was arraigned and released on a personal recognizance bond.
http://www.wboy.com/story.cfm?func=viewstory&storyid=59772
CLARKSBURG -- Clarksburg City Manager Martin Howe held a news conference, Tuesday, to announce that the city has launched an investigation into who distributed a controversial newsletter, over the weekend.Howe has asked the police department, the FBI, U.S. Postal inspectors, the Harrison County Prosecutor's Office, and the Secretary of State's Office, to look into the matter.
The city plans to prosecute whoever is responsible for newsletter, Howe says.
http://www.wboy.com/story.cfm?func=viewstory&storyid=60163
The significance of the story is not that the arrest came the day before the election, but that it was a false arrest under an unconstitutional statute.
Talley v California and McIntyre v Ohio hold that anonymous flyers are constitutionally protected free speech.
story developing. welcome electionlawblog.org readers.

story swiped from local paper behind registration wall:
(reprint request pending)
Councilman Martin Shaffer charged with two misdemeanors
by Billy Wolfe and Matt Harvey
Wednesday, June 3, 2009 6:34 AM CDT
CLARKSBURG — Clarksburg City Councilman Martin Shaffer was charged with two misdemeanors — circulation of anonymous written matter and conspiracy — Monday night.
The complaint, filed by Clarksburg Police Lt. Robert Matheny, alleges Shaffer “did knowingly cause to be published and circulated an anonymous ‘newsletter’ that was for the purpose to aid the defeat of clearly identified candidates in the June 2nd, 2009, Clarksburg Municipal Election.” (the rest of the article redacted at request of copyright holder)
==
My letter to the editor of the local paper:
Full Name:Robbin Stewart
Comments: Councilman Shaffer is innocent of the charges against him, and those who charged him may be guilty of violating his federal civil rights,and should be investigated. The landmark civil rights case Talley v California !960) held that anonymous fliers are protected by the First Amendment's right to privacy.
The West Virginia constitution also protects political speech of this type. The statute under which he was charged is unconstitutional and void. His right to help with a flier is the same right that protects this newspaper - freedom of the press. As Americans,and as journalists, we should stand up for Mr. Shaffer.
==
I'm in the neighborhood with time to kill, so I might run down there tomorrow and see what I can dig up.
==
odd coincidence
FBI Criminal Justice Information Services Division
1000 Custer Hollow Road
Clarksburg, West Virginia
26306
==
Thursday PM notes. I met with the city manager, Martin Howe, his secretary, the City Clerk, and the police lieutenant in charge of the investigation.
Officially, they have no comment because there is an ongoing investigation.
Unofficially, we talked, and I put them on notice they can't be doing what they are doing.
The magistrate's clerk was closing when I found it, so I haven't seen the file, and the police report isn't in yet because they are focused on a mass murder that happened recently, so I'll be requesting it next week. They said this is the first time anyone from the press has ever asked for a police report, so they will review their procedures. The court's janitor gave me a donut,and I had dinner in a fun hole-in-the-wall on Main Street. I've eaten a lot today because I keep ducking into cafes to jump on wifi - I'm writing this from the Blue Moose in Morgantown.
I didn't find the defendant yet. I have enough new information to have stuff to do next week writing it up, if I end up getting more involved in this.
I have drafted, not yet mailed, a cease and desist notice and an amicus curiae letter to the court.
Robbin Stewart gtbear at gmail com.
note naacp Clarksburg Branch
Phone: (304)363-6353
Address: 916 West Pike Street # 910, Clarksburg, WV 26301

magistrate warren gizzy davis 306 Washington Ave
Clarksburg, WV 26301
(304) 624-8544

Chapter 3 Article 12 subsection 12a of the West Virginia code states "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."

