clarksburg free speech case blog

2009-09-16T08:55:00.000-07:00

Charges have been dropped against Shaffer, not yet against his sister and the other guy. Martin is planning to sue.
Charges dropped against city councilman
by Matt Harvey, Assistant Managing Editor
Wednesday, September 16, 2009 6:32 AM CDT

CLARKSBURG — Two misdemeanor charges lodged against Clarksburg City Councilman Martin Shaffer the night before the city’s June election have been dismissed.

Shaffer had been charged June 1 with circulation of anonymous written matter and conspiracy for his role in the production of an anonymous document that criticized members of city council.

On Monday morning, Harrison Magistrate Keith Marple granted the motion to dismiss that had been filed by Special Prosecutor Eric Wildman, an assistant prosecutor for Marion County Prosecutor Pat Wilson.

Wildman’s motion said the state “no longer wishes to pursue prosecution at this time,” and asked the court “to dismiss without prejudice.”

Wildman faxed the motion to Marple prior to a scheduled pretrial conference.

Reached afterward, the Marion County assistant prosecutor said he had made the motion based on his “interpretation of the statutory language, the fact no expressed advocacy was contained in the language (of the newsletter) itself. And, I think we were going to have a difficult time with the prosecution of the case.”

Wildman said he asked for the dismissal without prejudice, which means the charge could be brought again, in case any new evidence would surface that would “change my mind.”

Shaffer showed up for Monday’s hearing, and met briefly with Kelly Kimble, of the law firm Reed Kimble PLLC that represents him.

“I’m glad that this phase of this is over so we can get on with city business,” he told The Exponent Telegram following the dismissal. “I’m disappointed that it happened, but you know ...”

Shaffer also said he believes that “sometimes it’s wise to let the prosecuting attorney people look into the facts before arresting someone the night before the election.”

Kimble referred comment to Traci Cook, the lawyer who handled most of the case for Reed Kimble.

Cook praised Wilson’s office for the way the case was handled.

And, she said she thinks the law should be reviewed.

“I think first, it can be applied incorrectly,” she said. Also, “it has a cooling effect on the First Amendment, the freedom of speech.”

As previously reported, the state law that authorities cited in Shaffer’s arrest has been under a federal injunction since 1996. The injunction permanently bans enforcement of the law.

The law states that “no person may publish, issue or circulate” anonymous material that either supports or aids the defeat of a candidate for public office. The law may be enforced only if the material includes “express advocacy.” Examples of express advocacy include phrases like “vote for” and “support.”

Although the so-called newsletter criticized councilmen Sam “Zeke” Lopez and Jim Hunt, it made no official endorsements.

Clarksburg Police Lt. Robert Matheny previously said the decision to move forward with the arrest was reached the afternoon of June 1 among himself, Secretary of State Chief Investigator Amber Kroening and the Secretary of State’s general counsel.

However, Secretary of State Natalie Tennant said Monday her agency does not make recommendations to any law enforcement agency.

Tennant acknowledged Matheny and Kroening probably had a discussion, “but did she recommend he take any action?”

And then, questioned further, the secretary of state said Kroenig “did not make any recommendation to the city police.”

Matheny agreed that Kroenig offered no recommendation.

“The general counsel for the Secretary of State’s office, that’s who we took direction from,” he said. It was not a recommendation, Matheny indicated.

He added that police only asked for involvement from the Secretary of State’s office because Councilman Shaffer is related to Harrison Prosecutor Joe Shaffer.

“Normally in (such) a case we would confer with the prosecutor,” Matheny said.

Clarksburg City Manager Martin Howe, in a written communication, said he was “very disappointed with the decision by the Special Prosecuting Attorney appointed from Marion County, Pat Wilson’s decision to dismiss the charges ...”

“If the State of WV doesn’t want to enforce these election laws, nor do they want our local Chief Election Official to enforce the laws, then the appropriate actions ... need to be taken by our Secretary of State’s Office and the state (legislators) to redact these state laws,” Howe wrote.

Howe also said Clarksburg’s city clerk is preparing a letter to the Secretary of State’s office “to clarify the election laws” involved in the case.

“If this is case law, we are asking for clarification on how the laws should be enforced going forward for future elections,” Howe wrote.
====

2009-07-07T16:22:00.000-07:00

http://lawprofessors.typepad.com/media_law_prof_blog/2009/06/anonymous-speech-online.html
student article, includes several cases i'd missed,
Virginia v Janes (spammer case), Doe v Cahill (Smyrna case re discovery subpoenas)
ACLU vb Johnson (indecent re minors on internet).
Miguel E. Larios, The John Marshall Law School, has published "E-Publius Unum: Anonymous Speech Rights Online. 5lariosm at stu.jmls.edu

2009-07-03T14:02:00.000-07:00

I have written a (draft of a)n amicus brief in the State v Shaffer case.
The text is here: http://shaffercase.blogspot.com/2008/07/3rd-draft-of-amicus-brief.html
If you prefer an .rtf version, email me gtbear at gmail dot com.

