Gaspee project v mederoz notes for amivus [to do: find a template for amicus] Reasons for cert Circuit split. After talley footnote two After mcintyre After aclf Citizens caused confusion. First case for bonta. The instant case conflicts with about a dozen supreme court cases about compelled speech, and undermines the authority of the court’s precedents. Summary of argument: This case presents two issues, one about disclosure, a close case, and one about disclaimers, a plain error the court should reverse. This brief is about the disclaimer issue. This is the first case to attempt to apply the new standard announced in Bonta, and maybe gets it wrong, so the court could take it for that reason, to further explicate the new Bonta standard. In Bonta, several concurring opinions suggested that a stricter yet scrutiny may be needed. This case would be an opportunity to address those concerns. This brief first details the circuit split on whether censorship by disclaimer is constitutional, as a reason to take the case to resolve the split. In Citizens United, 2010, the court issued dicta 8-1 praising such censorship, in the limited context of corporate speech, after ruling 9-0 in buckley v aclf that disclaimer rules are unconstitutional, so lower courts have been confused and the split widened. The Court should clarify that what it meant in Citizens was limited to corporate speech and was not the holding of the case. Town of Vincent v Reed, holding that political sign rules get strict scrutiny, should have cleared this up, but didn’t. Something like Cooper v Aaron is needed to clear the air and settle the matter. The second part of the brief addresses the merits of the disclaimer claim, and argues that Talley and McIntyre should be followed, not ignored. Ideally, the court should give plaintiffs some kind of teeth, so that officials who defy Talley can be penalized, and plaintiffs who challenge the obstacles to democratic process can be rewarded. An endless cycle of injunctions is not enough. Currently, election officials have little incentive to follow the law, rather than the statutes, or their own personal political preferences. This is corruption and oathbreaking, and prevents free and open elections, leaving the form, but not the substance. Talley v California in 1960 announced a rule that the government may not require disclaimers on literature such as a political flier. Yet in McIntyre, footnote 2 of Justice Scalia’s dissent indicate that nearly 50 states had such rules. (A number of these rules had already been found unconstitutional, which Scalia neglected to mention.) The majority of courts followed Talley, but a minority refused; there has been a split in the circuits ever since, a split that continues today as Gaspee Project shows. McIntyre was intended to resolve the split, holding that strict scrutiny applies and that there is no election exception to the rule in Talley. The Ohio Supreme Court had erred in applying intermediate scrutiny under Valeo, and allowing censorship by requiring disclaimers, over a dissent. Buckley v ACLF carefully distinguished between disclaimers, which get strict scrutiny, and disclosure, which got Valeo’s permissive “exacting” scrutiny. This was a case about a petition drive to legalize marijuana in Colorado. And yet the split continued. In McConnell, the court denied one particular as-applied challenge to a disclaimer, where the argument was that the statement in question was not express advocacy. The court