===
[it] is doubtful that the provisions of the
challenged statute prohibiting anonymous advocacy can
survive constitutional muster. In the recent case of
McIntyre v. Ohio Elections Comm'n, U.S. , 115 S. Ct.
1511 (1995), the Supreme Court retraced the history of
anonymous publications and fo[und that such publications
have played an important role in the progress of mankind.
The decision to publish anonymously, the Court
concluded, like other decisions concerning omissions
[**16] or additions to content of a publication, is an
aspect of freedom of speech protected by the First
Amendment. Id. at 1516.
There are at least two sound policy reasons for
protecting the right of anonymous publication. First, the
decision to publish anonymously may be motivated by
fear of economic or official retaliation, by concern about
social ostracism, or merely by desire to preserve as much
of one's privacy as possible. Id. Second, anonymity
enables a writer who is personally unpopular to ensure
that readers will not prejudge the writer's message simply
because they do not like its proponent. Id. at 1517.
The historical role played by anonymous publication,
and its importance to the development of free institutions,
was traced by Justice Black in Talley v. California, 362
U.S. 60, 64-65, 4 L. Ed. 2d 559, 80 S. Ct. 536 (1960).
Justice Black concluded: "Anonymous pamphlets,
leaflets, brochures and even books have played an
important role in the progress of mankind. . . . Even the
Federalist Papers, written in favor of the adoption of our
Constitution, were published under fictitious names. It is
plain that anonymity has sometimes been assumed for the
most constructive [**17] purposes." Id. In McIntyre, the
Supreme Court struck down, as overbroad, an Ohio
statute which required that any writing intending to
"influence" the voters in any election contain the name of
[*960] the writer. 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. Similarly, the prohibition
on anonymous voter guides at issue in this case does not
narrowly apply to candidates and their supporters, but
Page 5
919 F. Supp. 954, *958; 1996 U.S. Dist. LEXIS 4763, **13
sweeps in the activities of independent groups and
individuals engaging in issue advocacy. 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.
The importance and value [**18] of freedom of
speech in a democratic society have been amply
discussed above and need not be reiterated here.
Protection of these values is of critical public interest.
919 F. Supp. 954, *960; 1996 U.S. Dist. LEXIS 4763, **17
LEXSEE 960 F. SUPP. 1036
WEST VIRGINIANS FOR LIFE, INC., et al, v. CHARLES R. SMITH,
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
WEST VIRGINIA, BLUEFIELD DIVISION

960 F. Supp. 1036; 1996 U.S. Dist. LEXIS 21126
August 29, 1996
COUNSEL: For WEST VIRGINIANS FOR LIFE, INC.,: William C. Porth,
ROBINSON & MCELWEE, Charleston, WV. James
Bopp, Jr., John K. Abegg,
CHARLES R. SMITH,e
OPINION BY: David A. Faber
I. INTRODUCTION
Plaintiffs (hereinafter referred to as "WVFL") filed
this civil action on January 30, 1996, seeking declaratory
[**2] and injunctive relief arising under the Constitution
of the United States of America….
Plaintiff next contends that the prohibition of
anonymous issue advocacy in West Virginia Code §
… § 3-8-12 [is] unconstitutional. Section 3-8-12 prohibits the
publication, issuance or circulation of any anonymous
letter, circular, or other publication tending to influence
voting at any election.
In this court's Memorandum Opinion entered on
March 11, 1996, the court emphasized the historical
importance of anonymous publication, [**15] 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. [**16] Id. at 1520.
In the present case, defendants have not met their
burden of proving that the anonymity provisions of the
Campaign Finance Laws of West Virginia are narrowly
tailored to serve a compelling state interest. Defendants
allege that West Virginia has a compelling interest in "the
avoidance of corruption in candidate elections." (Def.'s
Mem. in Response to Plf's Mot. for S. J. at 11.) However,
there has been no showing by defendants that the
avoidance of corruption is a compelling need, or that the
statute which the state enacted is narrowly tailored to
meet that need. Shrink Missouri Government PAC v.
Maupin, 892 F. Supp. 1246, 1255 (E.D. Mo. 1995). The
state has provided no evidence of such corruption, and
"while the court may agree that [corruption in candidate
Page 5
960 F. Supp. 1036, *1040; 1996 U.S. Dist. LEXIS 21126, **12
elections] is distasteful, that is not a sufficient basis for
interfering with core first amendment rights." Id.
In addition, the West Virginia anonymity provisions,
like the Ohio statute invalidated in McIntyre, do not apply
only to fraudulent, false, or libelous statements. Id.
(quoting McIntyre, 115 S. Ct. at 1517.) Thus, the statute
is not narrowly tailored to apply only to misleading
[**17] or deceptive publications.
Nor are the statutory provisions narrowly tailored so
as to regulate only the anonymous publication of express
advocacy. As stated by this court in its earlier opinion,
the prohibition on anonymous voter guides does not
narrowly apply to candidates and their supporters, but
sweeps in the activities of independent groups and
individuals engaging in issue advocacy. In fact, defendant
Hechler admitted that sections 3-8-12 (a) and (b), as
written, do not apply only to express advocacy situations.
(Mem. in Resp. to Plf's Mot. for S. J. at 10). Moreover,
the provision in section 3-8-5(f) that any scorecard or
voter guide published within sixty days of an election
must include the name of the responsible party, is
essentially a presumption that any such voter guide or
scorecard is express advocacy and can be regulated. The
court explained earlier in its opinion why such a
provision is unconstitutionally overbroad.
[*1042] Finally, defendants argue that McIntyre
does not support a finding that the anonymity provisions
are unconstitutional, because the holding in McIntyre was
limited to an individual who wished to distribute
handbills relating to an issue referendum. [**18] The
court disagrees with defendants' narrow view of the
holding in McIntyre. The Supreme Court based its
holding on the First Amendment's protection of the right
to publish anonymous issue advocacy, stating that
"discussion of public issues and debate on the
qualifications of candidates are integral to the operation
of the system of government established by our
Constitution." Id. at 1518 (citing Buckley, 424 U.S. 1, 14
(1976)). The Court emphasized that it has always held
that "the constitutional guarantee has its fullest and most
urgent application precisely to the conduct of campaigns
for political office." Id. at 1519 (citing Monitor Patriot
Co. v. Roy, 401 U.S. 265, 272, 28 L. Ed. 2d 35, 91 S. Ct.
621 (1971)) Thus, the McIntyre Court concluded that not
only does the First Amendment protect political speech
that "center[s] on a candidate for office," it also protects
speech directed at issue-based elections such as the tax
referendum that Ms. McIntyre wished to influence with
her handbills. Id. at 19. Finally, the Court emphasized
that Ms. McIntyre's speech - "handing out leaflets in the
advocacy of a politically controversial viewpoint - is the
essence of First Amendment expression." [**19] Id.
Thus, although Ms. McIntyre's factual situation involved
only a referendum vote, the Court certainly recognized
that issue advocacy relating to candidate elections is also
protected by the First Amendment.
Accordingly, the court finds that West Virginia has
not shown a compelling state interest to justify its
prohibitions on anonymous issue advocacy. West
Virginia Code §§ 3-8-5(f) and 3-8-12 are
unconstitutionally overbroad, and plaintiffs are entitled to
a permanent injunction.
IV. CONCLUSION
The burdens imposed on political speech by …
3-8-12 of the Campaign
Finances Act of West Virginia cannot withstand strict
scrutiny. Pursuant to the teachings of the United States
Supreme Court, these statutes violate the First
Amendment right to free speech.