2009-06-29T19:27:00.000-07:00

Doing a bit of online research, I've run into that unpublished case which tells the backstory of Margaret McIntyre. Read the whole thing, as they say.
McIntyre, 115 S. Ct. at 1514. The April 27th meeting marked the beginning of a long
and unpleasant battle over the tax levy in Westerville. See Hansen v. Westerville City
Sch. Dist., Nos. 93-3231, 93-3303, 1994 WL 622153 (6th Cir. Nov. 7, 1994), cert. denied
115 S. Ct. 2611 (1995). http://bulk.resource.org/courts.gov/c/F3/43/43.F3d.1472.93-3303.93-3231.html, unpublished opinion tells the story of mcintyre.
McIntyre is often discussed as if she was a "lone pampleteer", and some of the statutes have been revised to provide lone pampleteer exceptions. But she was part of a larger gang, some of whom sued after being attacked by cops at a public hearing on the tax increase.

2009-06-29T08:50:00.001-07:00

Special prosecutor appointed in Shaffer case
by Billy Wolfe STAFF WRITER
Friday, June 26, 2009 6:32 AM CDT
CLARKSBURG — Harrison Chief Circuit Judge Thomas A. Bedell appointed a special prosecutor Wednesday to handle the criminal case against City Councilman Martin Shaffer.
Shaffer was arrested June 1 for his role in the production of an anonymous document that criticized members of city council.
Bedell said Wednesday that Marion County Prosecutor Pat Wilson, or one of Wilson’s designees, will handle the case.
Wilson was out of town Wednesday and could not be reached for comment.
Harrison County Prosecutor Joe Shaffer has stepped down from the case because Martin Shaffer is his uncle.
Clarksburg Police arrested Councilman Shaffer the day before the recent municipal election and charged him with two misdemeanors for violating state election laws.
Two other arrest warrants have been issued in connection with the case. Both suspects are in Arizona and have not yet been served with the warrants, according to Clarksburg Police Lt. Robert Matheny.
As previously reported, the state law that authorities cited in Shaffer’s arrest has been under a federal injunction since 1996. The injunction permanently bans enforcement of the law.
The law states that “no person may publish, issue or circulate” anonymous material that either supports or aids the defeat of a candidate for public office. The law may be enforced only if the material includes “express advocacy.” Examples of express advocacy include phrases like “vote for” and “support.”
Although the so-called newsletter criticized councilmen Sam “Zeke” Lopez and Jim Hunt, it made no official endorsements.
At least two national nonprofit law firms have come out strongly against the arrest, saying that police violated Councilman Shaffer’s right to freedom of speech.
Shaffer said he has been in contact with both the Institute for Justice and the Center for Competitive Politics. The agencies have been advising Shaffer on his legal rights, he said.
The story also has been reported on by national political blogs like the Daily Kos.
The West Virginia Secretary of State’s office, which advised police on the legality of the arrest, has refused to comment on the ongoing investigation.
City Manager Martin Howe, who publicly announced the city was launching an investigation into the newsletter’s origins during an April 26 press conference, deferred all questions to the police department. Howe has called the document “slanderous,” and “illegal.”
Shaffer has also chosen a lawyer for his defense.
Morgantown attorney Traci Cook, who is Harrison County’s former chief assistant prosecutor, confirmed Wednesday she will represent the councilman in court.
Cook did not wish to comment on the case just yet.
“We are still in the early stages,” she said.

In another turn of events, City Attorney Greg Morgan said a citizen has issued to him a notice to “cease and desist” with Councilman Shaffer’s prosecution.
According to the notice, “Shaffer’s conduct, and that of the others, was legal, and he was subjected to a false arrest.”
Morgan said the individual is “entitled to have their opinion and to have it heard” but that he is not the appropriate person to receive the notice. He said the notice should have instead been issued to the prosecutor handling the case.
Morgan said Wednesday he will forward the cease and desist notice to Wilson’s office.

Staff writer Billy Wolfe can be reached at (304) 626-1404 or by e-mail at bwolfe@exponent-telegram.com

2009-06-26T21:49:00.000-07:00

wv CONSTITUTION NOTES
3-3. Rights reserved to people.

Government is instituted for the common benefit, protection and security of the people, nation or community. Of all its various forms that is the best, which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of maladministration; and when any government shall be found inadequate or contrary to these purposes, a majority of the community has an indubitable, inalienable, and indefeasible right to reform, alter or abolish it in such manner as shall be judged most conducive to the public weal.
All men are, by nature, equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity, namely: The enjoyment of life and liberty, with the means of acquiring and possessing property, and of pursuing and obtaining happiness and safety.
3-7. Freedom of speech and press guaranteed.

No law abridging the freedom of speech, or of the press, shall be passed; but the Legislature may, by suitable penalties, restrain the publication or sale of obscene books, papers, or pictures, and provide for the punishment of libel, and defamation of character, and for the recovery, in civil actions, by the aggrieved party, of suitable damages for such libel, or defamation.

