[draft only do not file]
ANDREW NATHAN WORLEY, et al.,
Plaintiffs - Appellants,
versus
FLORIDA SECRETARY OF STATE,
JORGE L. CRUZ-BUSTILLO, et al.,
AMICUS BRIEF OF ROBBIN STEWART
IN SUPPORT OF RECONSIDERATION OR EN BANC REVIEW
Robbin Stewart
Box 29164
Cumberland IN 46229-0164
317.985.6137
gtbear at gmail.com
TABLE OF CONTENTS i
Table of cases ii
Interest of amicus 1.
Summary of argument 2
Question presented 2
Argument
1 McIntyre rather than Citizens United is the controlling precedent
A Scope of brief. Text of statute.
B En banc review is warranted.
C The controlling precedents are cases on individual speech, not corporations.
D History of anonymous speech cases
2 The court used the wrong standard, ignored relevant cases from other circuits, and misconstrued McIntyre.
A Standard of review
B Cases from other circuits find disclaimer statutes unconstitutional.
C Worely and McIntyre have similar facts.
Conclusion. 15
Table of cases
ACLF, Buckley v. American Con. Law Foundation, 525 U.S. 182 (1999)
5, 6
ACLU v Heller, 378 F3d 979 (9th cir. 2004) 12
Anonymous v Delaware, 2000 Del. Ch. Lexis 84 (2000) 1
Arkansas Right to Life v. Butler, 29 F.Supp.2d 540 (W.D.Ark 1998), sustained on other grounds 146 F.3d 558 (8th Cir 1998) 12
Austin v. Michigan Chamber of Commerce , 494 U.S. 652 (1990)
Barnette, West Virginia State Board of Education v., 319 U.S. 624 (1943) 6,7
Bates v Little Rock, 361 U.S. 516 (1960) 8
Belloti, First National Bank of Boston v, 435 U.S. 765 (1978) 2, 4, 5, 11, 15
Broadrick v Oklahoma, 413 U.S. 601 (1973) 9
Broward Coalition v Browning, http://www.ij.org/images/pdf_folder/ first_amendment/florida/order_prelim_injunction.pdf. 3, 9, 10, 11
Brumsickle, Human Life of Wash.Inc. v., 624 F.3d 990, (9th Cir. 2010), cert. denied, 131 S. Ct. 1477 (2011) 5
Buckley v. Valeo, 424 U.S. 1 (1976) 10
Ctr. for Individual Freedom v. Madigan, 697 F.3d 464 (7th Cir. 2012) 5
Citizens Aganst Rent Control v Berkeley, 454 U.S. 290 (1981) 13, 15
Citizens for Responsible Gov't State PAC v. Davidson, 236 F.3d 1174, (10th Cir. 2000) 12
Citizens United v. FEC, 558 U.S. 310 (2010) 2-5, 8, 11, 12, 15
Doe v Mortham, 708 So.2d 929 (Fla.1998) 5, 11, 12, 14,
FEC v Public Citizen, 268 F.3d 1283 (11th Cir. 2001) 2, 4
Hansen v Westerville School District, 43 F.3d 1472 (1994) 13, 14
Majors v Abell, 317 F.3d 719 (7th Cir. 2003), 792 NE2d 18 (Ind. 2003), 361 F.2d 349 (7th Cir 2004) 1
McConnell v FEC, 540 U.S. 93 (2003) 9
Estate of McIntyre v. Ohio Elections Com’n, 514 U.S. 334, 355 (1995)
1-8, 10, 12, 15
Minn. Citizens Concerned for Life, Inc. v. Swanson, 692 F.3d 864, 875 (8th Cir. 2012) (en banc) 5
NAACP v Alabama ex rel. Patterson, 357 U.S. 449 (1958) 7
Nat’l Org. for Marriage v. McKee I, 649 F.3d 34, (1st Cir. 2011), cert. denied, 132 S. Ct. 1635 (2012) 5
Nat’l Org. for Marriage, Inc. v. McKee II, 669 F.3d 34, (1st Cir. 2012), cert. denied, 133 S. Ct. 163 (2012) 5
Red Lion v. FCC, 395 U.S 367 (1969) 8
Reno v ACLU, 521 U.S. 844 (1997) 9
Riley v Nat’l.Fed’n of the Blind, 487 U.S 781 (1988) 6
Salerno, U.S v., 481 U.S. 739 (1987) 8
Sampson v. Buescher, 625 F.3d 1247, (10th Cir. 2010) 3
ShrinkMo v. Maupin, 892 F. Supp. 1246 (E.D. Mo. 1995), aff'd, 71 F.3d 1422 (8th Cir. 1995), 12
Smithers v. Florida Elections Commission, No. 96-5705 (Fla. 2nd Cir., July 17, 1998) 5
Stewart v Taylor, 953 F. Supp. 1047 (1997) 1
Survival Ed. Fund, FEC v., 65 F.3d 285 (2d Cir. 1995) 5
Talley v California, 362 U.S. 60 (1960) 1, 2, 5, 6, 8
Tornillo v. Miami Herald, 418 U.S. 241 (1974) 6
United States v. Playboy Ent. Group, Inc., 529 U.S. 803, 816 (2000) 11
Vt. Right to Life Comm., Inc. v. Sorrell, 221 F.3d 376, (2d Cir. 2000) 12