Here are some additional cases supporting the right to anonymous free speech.
Doe v.2theMart,140 F.Supp.2d 1088, 4
ACLU v. Ashcroft, _ U.S. _ (2004), 2,4
ACLU of Georgia v. Miller, (977 F.Supp. 1228 (N.D.Ga 1997), 4
ACLU v. Reno, 117 S.Ct. 2329 (1997) 4
ALA v. Pataki, 969 F.Supp 160 (1997) 4
American Constitutional Law Foundation [ACLF], Buckley v., 525 U.S.182
(1999), 2,3,5,6
Anonymous v. Delaware, 2000 Del. Ch. Lexis 84 (2000),
Arkansas Right to Life v. Butler, 29 F.Supp.2d 540, sustained on other
grounds146 F.3d 558 (8th Cir 1998),
Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999) see aclf.
Cyberspace v. Engler, 55 F.Supp.2d 737 (E.D. Mich 1999)
Dennis v. Massachusetts, 329 N.E.2d 706 (Mass. 1975),
Ex Parte Harrison, 110 S.W. 709 (Mo 1908)
Free Speech Coalition v. Ashcroft, 535 U.S. 234 (2002)
Griset v CalFPPC (1999), reversed on other grounds,
Gulf Coast Printers v. Hill, 382 F.Supp. 8011 (S.D.Tx 1974), dismissed
as moot.
Idaho v. Barney, 448 P.2d 195 (1968),
Illinois v. White, 506 NE2d 1284 (Ill. 1987)
Louisiana. v. Moses, 655 So. 2d 779 (La. Ct. App. 1995),
Majors v. Abell, 317 F.3d 719 (7th Cir. 2003), 792 NE2d 18 (Ind.
2003), 361 F.2d 349 (2004),
McIntyre v. Ohio, 514 U.S. 334 (1995)
N.Dakota v. N.D. Ed. Assoc., 262 N.W.2d 731
New York v. Duryea, 351 NYS2d 978 (1974)
Washington ex rel Public Disclosure v. 119 Vote No!, 957 P.2d 691 (1998)
Ogden v. Marendt, (S.D. Ind 2004),
Peterslie v. N.Carolina, (N.Car. 1993)
Griset v. Cal. Fair Practices, 884 P.2d 116 (1994),(1999),(2001)
Riley v. Federation of the Blind, 487 U.S. 781 (1998)
ShrinkMo v. Maupin, 892 F. Supp. 1246 (E.D. Mo. 1995), aff'd, 71 F.3d
1422 (8th Cir. 1995),
Smith v California, 361 U.S. 147 (1959),
Stewart v. Taylor, 953 F.Supp.1047 (S.D.Ind.1997),
Talley v. California, 362 U.S. 60 (1960),
Texas v. Doe, (Tx. Cr.App. 5/14/2003)
Vermont Right to Life v. Sorrell, 221 F.3d 376, 392 (2d Cir. 2000),
Watchtower v. Village of Stratton, 536 U.S. 150 (2002)
West Virginians for Life, Inc. v. Smith, 919 F. Supp. 954 (S.D. W. Va. 1996),
Wilson v Stocker, 819 F.2d 943, 950 (10th Cir. 1987),
Wooley v Maynard, 430 U.S. 705 (1977)
Yes to Life PAC v. Gardner,

# posted by gt @ 11:48 AM