disagreed. Justice Thomas, dissenting, would have applied McIntyre. In McConnell, the Court, at note 88, stated that McIntyre was still good law. Nonetheless, this confused Judge Posner at the 7th circuit, in Majors v Abell, and the split continued. [possibly quote posner about indeterminacy.] Zwickler v Golden, 1969 disclaimer case improperly dismissed on mootness grounds. Zwickler’s congressman had become a judge, but Zwickler was still going to write to his new congressman about his position on Israel, so the case wasn’t really moot. This confusion became worse after Citizens United, discussed below. [make list by year of the cases on the wrong side of the split.] Notably, the federal election Commission has continued to try to enforce disclaimer rules contrary to the rule in talley, and has an ongoing controversy about to what extent to apply these rules to the internet. They seek to “burn the village to roast the pig.” Reno v ACLU. The FEC often deadlocks, with the gop members refusing to enforce the unconstitutional disclaimer rules, while the democratic members keep trying. It is important that the court resolve the issue in a way the FEC must follow, and cease its improper censorship of federal elections. Similarly at the FCC, which censors speech on radio and TV. Ct. case. 255 C. 78. Seymour v. Elections Enforcement Comm. Supreme Court of Connecticut. Dec 19, 2000. 762 A.2d 880 (Conn. 2000) Riley in kenticky v terry? Kentucky Right To Life, Inc. v. Terry, 108 F.3d 637 (6th Cir.1997), cert denied, 522 U.S. 860, 118 S.Ct. 162, 139 L.Ed.2d 106 (1997). Gable v patton https://caselaw.findlaw.com/us-6th-circuit/1396718.html Ky.Rev.Stat. § 121.190(1) Worely Worley, et al. v. FL Secretary of State, et al., No. 12-14074 (11th Cir. 2013) Nom v mckee Public citizen 11th circuit https://www.fec.gov/legal-resources/court-cases/fec-v-public-citizen-inc/ Majors v abell State v acey 633 S.W.2d 306 (1982) https://law.justia.com/cases/tennessee/supreme-court/1982/633-s-w-2d-306-2.html Wilkinson? Green mountain futures Morefield v. Moore, 540 S.W.2d 873 (1976) Supreme Court of Kentucky. Zwickler v. Coota, 290 F. Supp. 244 (D.C.E.D.N.Y.1968), In United States v. Insco, 365 F. Supp. 1308 (D.C.M.D.Fla.1973), a Florida statute made it a criminal offense to publish or distribute any "writing or other statement" relating to or concerning a candidate for election to the federal Congress unless it contained the name or names of the persons or organizations responsible for it. Jack P. Insco, a Republican, and William Gunter, a Democrat, were the nominees of their respective parties for election to the House of Representatives in 1972, a presidential year. Insco was indicted for causing to be distributed a quantity of bumper stickers reading "McGOVERN-GUNTER"[3] which did not bear the name of the sponsor. On a motion to dismiss the indictment the federal district court held that Talley did not apply and that the statute did not violate the First Amendment. 1 Morefield v Moore, 2 Wilkinson v Jones, 3 KY RtL v terry, 4 Gable v Patton, Freedom Forum v FEC are examples of cases where Kentucky courts have refused to Follow the rule in Talley. The geographic scope of the Kentucky exception varies over time - see Peterslie v NC, State v. Petersilie, 432 S.E.2d 832 (1993), 334 N.C. 169. Wilkinson v. Jones, 876 F. Supp. 916 (W.D. Ky. 1995) [Freedom Forum v FEC was an express advocacy case; plaintiff did not refer to talley or mcintyre.] Vermont v. Green Mountain Future, 2012 VT 87. N carolina peterslie merits. Talley mcintyre aclf watchtower Barnette Wooley tornillo riley Aid v open society janus nifla v beccera , the Supreme Court has repeatedly held that the “freedom of speech prohibits the government from telling people what they must say.” Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., 570 U.S. 205, 213 (2013) Janus v. Am. Fed’n of State, Cnty. & Mun. Emps., Council 31, 138 S. Ct. 2448, 2463 (2018) 1 sentence from each. Other L.D. Management Co. v. Gray, No. 20-5547 (6th Cir. 2021) Ky case about billboards, lion’s den https://www.justice.gov/opa/press-release/file/1252601/download ky wedding photographer, brief by usa. The Supreme Court has made plain that the government cannot “[c]ompel[] individuals to mouth support for views they find objectionable.” Janus v. Am. Fed’n of State, Cnty. & Mun. Emps., Council 31, 138 S. Ct. 2448, 2463 (2018). Just last year, in fact, the Eighth Circuit held that Minnesota could not force wedding videographers to film weddings that they did not wish to film. Telescope Media Grp. v. Lucero, 936 F.3d 740, 750-758 (8th Cir. 2019). The same principle applies here. 2000 Ct. case. 255 C. 78. Seymour v. Elections Enforcement Comm. Supreme Court of Connecticut. Dec 19, 2000. 762 A.2d 880 (Conn. 2000) 1997 Riley in kenticky v terry? Kentucky Right To Life, Inc. v. Terry, 108 F.3d 637 (6th Cir.1997), cert denied, 522 U.S. 860, 118 S.Ct. 162, 139 L.Ed.2d 106 (1997). 1998 Gable v patton https://caselaw.findlaw.com/us-6th-circuit/1396718.html Ky.Rev.Stat. § 121.190(1) 2013 Worley, et al. v. FL Secretary of State, et al., No. 12-14074 (11th Cir. 2013) 2012 Nom v mckee National Organization for Marriage v. McKee, 723 F. Supp. 2d 245 2012. 2001 Public citizen 11th circuit https://www.fec.gov/legal-resources/court-cases/fec-v-public-citizen-inc/ Majors v abell Majors v Abell, 317 F.3d 719 (7th Cir. 2003), 1982 State v acey 633 S.W.2d 306 (1982) https://law.justia.com/cases/tennessee/supreme-court/1982/633-s-w-2d-306-2.html Wilkinson? Green mountain futures 1976 Morefield v. Moore, 540 S.W.2d 873 (1976) Supreme Court of Kentucky. Zwickler v. Coota, 290 F. Supp. 244 (D.C.E.D.N.Y.1968), 1973 In United States v. Insco, 365 F. Supp. 1308 (D.C.M.D.Fla.1973), a Florida statute made it a criminal offense to publish or distribute any "writing or other statement" relating to or concerning a candidate for election to the federal Congress unless it contained the name or names of the persons or organizations responsible for it. Jack P. Insco, a Republican, and William Gunter, a Democrat, were the nominees of their respective parties for election to the House of Representatives in 1972, a presidential year. Insco was indicted for causing to be distributed a quantity of bumper stickers reading "McGOVERN-GUNTER"[3] which did not bear the name of the sponsor. On a motion to dismiss the indictment the federal district court held that Talley did not apply and that the statute did not violate the First Amendment. 1 Morefield v Moore, 2 Wilkinson v Jones, 3 KY RtL v terry, 4 Gable v Patton, Freedom Forum v FEC are examples of cases where Kentucky courts have refused to Follow the rule in Talley. The geographic scope of the Kentucky exception varies over time - see Peterslie v NC, 1993 State v. Petersilie, 432 S.E.2d 832 (1993), 334 N.C. 169. 1995 Wilkinson v. Jones, 876 F. Supp. 916 (W.D. Ky. 1995) [Freedom Forum v FEC was an express advocacy case; plaintiff did not refer to talley or mcintyre.] 