Washington State Grange, 552 U.S _ (2008) 9
Watchtower Bible & Tract Soc’y of New York City v. Vill. of Stratton, 536 U.S. 150, (2002) 6, 11
Wooley v. Maynard, 430 U.S. 705 (1977) 6
John Peter Zenger, Crown v., (1735) 7
Other Authorities:
Common Sense, An Englishman, 1775 7
Federalist Papers, Cato, 1788 7
Fla. Stat. 106 9
Fla. Stat. 106.143 (2)(c), (5) (b) 3
Florida Constitution, Article I sections 4, 5, 23. 12@
http://ballots.blogspot.com. 1
Interest of Amicus
I was the plaintiff in Stewart v Taylor, 953 F. Supp. 1047 (1997), which found Indiana’s disclaimer statute unconstitutional, in the context of my sign that read “Robbin Stewart for Township Board Vote Tuesday”. I was counsel in Anonymous v Delaware, 2000 Del. Ch. Lexis 84 (2000), and Majors v Abell, 317 F.3d 719 (7th Cir. 2003), 792 NE2d 18 (Ind. 2003), 361 F.2d 349 (7th Cir 2004.) Since 1997, I have been monitoring states’ compliance with the McIntyre and Talley decisions. I am a former partner in Tavel & Stewart Public Interest Law Firm, currently retired.
I blog about election law at http://ballots.blogspot.com. I have submitted amicus briefs to the Indiana, South Carolina and United States Supreme Courts. An amicus brief to the Harrison County, WV, Superior Court helped get charges dropped against Martin Shaffer, a city council member who had been arrested in connection with the disclaimer on a newspaper critical of city officials. I am a natural person, not a corporation. No plaintiff’s lawyer drafted or paid for this brief, which is the sole product of my limited personal resources. A motion for leave to file is enclosed herewith.
Summary of argument
Question presented:
Did the 11th circuit panel err in finding florida’s disclaimer statute, Fla. Stat. 106.143, constitutional?
Talley v California, 362 U.S. 60 (1960) and McIntyre v Ohio Elections Com’n., 514 U.S. 334, 355 (1995), are the controlling cases, rather than Citizens United, 558 U.S. 310 (2010), or First National Bank of Boston v. Belloti, 435 U.S. 765 (1978). This is a case about speech by natural persons, and the court erred in relying on cases about corporate speech.
En banc review is appropriate to correct the errors of this case and FEC v Public Citizen, 268 F.3d 1283 (11th Cir. 2001), a previous panel.
The decision fails to take into account seven controlling cases, gets the standard of review wrong, ignores contrary cases from other circuits, does not mention a previous 11th circuit case on this topic, misstates the facts of McIntyre, and ignores the general tenor of Citizens United.
Argument.
1 McIntyre rather than Citizens United is the controlling precedent.
A Scope of brief. Text of statute.
The topic of this amicus brief is the erroneous holding by the panel that Florida’s censorship of political speech by compelling a disclaimer is constitutional. This brief does not address the panel’s ruling on disclosure issues in Part I. While I don’t agree with those rulings, and prefer the approach taken in Sampson v. Buescher, 625 F.3d 1247, (10th Cir. 2010)
and Broward Coalition v Browning, it is not as clearly erroneous as is part II.
The text of the statute reads in part,
Fla. Stat. 106.143 (2)(c) Any other political advertisement published, displayed, or circulated before, or on the day of, any election must prominently:
1. Be marked “paid political advertisement” or with the abbreviation “pd. pol. adv.”
2. State the name and address of the persons paying for the advertisement.
3. State whether the advertisement and the cost of production is paid for or provided in kind by or at the expense of the entity publishing, displaying, broadcasting, or circulating the political advertisement.