3-16. Right of public assembly held inviolate.

The right of the people to assemble in a peaceable manner, to consult for the common good, to instruct their representatives, or to apply for redress of grievances, shall be held inviolate.

2009-06-26T15:38:00.000-07:00

Found a myspace page dedicated to Manual Talley www.myspace.com/manueltalley

1918-- Born in Denver, Colorado;....1922-brother Munroe dies of diphtheria;.... 1944 or 1945-- Jailed for refusal to register for draft. Went on a highly publicized hunger strike to protest segregation in the prison dining hall. Within several months the dining hall was integrated. .......... 1947-- With F.O.R. and Julius [or Cornelius] Steelink, Talley organized the first National Draft Card burning. .......... 1948-- Talley is appointed the first Field Representative for the Los Angeles Chapter of the Congress on Racial Equality (C.O.R.E), leading sit ins, demonstrations and boycotts against businesses who refuse to serve or employ African-Americans. 1949-- Oklahoma Librarian Ruth Brown, which became a widely publicized case of civil rights, reports to Houser that " a visit by CORE Field Worker Manuel Talley gave the group a much needed boost........... 1950-- Talley leaves CORE.....Eventuall he organnizes National Consumers Mobilization for Fair Employment ..........1956-- Talley receives a letter from Martin Luther King, Jr., agreeing with Talley that a boycott of the Los Angeles Transit System would not be advisable, but thanking him for his support. [This letter is published in "The Papers of Martin Luther King, Volume 3, 1997]. .......... 1960-- Talley goes to the United States Supreme Court. The case is called "Talley v. California, 362 US 60." Manuel Talley was distributing leaflets in front of a store urging consumers to boycott of products produced by companies that did not have fair employment practices, that is did not employ African Americans. The police were called and informed him that there was a law that the name and address of the producer of such handbills must be printed on them. Talley took the case to court, stating that this law was in violation of the first Amendment of the United States Constitution, Freedom of Speech. In March of 1960, the Supreme Court upheld Talley's argument. This case is highly important and often referred to in questions of freedom of speech, including freedom of speech on the internet.... 1963 May 8, Talley begins a fast to gain 100,000 signatures on a petition demanding voting rights to blacks in the south. Ends the fast on July 2nd, when goal of 100,000 signatures has been achieved. Later that same year, the US Commission on Civil Rights puts out it's 1963 report calling for protection of southern black voters, which leads to the 1965 Voting Rights Act......... 1986--Died, Los Angeles.

http://my.barackobama.com/page/community/post/ajtalley/gGB4F2/commentary

I am a civil rights baby, in the truest sense of the term.
My African American father, Manuel D. Talley, committed his life to the struggle. In his 20's, he refused to be inducted into a segregated armed forces. As a result, he was incarcerated in a segregated prison. He then embarked on a highly publicized hunger strike until the warden agreed to desegregate the dining hall.

In 1948, he met my mother, a petite blonde co-ed at UC Berkely. The laws against intermarriage were still in place in California. They were repealed in 1949, and my parents wed in 1950. Soon they had three children, and Dad was still on the forefront of the battle.

Dad led many civil rights activities in the 1950's and '60's. From sit-ins to boycotts to "testing" landlords and employers, to leafletting, Dad continued his dedication to the cause. He took cases to court, and always won. He even took a free speech case to the US Supreme Court (Talley v. California) which is still being used as precedent in current cases.

American Civil Liberties Union of Southern California Records
Processed by Manuscripts Division staff; machine-readable finding aid created by Caroline Cubé

UCLA Library, Department of Special Collections

Manuscripts Division
Room A1713, Charles E. Young Research Library
Box 951575
Los Angeles, CA 90095-1575
Email: spec-coll@library.ucla.edu
URL: http://www.library.ucla.edu/libraries/special/scweb/
© 2003

Finding Aid for the American Civil Liberties Union of Southern California Records, ca. 1935-
[ Box 97 ]
[ Folder 18 ]
Handbill Case - Manuel D. Talley

2009-06-26T12:11:00.001-07:00

Here's a list of cases about anonymous political speech.
The next step will be to go through these cases and find some good quotes to put into a brief in support of Shaffer.