2012 Vermont v. Green Mountain Future, 2012 VT 87. N carolina peterslie merits. Talley mcintyre aclf watchtower Barnette Wooley tornillo riley Aid v open society janus nifla v beccera , the Supreme Court has repeatedly held that the “freedom of speech prohibits the government from telling people what they must say.” Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., 570 U.S. 205, 213 (2013) Janus v. Am. Fed’n of State, Cnty. & Mun. Emps., Council 31, 138 S. Ct. 2448, 2463 (2018) 1 sentence from each. Other L.D. Management Co. v. Gray, No. 20-5547 (6th Cir. 2021) Ky case about billboards, lion’s den https://www.justice.gov/opa/press-release/file/1252601/download ky wedding photographer, brief by usa. The Supreme Court has made plain that the government cannot “[c]ompel[] individuals to mouth support for views they find objectionable.” Janus v. Am. Fed’n of State, Cnty. & Mun. Emps., Council 31, 138 S. Ct. 2448, 2463 (2018). Just last year, in fact, the Eighth Circuit held that Minnesota could not force wedding videographers to film weddings that they did not wish to film. Telescope Media Grp. v. Lucero, 936 F.3d 740, 750-758 (8th Cir. 2019). The same principle applies here. Timeline of the split - a non-exhaustive cases that refused to follow Talley. 1. 1973 Insco, dcmd fla 2. 1976 Moorefield v Moore, KY 3. 1982 TN v Acey, TN 4. 1993 NC v Petersilie, NC 5. 1994 McIntyre v. OH (overruled), OH 6. 1995 Wilkinson v Jones, KY 7. 1997 KY RTL v Terry, 6th 8. 1997 Arkansas Right to Life v. Butler, 29 F. Supp.2d 540 9. 1998 Gable v Patton, 6th 10. 2000 Seymour v Ct, CT 11. 2001 Public Citizen v FEC, 11th 12. 2003, 2004 Majors v Abell, 7th 13. 2012, NOM v McKee, 1st. 14. 2012 VT v Green Mountain Future, VT. 15. 2013, Worely v Roberts 749 F. Supp. 2d 1321 (N.D. Fla. 2010) (better cite, 11th?) 16. 2015 Iowa Right to Life Comm., Inc. v. Tooker 133 F. Supp. 3d 1179 (S.D. Iowa 2015)(corporations) 17. 2019 Lewison v. Hutchinson, 929 N.W.2d 444 (Minn. Ct. App. 2019) 18. 2020, 2021, Gaspee Project v Mederos. First Additionally, there have been attorney general opinions in at least Delaware and Nebraska. So on one side of the split there are 16 cases from the First, Sixth, Seventh, and 11th circuits, plus CT, KY, NC, TN, VT, plus AGOs in at least NE and DE. On the other side are at least 43 cases from a number of jurisdictions. This includes at least the 9th Circuit, 10th, and the states of WA, OR, LA, MA, ME, DE, CO, CA, NY, IL, ID, ND, TX. So there is a significant split, that this court should attempt to resolve. Wilson v stocker, Heller v ACLU of Nevada, 9th (and see Yamada), 1 ACLU v Heller, 378 F3d 979 (9th Cir. 2004), 2 American Civil Liberties Union of Ga. v. Miller, 977 F.Supp. 1228 (N.D. Ga. 1997), 3 Anonymous v. Delaware, 2000 Del. Ch. Lexis 84 (2000), 4 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),] 5 City of Bogalusa v. May, 212 So.2d 408 (La. 1968), 6 Commonwealth v Dennis, 368 Mass. 92, 329 N.E.2d 706 (1974), 7 Cyberspace v Engler, (E.D.MI 2001) 8 Doe v 2theMart, 140 F.Supp.2d 1088, 29 Media L. Rep. 1970 (2001), 9 Doe v. Mortham, 708 So.2d 929 (Fla.1998) 10 Ex Parte Harrison, 110 S.W. 709 (Mo 1908), 11 Griset v. Fair Political Practices Commission, 69 Cal. App. 4th 818, 82 Cal. Rptr.2d 25 (1999), reversed on other grounds, 14 [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, ] 12 Idaho v. Barney, 448 P.2d 195 (1968), 14, 23 13 Illinois v White, 506 NE2d 1284 (Ill. 1987), 14 In re Opinion of the Justices, 324 A.2d 211 (Del. 1974), 15 