(d) Any political advertisement made pursuant to s. 106.021(3)(d) must prominently state the name and address of the political committee or political party paying for the advertisement.
5 (b) Any person who makes an independent expenditure for a political advertisement shall provide a written statement that no candidate has approved the advertisement to the newspaper, radio station, television station, or other medium for each such advertisement submitted for publication, display, broadcast, or other distribution. The advertisement must also contain a statement that no candidate has approved the advertisement.
B En banc review is warranted.
Each of these kinds of compelled speech is unconstitutional.
The panel is wrong about the law and should correct its opinion. But if it chooses not to, or finds that it lacks authority to do so in light of FEC v Public Citizen, 268 F.3d 1283 (11th Cir. 2001), the case should be taken up en banc by the whole 11th circuit. If the circuit agrees with the result, it needs a better reasoned opinion. But controlling cases of the Supreme Court require reversal.
C The controlling precedents are cases on individual speech, not corporations.
Talley v. California, 362 U.S. 60 (1960), and McIntyre v. Ohio, 514 U.S. 334, 355 (1995), are the controlling cases most on point, rather than Citizens United v. FEC, 558 U.S. 310 (2010)(“CU”) or First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), so the court erred in upholding the statute. This is a case about speech by natural persons, and the court erred in relying on cases about corporate speech.
In addition to CU and Belloti, NOM v McGee I and II, Madigan, Brumsickle and Minn. Citizens Concerned for Life are cases about corporate speech which are legally distinguishable here. Nat’l Org. for Marriage, Inc. v. McKee II, 669 F.3d 34, (1st Cir. 2012), Nat’l Org. for Marriage v. McKee I, 649 F.3d 34, (1st Cir. 2011), Ctr. for Individual Freedom v. Madigan, 697 F.3d 464, (7th Cir. 2012); Minn. Citizens Concerned for Life, Inc. v. Swanson, 692 F.3d 864, (8th Cir. 2012)(en banc); Human Life of Wash.Inc. v. Brumsickle, 624 F.3d 990, (9th Cir. 2010).
“In for a calf is not in for a cow”, and Florida might have narrowly drafted a statute to require disclaimers on ads by corporations (CU), or ads seeking to raise funds (FEC v. Survival Ed. Fund, 65 F.3d 285 (2d Cir. 1995)), or a statute limited to telephone calls, but it didn’t, and the statute, either as written or as construed by the Florida courts in Doe v Mortham, 708 So.2d 929 (Fla.1998) and Smithers v Fla. E. C, No. 96-5705 (Fla. 2nd Cir., July 17, 1998), runs squarely afoul of the holdings of Talley, McIntyre, Buckley v. American Con. Law Foundation, 525 U.S. 182 (1999)(“ACLF”), Wooley v. Maynard 430 U.S. 705 (1977), Riley v Nat’l.Fed’n of the Blind, 487 U.S 781 (1988), and Tornillo v. Miami Herald, 418 U.S. 241 (1974). It is unreasonable to think that CU overruled all these cases without mentioning them.
D History of anonymous speech cases
Talley, McIntyre, ACLF, and Watchtower Bible & Tract Soc’y of New York City v. Vill. of Stratton, 536 U.S. 150, 170 (2002), the anonymous speech cases, are part of a larger set of cases holding that the government may not, generally, compel speech, including Tornillo, Wooley, and Riley. Wooley explains that because as Americans we “Live Free or Die”, we cannot be compelled to say “Live Free or Die” on our cars.
Compelled speech is associated with dictatorial regimes, the rack, the thumbscrew, the inquisition. “John Lilburne was whipped, pilloried
and fined for refusing to answer questions designed to get evidence
to convict him or someone else for the secret distribution of books
in England.” Talley v California. If Americans are aware of any one of their rights, it is the right to remain silent. Talley, McIntyre, Wooley, Tornillo, Barnette, ACLF, and Watchtower are cases about the the right to remain silent, under the First Amendment. West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) is a free exercise case.
Here the government is commandeering the speech of private persons, and not even offering just compensation for the theft. Other than McIntyre, the panel’s opinion mentions none of these cases. The panel’s opinion is far outside the mainstream of American thought, and ignores decades of Supreme Court opinions which, as an inferior court in the federal system, it is obligated to follow.
The First Amendment had its historical origins in John Peter Zenger’s case in 1735, in which an American jury refused to convict a printer for publishing books anonymously. The intent of the founders was to protect speech such as Zenger’s and Worley’s.