Doe v.2theMart,140 F.Supp.2d 1088, http://cyber.law.harvard.edu/stjohns/2themart.html
ACLU v. Ashcroft, _ U.S. _ (2004), http://en.wikipedia.org/wiki/ACLU_v._Ashcroft_(2004) see Doe v Gonzales, 546 U.S. 1301 (2005),
ACLU of Georgia v. Miller, (977 F.Supp. 1228 (N.D.Ga 1997), http://www2.bc.edu/~herbeck/cyberlaw.acluvmiller.html
ACLU v. Reno, 117 S.Ct. 2329 (1997) http://en.wikipedia.org/wiki/Reno_v._American_Civil_Liberties_Union
ALA v. Pataki, 969 F.Supp 160 (1997) http://www.loundy.com/CASES/ALA_v_Pataki.html
American Constitutional Law Foundation [ACLF], Buckley v., 525 U.S.182
(1999), http://www.law.cornell.edu/supct/html/97-930.ZO.html
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),
THE BROWARD COALITION v BROWNING(ND Fla. 2008)
http://weblogs.sun-sentinel.com/news/politics/broward/blog/ECO.order.pdf
Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999) see aclf.
Center for Individual Liberty v Ireland 1:08-cv-00190 (W.D.WV 2009)
Cyberspace v. Engler, 55 F.Supp.2d 737 (E.D. Mich 1999)http://www.cyberspace.org/cyberspace/lawsuit/
http://www.mediacoalition.org/mediaimages/june1decisioncyber.pdf
Dennis v. Massachusetts, 329 N.E.2d 706 (Mass. 1975), http://masscases.com/cases/sjc/368/368mass92.html
Doe v. Mortham, 708 So.2d 929 (Fla.1998).
Ex Parte Harrison, 110 S.W. 709 (Mo 1908)
Free Speech Coalition, Ashcroft v., 535 U.S. 234 (2002)http://www.law.cornell.edu/supct/html/00-795.ZS.html
Griset v. Fair Political Practices Commission, 69 Cal. App. 4th 818, 82 Cal. Rptr.2d 25(1999), reversed on other grounds,
Printing Industries of the Gulf Coast v. Hill, 382 F.Supp. 8011 (S.D.Tx 1974),42 L.Ed.26 33 dismissed as moot. http://openjurist.org/422/us/937/hill-v-printing-industries-of-gulf-coast
Idaho v. Barney, 448 P.2d 195 (1968),
Illinois v. White, 506 NE2d 1284 (Ill. 1987)http://il.findacase.com/research/wfrmDocViewer.aspx/xq/fac.%5CIL%5CIL2%5Carchp%5C1987%5C19870220_0000193.IL.htm/qx
Louisiana. v. Moses, 655 So. 2d 779 (La. Ct. App. 1995),
State of Lousiana v. Fulton, 3.37 So.2d 866 (La. 1976)
Michael James Berger, aka Magic Mike v. City of Seattle (9th Cir. 2009)
http://www.morelaw.com/verdicts/case.asp?n=05-35752&s=WA&d=40488
Majors v. Abell, 317 F.3d 719 (7th Cir. 2003), 792 NE2d 18 (Ind.
2003), 361 F.2d 349 (2004), http://www.liebertonline.com/doi/abs/10.1089/153312903321578269?cookieSet=1&journalCode=elj http://www.ca7.uscourts.gov/fdocs/docs.fwx?caseno=02-2204&submit=showdkt&yr=02&num=2204A.P
McIntyre v. Ohio, 514 U.S. 334 (1995)http://www.law.cornell.edu/supct/html/93-986.ZO.html
overruled 67 Ohio St. 3d 391; 618 N. E. 2d 152
Melvin v Doe, 2001 Pa. Super. 330
N.Dakota v. N.D. Ed. Assoc., 262 N.W.2d 731 http://www.ndcourts.com/court/opinions/612.htm
New York v. Duryea, 351 NYS2d 978 (1974)
In re Opinion of the Justices, 324 A.2d 211 (Del. 1974)
http://de.findacase.com/research/wfrmDocViewer.aspx/xq/fac.%5CDE%5CDE2%5C1974%5C19740731_0002.DE.htm/qx
Opinion of the Justices, 306 A.2d 18 (Maine 1973)
Washington ex rel Public Disclosure v. 119 Vote No!, 957 P.2d 691 (1998)
http://lw.bna.com/lw/19980630/64332.htm
Ogden v. Marendt, (S.D. Ind 2004),
Peterslie v. N.Carolina, (N.Car. 1993)http://www.ibiblio.org/pub/docs/nc-supreme-court/jul3093/persilie
Griset v. Cal. Fair Practices, 884 P.2d 116 (1994),(1999),(2001)
Riley v. Federation of the Blind, 487 U.S. 781 (1998)http://laws.findlaw.com/us/487/781.html
ShrinkMo v. Maupin, 892 F. Supp. 1246 (E.D. Mo. 1995), aff'd, 71 F.3d
1422 (8th Cir. 1995),http://www.ca8.uscourts.gov/opndir/95/12/952857P.pdf
Schuster v. Imperial County Mun. Ct., 167 Cal. Rptr. 447 (Cal. Ct. App.
1980), cert. denied, 450 U.S. 1042 45.
Schuster v. Imperial County (1980)http://ca.findacase.com/research/wfrmDocViewer.aspx/xq/fac.%5CCA%5CCA2%5C1980%5C19800828_0040409.CA.htm/qx
Smith v California, 361 U.S. 147 (1959),http://supreme.justia.com/us/361/147/
Stewart v. Taylor, 953 F.Supp.1047 (S.D.Ind.1997),
Talley v. California, 362 U.S. 60 (1960),http://epic.org/free_speech/talley_v_california.html
Texas v. Doe, (Tx. Cr.App. 5/14/2003)
Vermont Right to Life v. Sorrell, 221 F.3d 376, 392 (2d Cir. 2000), http://cases.justia.com/us-court-of-appeals/F3/221/376/526348/
Watchtower v. Village of Stratton, 536 U.S. 150 (2002)http://www.law.cornell.edu/supct/html/00-1737.ZS.html
West Virginians for Life v Ireland (W.D.WV 2009)
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), http://bulk.resource.org/courts.gov/c/F2/819/819.F2d.943.85-2736.85-2641.85-2323.html
Wooley v Maynard, 430 U.S. 705 (1977) http://supreme.justia.com/us/430/705/case.html
FEC v. Wisconsin Right to Life http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=06-969#FNopinion1.7
Yes to Life PAC v. Webster, http://www.med.uscourts.gov/opinions/Hornby/2000/DBH_02072000_2-99cv318_YES_PAC_V_WEBSTER.pdf

