IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 12-14074

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Appeal from the United States District Court

for the Northern District of Florida

[draft only do not file]

ANDREW NATHAN WORLEY,  et al.,

Plaintiffs - Appellants,

versus

FLORIDA SECRETARY OF STATE,

JORGE L. CRUZ-BUSTILLO, et al.,

MOTION FOR LEAVE TO FILE AMICUS BRIEF

IN SUPPORT OF RECONSIDERATION OR EN BANC REVIEW

Robbin Stewart

Box 29164

Cumberland Indiana 46229-0164

317.985.6137

                                                                  gtbear at gmail.com

June @, 2013

Comes now Robbin Stewart and for his motion for leave to file amicus brief states as follows.

     I have written a brief in support of rehearing or rehearing en banc. I ask the court for leave to file it.

Certificate of interested persons and corporate disclosure statement:

I am Robbin Stewart. I write only for myself, since I am not licensed to practice law in the 11th circuit. I am a natural person and not a corporation, and am not owned by a corporation. I have no financial stake in this litigation, only an academic interest.

  My brief addresses solely the issue of the constitutionality of 106.143, the political attribution requirement, which was part II of the panel’s opinion. The court held that the government may compel part of the content of  plaintiffs’ proposed radio ad. Unwilling to comply, the ads did not air, and their core political speech was silenced.

  I became familiar with this topic in 1996, when I filed Stewart v Taylor, 953 F. Supp. 1047 (1997), which found Indiana’s disclaimer statute unconstitutional. I served as counsel in several cases on the topic, including 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). I have written several amicus briefs on this and other topics, and have filed comments with the FEC and testified to my state legislature. I believe that my specialized expertise on this topic may be helpful to the court.

    I have made a good faith effort to comply with the rules for filing, and ask that any minor procedural irregularities if any be waived.

  I learned of the decision via Richard Hasen’s electionlawblog.com,

wrote an article about it at my blog, http//ballots.blogspot.com,

and decided to draft an amicus brief, assuming that a motion for reconsideration was likely.

  I don’t know any of the parties or their counsel, although I am generally a fan of the work of the Institute of Justice which is counsel for plaintiffs. I am retired and no longer practice law, but feel that my pro bono obligations continue, which is one of the motives for my occasional amicus work.

    The topic of the constitutionality of disclaimer regulations has been made more complex by Citizens United, in which 8 members of the court reached a conclusion opposite of the decision of 9 members of the court in 2002 in Buckley ACLF, but did not explain the scope or reach of their decision.

    My brief argues that Citizens United should best be understood as addressing speech by corporations, and is not applicable to the facts of this case about natural persons. Therefore the panel decision was wrong. In addition to being wrong, it was not well argued, making no mention of the controlling precedents such as Talley v California, Buckley v. ACLF, Watchtower v. Stratton, Wooley v. Maynard, Riley v, Nat’l Fed. of the Blind, and Tornillo v. Miami Herald, or the contrary cases from other circuits, or the Florida cases interpreting the statute. The brief also provides additional background on McIntyre v Ohio, the leading controlling precedent, from Hansen v. Westerville, and explains why en banc review is called for because of a previous erroneous panel decision on point, FEC v Public Citizen, 268 F.3d 1283 (11th Cir. 2001).

    After the panel ruled, the Court issued an opinion in Agency for International Development v Alliance for Open Society International, Inc, _ U.S. _ (6/20/2013), which is flatly incompatible with the panel’s opinion. Citizens United is no longer the Supreme Court’s most recent opinion on compelled speech. My brief, written before AID v AOSI was handed down, had cited Barnette and Wooley. The court has now reiterated these basic principles. Reconsideration of part II is appropriate in light of this new opinion.

 It is, however, a basic First Amendment principle that “freedom of speech prohibits the government from telling people what they must say.” Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U. S. 47, 61 (2006) (citing West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943), and Wooley v. Maynard, 430 U. S. 705, 717 (1977)). Agency for International Development v Alliance for Open Society International, Inc, _ U.S. _ (6/20/2013)

Respectfully submitted,

Robbin Stewart

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