Justice Thomas’s concurrence in McIntyre traces the importance of anonymous speech in the founding era, with documents such as Common Sense and the Federalist Papers having an important role in the revolution and the states’ ratification of the constitution.
In 1958, the Supreme Court found a right to privacy in the First Amendment such that the NAACP could not be compelled to disclose its membership list. An amicus brief by the American Jewish Congress highlighted the importance of anonymity to a free society. http://archive.adl.org/civil_rights/ab/Website%20Amicus%20Brief%20-%20Natl%20Assoc%20for%20Adv%20of%20Col%20Peo%20v%20St%20of%20.pdf. See also Bates v Little Rock, 361 U.S. 516 (1960) . This right to privacy was held to render disclaimer statutes unconstitutional, in Talley v California, 362 U.S. 60 (1960). Talley is good law today, and was not overturned by CU, which created a narrow exception for election speech by corporations. McIntyre held that there is no general elections exception to the rule in Talley. Talley did not specifically address radio ads, but the panel opinion has presented no thought out rationale of why the freedom of speech should not apply to radio. Red Lion v. FCC, 395 U.S 367 (1969) rejected compelled speech on radio.
Besides, plaintiffs raise both facial and as-applied challenges. (The panel erred in addressing only the facial challenge, but a facial challenge is sufficient as to the disclaimer issue.) Facially, the statute is not limited to radio, but would include fliers such as McIntyre’s or Talley’s. Salerno is not the test for facial challenges in First Amendment when overbroad rules include a great deal of protected content in their reach, chilling expression. See Washington State Grange, Broadrick v Oklahoma, 413 U.S. 601 (1973).
The panel would “burn the global village to roast the pig”. Reno v ACLU, 521 U.S. 844 (1997), held that the First Amendment applies to the internet; a speech need not be on paper to be protected by the constitution. Citizens United also does not mention radio. The instant case is not founded on a mistaken argument about express advocacy, as in CU and McConnell v FEC; instead it directly relies on the controlling precedent of McIntyre, which is in turn founded on Talley. It is deplorable that 53 years after Talley the 11th circuit panel is still resisting the progress of the civil rights movement.
A previous case on a different section of 106 stated
“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 Coalition v Browning, http://www.ij.org/images/pdf_folder/first_amendment/florida/order_prelim_injunction.pdf.
The 11th circuit should rule in harmony with Broward and McIntyre.
2 The court used the wrong standard, ignored relevant cases from other circuits, and misconstrued McIntyre.
A Standard of review
In its discussion of the standard of review, pp 4-13, the court fails to distinguish between disclosure and disclaimers. These are separate categories, and have a different standard of review. The Court has at times used the expression “exacting scrutiny”, but it means something very different in McIntyre than in Buckley v. Valeo. Valeo is a permissive standard, requiring that regulation be reasonably related to a legitimate government interest. McIntyre’s exacting scrutiny is actually exacting: it requires narrow tailoring to overriding government interests. I know of no authority distinguishing “overriding” from “compelling”; it is strict scrutiny by another name. Neither term seems to be really defined, but Justice Scalia, dissenting in McIntyre, refers to the standard as “the kiss of death.” The panel’s opinion erred in failing to apply the kiss of death standard to its analysis of Florida’s unconstitutional disclaimer statute.
If this court persists in erroneously continuing to use permissive review, I can present arguments that the disclaimer statute fails permissive review, because censorship of political speech by natural persons is not a legitimate state objective in light of the florida constitution’s bill of rights, which protects speech, petition, and privacy. Art. I sections 4, 5, 23.
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) (quoting United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 816 (2000). Broward Colaition v Browning, id.
B Other circuits have found disclaimer statutes unconstitutional.
“The First Amendment protects political speech; and disclosure permits
citizens and shareholders to react to the speech of corporate entities in a proper way.” Slip op. at 14 citing CU. at 371, 130 S. Ct. at 916.
CU, like Belloti, is a case about corporate speech. In each case, the Court struck down bans on corporate speech, replacing the bans with less burdensome disclosure or disclaimers. In Belloti the disclaimer comment was dicta; in CU it was part of the holding. Neither case is on point in this case about speech by four natural persons who are not corporations. Austin, now overruled, discussed ways in which corporate wealth had potential to distort the marketplace of ideas. There is a legitimate state interest in limiting such distortion. These factors are not present in a case like this with no corporate speech.
Since the relevant landmark is McIntyre rather than CU, the court should consider how other circuits have addressed these issues.