Louisiana. v. Moses, 655 So. 2d 779 (La. Ct. App. 1995), 16 Louisiana v. Fulton, 337 So.2d 866 (La. 1976), [McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 357, 115 S.Ct. 1511, 131 L.Ed.2d 426 ](1995), 6, 8, 10, 11, 12, 17, 18, 21, 23 [Miami Herald v Tornillo, 418 U.S. 241 (1974)] 17 Michael James Berger, aka Magic Mike v. City of Seattle, (9th Cir. 6/24/2009) , 18 Mulholland v. Marion County Election Bd. (S.D. Ind __) [NAACP v. Alabama, 357 U.S. 449, 463, 78 S.Ct. 1163, 1172, 2 L.Ed.2d 1488 (1958)] 19 New York v. Duryea, 351 NYS2d 978 (1974), 20 Ogden v. Marendt, 264 F.Supp. 2d 785 (S.D. Ind. 2003) (S.D. Ind 2004), 21 Opinion of the Justices, 306 A.2d 18 (Maine 1973), 22 People v Drake, (Cal.), 23 People v. Bongiorni, 205 Cal. App. 2d Supp. 856 (Sup. Ct. 1962), 13 24 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)] 25 Rosen v. Port of Portland, 641 F.2d 1243, 1246 (9th Cir.1981), 26 Schuster v. Imperial County Mun. Ct., 167 Cal. Rptr. 447 (Cal. Ct. App. 1980), cert. denied, 450 U.S. 1042, 14, 23 27 ShrinkMO v. Maupin, 892 F. Supp. 1246 (E.D. Mo. 1995), aff'd, 71 F.3d 1422, 28 Smithers v Fla. Elections, http://www.fec.state.fl.us/decisions/Smithers96-85.PDF, 29 State of Louisiana v. Burgess, 543 So.2d 1332 (1989), 30 State v. N. Dakota Ed. Assoc., 262 N.W.2d 731 (N.D. 1978), 31 Stewart v Taylor, 953 F.Supp.1047 (S.D.Ind.1997), 32 Tattered Cover (CO), [Talley v. California, 362 U.S. 60, 65, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960)] 33 Texas v. John Doe, 61 S.W.3d 99, (Tx.App. 2001) 34 Town of Lantana v Pelczynski, 290 So. 2d 566 (Fla. App. 1974), 35 Vermont Right to Life v. Sorrell, 221 F.3d 376, 392 (2d Cir. 2000), 36 Virginia Society for Human Life Inc. v. Caldwell, 152 F3d 268 (4th Cir. 1998), 37 Washington ex rel. Public Disclosure v. 119 Vote No!, 957 P.2d 691 1998), [Watchtower v Stratton, 536 U.S. 150 (2002)] 38 West Virginians for Life v Smith, 919 F. Supp 954 (S.D.W.Va. 1996), 960 F Supp 1036 (1996), 39 Wilson v Stocker, 819 F.2d 943, (10th Cir. 1999), [Wooley v Maynard, 430 U.S. 705 (1977)], 40 Yes to Life PAC v. Webster, http://www.med.uscourts.gov/opinions/Hornby/2000/DBH_02072000_2-99cv318_YES_PAC_V_WEBSTER.pdf , 41 Peter Zenger’s case, http://www.law.umkc.edu/faculty/projects/Ftrials/zenger/zenger.html 42 Zwickler v. Koota, 290 F. Supp. 244 (E. D. N. Y. 1968), vacated on mootness grounds sub nom. Golden v. Zwickler, 394 U.S. 103 (1969), Oregon Attorney General Opinion 8266. Citizens for Responsible Gov't State PAC v. Davidson, 236 F.3d 1174, (10th Cir. 2000) So this includes at least the 9th Circuit, 10th, and the states of WA, OR, LA, MA, ME, DE, CO, CA, NY, IL, ID, ND, TX. So there is a significant split, that this court should attempt to resolve. 43. In re Ind. Newspapers, Inc., No. 49A02-1103-PL-23, ___ N.E.2d ___ (Ind. Ct. App., Feb. 21, 2012).(Indiana constitution and First Amendment.) 44. Dendrite 45. Doe v Cahill (Del.) 46. Digital Music News LLC v. Superior Court (Cal. Ct. App. May 14, 2014) (California constitutional right to privacy). 47. It is well-settled 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.” In re Anonymous Online Speakers, 661 F.3d 1168, 1173 (9th Cir. 2011) 48. Hartman v O'Connor 1:20cv163 (S.D. Ohio Sep. 29, 2021)(judicial speech withstood strict scrutiny) 49. Minn. Citizens Concerned for Life, Inc. v. Kelley, 291 F.Supp.2d 1052, 1069 (D.Minn. 2003), aff'd in part, rev'd in part, 427 F.3d 1106 (8th Cir. 2005). 50. Riley v. Jankowski, 713 N.W.2d 379 (Minn. Ct. App. 2006)