Zwickler v. Koota, 290 F. Supp. 244 (E. D. N. Y. 1968), vacated on other grounds (mootness)sub nom. Golden v. Zwickler, 394 U.S. 103 (1969)http://law.jrank.org/pages/12637/Zwickler-v-Koota.html http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?friend=ny&navby=case&court=us&vol=389&invol=241
People v. Bongiorni, 205 Cal. App. 2d Supp. 856 (Sup. Ct. 1962)
People v Drake
ACLU v Heller 378 F3d 979 (2004)http://openjurist.org/378/f3d/979/american-civil-liberties-union-of-nevada-v-heller
Tornillo v Miami Herald http://en.wikipedia.org/wiki/Miami_Herald_Publishing_Co._v._Tornillo

"Where at all possible, government must curtail speech only to the degree necessary to meet the particular problem at hand, and must avoid infringing on speech that does not pose the danger that has prompted regulation." Federal Election Commission v. Massachusetts Citizens for Life, 479 U.S. 238, 265, 107 S.Ct. 616, 93 L.Ed.2d 539 (1986)

fr10] At least ten state and lower federal courts have applied exacting scrutiny to protect various forms of anonymous political speech. See, e. g., State v. Doe, 61 S. W. 3d 99 (Tex. Ct. App. 2001); Washington Initiatives Now v. Ripple, 213 F. 3d 1132 (9th Cir. 2000); Church of the American Knights of the Ku Klux Klan v. City of Erie, 99 F. Supp. 2d 583 (W. D. Pa. 2000); State v. Alaska Civil Liberties Union, 978 P. 2d 597 (Alaska 1999); Yes for Life PAC v. Webster, 74 F. Supp. 2d 37 (D. Me. 1999) and Volle v. Webster, 69 F. Supp. 2d 171 (D. Me. 1999); American KKK v. City of Goshen, 50 F. Supp. 2d 835 (N. D. Ind. 1999); Arkansas Right to Life State PAC v. Butler, 29 F. Supp. 2d 540 (W. D. Ark. 1998); Stewart v. Taylor, 953 F. Supp. 1047 (S. D. Ind. 1997); West Virginians for Life v. Smith, 960 F. Supp. 1036 (S. D. W. Va. 1996); and Virginia Society for Human Life v. Caldwell, 906 F. Supp. 1071 (W. D. Va. 1995).

State of North Dakota v Reisler http://www.ndcourts.com/court/opinions/412.htm (Offtopic)

mic ag op 1996 http://www.ag.state.mi.us/opinion/datafiles/1990s/op06895.htm

Page 1 http://www.doj.state.or.us/agoffice/agopinions/op8266.pdf
March 10, 1999
No. 8266
This opinion is issued in response to questions presented by Colleen Sealock, Director of the Elections Division in the
Office of Secretary of State Phil Keisling.
FIRST QUESTION PRESENTED
Does ORS 260.522,
(1)
which prohibits most anonymous signs, publications and broadcasts used in political campaigns,
violate the free speech provisions of the Oregon Constitution or the United States Constitution?
ANSWER GIVEN
The statute as currently written is unconstitutional. The liberty to produce and distribute anonymous campaign material is
protected by free speech guarantees. Under Article I, section 8, of the Oregon Constitution,
(2)
the Legislative Assembly
may not restrain "the free expression of opinion" or restrict a person's right to "speak, write, or print freely on any subject"
unless the limitation was well-established at the time that free speech guarantees entered the federal or state constitutions
and was not a limitation that those guarantees were designed to eliminate, or unless the limitation is directed not at speech
per se but at the effects of the speech. No historical exception covering anonymous political speech exists, nor does ORS
260.522 focus on effects as opposed to speech per se. Therefore, the statute violates Article I, section 8