ShrinkMo v. Maupin, 892 F. Supp. 1246 (E.D. Mo. 1995), aff'd, 71 F.3d 1422 (8th Cir. 1995), Arkansas Right to Life v. Butler, 29 F.Supp.2d 540 (W.D.Ark 1998), sustained on other grounds 146 F.3d 558 (8th Cir 1998), Citizens for Responsible Gov't State PAC v. Davidson, 236 F.3d 1174, (10th Cir. 2000), Vt. Right to Life Comm., Inc. v. Sorrell, 221 F.3d 376, 392 (2d Cir. 2000), ACLU v Heller 378 F3d 979 (9th cir. 2004) are on point. The cases are not unanimous; since Talley the circuits have been split. The panel has joined the wrong side of that split.
C Facts of McIntyre are similar.
The facts of the instant case closely parallel McIntyre. A myth has arisen over the years that McIntyre was some kind of a lone gunman. Doe v Mortham, 708 So.2d 929 (Fla.1998), makes this error, when it construes the Florida disclaimer statute to not apply to speech by lone individuals using their own modest resources. There is poetic language in the McIntyre opinion that can create this impression, but those were not the facts of the case.
“There are, of course, some activities, legal if engaged in by one, yet illegal if performed in concert with others, but political expression is not one of them.” Citizens Aganst Rent Control v Berkeley.454 U.S. 290 (1981)
Hansen v Westerville School District, 43 F.3d 1472 (1994) tells McIntyre’s story in more detail. Hansen is an unpublished opinion cited here not for any legal holding, but for its facts.
The plaintiffs, residents of Westerville, Ohio, were members of an organization called Citizens Against Tax Waste ("CATW"). This organization opposed a series of tax levies proposed by the Westerville City School District Board of Education.
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 case goes on to describe how Gordon Rood was arrested and acquitted for insisting that members of his group be allowed to speak at a later meeting. Five spoke. At another meeting, 60 people spoke. Hansen, Id. So McIntyre did not act alone. She was part of two circles of activity. The inner circle was her, her husband, her son, and the son’s girlfriend. The husband did not pass out fliers, but co-owned the printing press McIntyre used, and continued the case after she passed away.
The larger circle was Citizens Against Tax Waste, which included at least the five people who spoke, and probably dozens more. CATW had defeated the tax referendum twice before, suggesting some degree of broad community support.
The panel’s assumption that Worely’s case is not like McIntyre’s is wrong on the facts. Worely’s group had 4 people; so did McIntyre’s inner group. Her larger group had at least 9.
“In her case, and in contrast to ours, Mrs. McIntyre represented only herself in handing out handbills she had composed, and which opposed a school tax referendum.” Slip op at 18.
The dissent by J. Harding, joined by J. Grimes, in Doe v. Mortham is worth reading.
Indeed, the speech in which Mrs. McIntyre engaged-handing out leaflets in the advocacy of a politically controversial viewpoint-is the essence of First Amendment expression.... The majority seems to miss the forest while wandering through the trees. I read both Buckley and McIntyre as articulating far-reaching principles of our First Amendment rights. In McIntyre, the Supreme Court recognized 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.” Based upon McIntyre, I conclude that Florida's compelled self-identification as to political advertisements is an unconstitutional infringement of First Amendment rights. Doe v Mortham, 708 So.2d 929 (Fla.1998).
C. CU actually helps plaintiffs more than the decision admits.
The panel opinion relies on Citizens United, Belloti, Citizens against Rent Control, and McIntyre. What these cases have in common is that each applied strict scrutiny to core political speech and struck down regulations as unconstitutional. A closer look at these cases is instructive, rather than taking a few words out of context. Citizens United is a case which expands rather than contracts speech under the First Amendment and as a whole does not support the censorship of political speech at issue here. A longer brief could go into more detail.
Conclusion
The panel’s decision erred in finding Florida’s statute constitutional. Talley and McIntyre are the leading cases most on point and require a finding of unconstitutionality.
CERTIFICATE OF COMPLIANCE
In accordance with Rules 32(a)(7)(B) and (C) of the Federal Rules of
Appellate Procedure and Circuit Rule 32(a), the undersigned certifies that the
accompanying brief has been prepared using 14-point typeface, proportionally
spaced, with serifs. According to the word processing system used to prepare the
brief, the brief contains -@-------- words , exclusive of the
table of contents, table of authorities, attorney identification, and certificates of
service and compliance.
Dated: @
/s/ Robbin Stewart, Amicus Curia
omit from printing:
56 Forsyth St. N.W. Atlanta, Georgia 30303
Clerk's Office Main Phone Number:
404-335-6100