N Dakota AGO http://74.125.47.132/search?q=cache:JlazyuKJnXkJ:www.ag.nd.gov/Opinions/2001/Advice/022601-Boucher.pdf+N.Dakota+v.+N.D.+Ed.+Assoc+%22%27262+N.W.2d+731%22&cd=4&hl=en&ct=clnk&gl=us&client=firefox-a

496 F2d 204 United States v. P Insco (5th Cir 1974) http://openjurist.org/496/f2d/204

http://www.vjolt.net/vol3/issue/vol3_art1.html Anonymous Internet Communication and the First Amendment: A Crack in the Dam of National Sovereignty by Michael H. Spencer
1918-- Born in Denver, Colorado;....1922-brother Munroe dies of diphtheria;.... 1944 or 1945-- Jailed for refusal to register for draft. Went on a highly publicized hun
Manuel D. Talley Memorial Page's Friend Space (Top 6)http://www.myspace.com/manueltalley

United States v. Donald H. Segretti, infra, without opinion
Canon v. Justice Court for the Lake Valley Judicial District of El Dorado County, 39 Cal.Rptr. 228, 231;

Insco:
Where freedom is at stake, ambiguities and doubts as to statutory application, manifestly existing here, must be resolved in favor of the accused. See, e.g., United States v. Enmons, 1973, 410 U.S. 396, 411, 93 S.Ct. 1007, 35 L.Ed.2d 379; Rewis v. United States, 1971, 401 U.S. 808, 812, 91 S.Ct. 1056, 28 L.Ed.2d 493; United States v. Etheridge, 6 Cir. 1970, 424 F.2d 951, cert. denied sub nom., Cole v. United States, 1971, 400 U.S. 993, 91 S.Ct. 463, 27 L.Ed.2d 442; United States v. Illinois Central Ry., W.D.Tenn. 1967, 269 F.Supp. 236, 240.
Reversed.
[cite wisc rtl v fec] tie goes to speaker

Huntley v. Public Util. Commn. of Cal. 69 Cal. 2d 67 (1968) (recorded telephone messages); Bogalusa v. May, 252 La. 629 (1968) (circulars and pamphlets); Opinion of the Justice, 306 Atl. 2d 18 (Maine, 1973) (authors of newspaper editorials); Opinion of the Justices, 324 Atl. 2d 211 (Del. 1974) (same); People v. Mishkin, 17 App. Div. 2d (N. Y.) 243 (1962) affd. 15 N. Y. 2d 671 (1964), affd. on other grounds sub nom. Mishkin v. New York, 383 U.S. 502 (1966) (disclosure of publisher or printer); Matter of Figari v. New York Tel. Co. 32 App. Div. 2d (N. Y.) 434 (1969) (recorded telephone messages). Cf. Lantana v. Pelczynski, 290 So. 2d 566 (Fla. App. 1974)
http://fl.findacase.com/research/wfrmDocViewer.aspx/xq/fac.%5CFL%5CFL2%5C1974%5C19740228_0040593.FL.htm/qx
See City of Bogalusa v. May, 212 So.2d 408 (1968) (Louisiana Supreme Court struck down a municipal ordinance prohibiting the distribution of circulars and pamphlets which did not identify the distributor); State v. Fulton, 337 So.2d 866 (1976) (Louisiana Supreme Court struck down state statute prohibiting the publication and distribution of any material concerning a candidate, where the material did not identify the person responsible for its publication); State v. Burgess, 543 So.2d 1332 (1989) (Louisiana Supreme Court struck down state statute which prohibited the publication, distribution, or transmission of ''any oral, visual, or written material containing any statement which makes scurrilous, false, or irresponsible adverse comment about a candidate . . . or about a proposition to be submitted to the voters, unless the publication contains the name(s) of the person(s) responsible for its publication.'')

Morefield v. Moore (Ky. 1976), 540 S.W.2d 873; State v. Acey (Tenn. 1982), 633 S.W.2d 306.
The abolition of anonymity, 40 Tenn.L.Rev. 301. http://www.hwylaw.com/CM/Articles/DLR.AbolitionTLR.pdf

2009-06-25T16:26:00.000-07:00

The 9th circuit en banc handed down a decision in Magic Mike v Seattle that hold that street performerss can't be required to buy permits and wear identification badges, citing the right to anonymous speech found in McIntyre and Watchtower v Stratton.

And in Tennessee, here's a link about the Battle of Athens, when WWII-era GI's fought crooked local politicians over voter fraud.

I haven't seen any new news about the Clarksville situation. It now looks like the Citizens United case will come out Monday, the last case of the term. It might or might not say useful things abou election speech rights.

hey blogger this is not a spam blog

2009-06-19T10:10:00.000-07:00

[update, problem fixed, blog is working again]
I was interviewed by Billy Wolf of the clarskburg exponent-telegram, so maybe i'll be in the news tomorrow. I'm waiting to hear from slashdot or volokh about more coverage.

the cease and desist notice and the amicus letter

2009-06-19T10:05:00.000-07:00

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

Long: the original post

2009-06-19T10:04:00.000-07:00

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

Hello World

2009-06-19T09:53:00.000-07:00

Hello World.
This blog is a spinoff from my election law blog at http://ballots.blogspot.com and this post.
It concerns the case of State of West Virgina versus Martin Shaffer.
More to come soon.

3rd draft of amicus brief

2008-07-03T13:41:00.000-07:00

IN THE MAGISTRATE COURT OF HARRISON COUNTY WEST VIRGINIA

STATE OF WEST VIRGINIA
v. Case # 09M-1334, # 09M-1335
Magistrate Keith Marple
MARTIN L. SHAFFER

AMICUS BRIEF OF ROBBIN STEWART
Contents
Table of cases
Interest of amicus
Facts
Summary of argument
Argument
A. 1. Controlling Supreme Court cases find such statutes unconstitutional.
2 Strict scrutiny applies.
3 Persuasive authorities have struck down statutes on similar facts.
4 Criminal statutes get heightened scrutiny and are to be construed narrowly.
5 The statute is void because it lacks a scienter element.
6 A prior case on WV 3-8-12(a) is persuasive that the statute is unconstitutional here.
7 Even if the statute were constitutional, Shaffer hasn’t violated it.
B 1 The statute violates the West Virginia constitution. The text, history, case law, and case law of other states, support a finding of unconstitutionality.
Conclusion

Table of Authorities

ACLU v Heller, 378 F3d 979 (2004)
ACLU v Reno, 117 S.Ct. 2329 (1997)
ACORN v. Municipality of Golden, 744 F.2d 739, 746 (10th Cir.1984)
American Civil Liberties Union of Georgia v. Miller, 977 F.Supp. 1228 (N.D.Ga 1997)
Anonymous v. Delaware, 2000 Del. Ch. Lexis 84 (2000)
Arkansas Right to Life v. Butler, 29 F.Supp.2d 540, sustained on other grounds 146 F.3d 558 (8th Cir 1998)
Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).
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)
Buckley v. Valeo, 424 U.S. 1, 64 (1976) (per curiam)
Citizen Awareness v. Calhoun, 406 S.E.2d 65, 68 (W.Va. 1991)
Citizens Action v Daley, 324 S.E.2d 713, 726 (W.Va 1984)
City of Bogalusa v. May, 212 So.2d 408 (La. 1968)
City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 51-52 (1986)

Commonwealth v Dennis, 368 Mass. 92, 329 NE2d 706 (1974)
Ctr. for Individual Freedom, Inc. v. Ireland, Nos. 1:08-cv-00190 & 1:08-cv-01133, 2008 WL 4642268 (S.D. W.Va. Oct. 17, 2008) (consolidated w/ WVL v. Ireland)

Cyberspace v Engler, (E.D.MI 2001)

Dennis v. Massachusetts, 329 N.E.2d 706 (Mass. 1975)
Doe v 2theMart, 140 F.Supp.2d 1088, 29 Media L. Rep. 1970 (2001)
Doe v. Mortham, 708 So.2d 929 (Fla.1998)
Dombrowski v. Pfister, 380 U.S. 479, 494 (1965)
Ex Parte Harrison, 110 S.W. 709 (Mo 1908)
FEC v Wisconsin Right to Life, 551 U.S. 449 (2007)
Griset v. Fair Political Practices Commission, 69 Cal. App. 4th 818, 82 Cal. Rptr.2d 25 (1999), reversed on other grounds,
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,

Idaho v. Barney, 448 P.2d 195 (1968),
Illinois v White, 506 NE2d 1284 (Ill. 1987).
In re Opinion of the Justices, 324 A.2d 211 (Del. 1974),

Insco, U.S v., 496 F2d 204 (5th Cir. 1974)
Keller v. State Bar of Cal., 496 U.S. 1 (1990),
Louisiana. v. Moses, 655 So. 2d 779 (La. Ct. App. 1995),
Louisiana v. Fulton, 337 So.2d 866 (La. 1976),
Majors v Abell, 317 F.3d 719 (7th Cir. 2003).
McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 357, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995)
Miami Herald v Tornillo, 418 U.S. 241 (1974).
Michael James Berger, aka Magic Mike v. City of Seattle, (9th Cir. 6/24/2009)

NAACP v. Alabama, 357 U.S. 449, 463, 78 S.Ct. 1163, 1172, 2 L.Ed.2d 1488 (1958);
New York v. Duryea, 351 NYS2d 978 (1974),
Nixon v. Shrink Missouri PAC, 528 U.S. 377, 392 (2000)

Ogden v. Marendt, 264 F.Supp. 2d 785 (S.D. Ind. 2003) (S.D. Ind 2004),
Opinion of the Justices, 306 A.2d 18 (Maine 1973)
Patterson v. Colorado, 205 U.S. 454, 462, 27 S. Ct. 556, 51 L. Ed. 879 (1907).
People v Drake, (Cal.),
People v. Bongiorni, 205 Cal. App. 2d Supp. 856 (Sup. Ct. 1962),
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)
Rosen v. Port of Portland, 641 F.2d 1243, 1246 (9th Cir.1981)
Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995);
Schuster v. Imperial County Mun. Ct., 167 Cal. Rptr. 447 (Cal. Ct. App.

ShrinkMissouri v. Maupin, 892 F. Supp. 1246 (E.D. Mo. 1995), aff'd, 71 F.3d
Smith v California, 361 U.S. 147 (1959).

Smithers v Fla. Elections Comm’n, http://www.fec.state.fl.us/decisions/Smithers96-85.PDF
State of Louisiana v. Fulton, 3.37 So.2d 866 (La. 1976),
State of Louisiana v. Burgess, 543 So.2d 1332 (1989),
State v. N. Dakota Ed. Assoc., 262 N.W.2d 731 (N.D. 1978),
Stewart v Taylor, 953 F.Supp.1047 (S.D.Ind.1997)
Talley v. California, 362 U.S. 60, 65, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960)
Texas v. John Doe, 61 S. W. 3d 99, (Tx. Cr.App. 5/14/2003) http://www.cca.courts.state.tx.us/opinions/025402a.htm
Town of Lantana v Pelczynski, 290 So. 2d 566 (Fla. App. 1974).
Vermont Right to Life v. Sorrell, 221 F.3d 376, 392 (2d Cir. 2000),
Virginia Society for Human Life Incorporated v. Caldwell, 152 F3d 268 (4th Cir. 1998).

Washington ex rel. Public Disclosure v. 119 Vote No!, 957 P.2d 691

Watchtower v Stratton, 536 U.S. 150 (2002)
Web v Fury, 282 SE2d 28, 43, (W.Va. 1981)
West Virginians for Life v Ireland (S.D.WV 2009)

West Virginians for Life v Smith, 919 F. Supp 954 (S.D.W.Va. 1996), 960 F Supp 1036 (1996).

Wilson v Stocker, 819 F.2d 943, 950 (1999).
Wheeling Park Com’n. v. Hotel Union, 479 SE2d 876, 882 note 6 (W.Va 1996)
Woodruff v Board, 319 SE2nd 372, 379 (W.Va 1984)
Wooley v Maynard, 430 U.S. 705 (1977)
Yes to Life PAC v. Webster, http://www.med.uscourts.gov/opinions/Hornby/2000/DBH_02072000_2-99cv318_YES_PAC_V_WEBSTER.pdf
Peter Zenger’s case, http://www.law.umkc.edu/faculty/projects/Ftrials/zenger/zenger.html
Zwickler v. Koota, 290 F. Supp. 244 (E. D. N. Y. 1968), vacated on other grounds (mootness) sub nom. Golden v. Zwickler, 394 U.S. 103 (1969)
First Amendment.
WV 3-8-12(a)
WV Constitution 3-7, 3-16, 3-3.
Oregon Attorney General Opinion 8266 (1999) at http://www.doj.state.or.us/agoffice/agopinions/op8266.pdf .
http://www.jamesmadisoncenter.org/Documents/Boppresume0208.pdf, pp 20-25.

Bastress, the West Virginia State Constitution,
“An Englishman”, Common Sense,
“Publius”, Federalist Papers.
Interest of amicus.
I am Robbin Stewart, of Stewart and Associates, formerly Tavel and Stewart Public Interest Law Firm, Indianapolis IN. I am a former candidate. I was the plaintiff in Stewart v Taylor, F.Supp.1047 (S.D.Ind.1997), which found Indiana’s disclaimer statute unconstitutional, and have been counsel in cases such as Majors v Abell and Anonymous v Delaware, and am an amicus in Center for Individual Freedom v Ireland. I monitor state and federal compliance with Talley v California and McIntyre v Ohio, and cover election law issues at ballots.blogspot.com.
Facts
Prior to the June Clarksburg city council election, a newsletter was mailed to likely voters, containing information about city issues, questioning budgetary and management decisions. Some of the contents appear to be based on public records of complaints filed by Shaffer with a state ethics board. Shaffer has admitted involvement with the newsletter. The newsletter was accurately labeled as the “Clarksburg City Council News” and accurately listed its post office box address, but did not list the names of an editor or publisher. Shaffer is not the editor or publisher. The newsletter did not contain express advocacy. It did mention some candidate(s) by name in the context of discussing budgetary issues.
The city manager, who serves at the discretion of the council, became enraged and ordered an investigation and prosecution, and held a press conference. The city prosecutor, citing First Amendment concerns and a conflict of interest, declined to get involved. The arrest was orchestrated to occur just before the election. All but one of the city council members up for re-election was re-elected. It is unknown how much either the mailing or the false arrest affected the outcome.
Case history:
Shortly before the election, Shaffer was arrested on charges of violating WV code 3-8-12(a) and conspiring to do so, based on a warrant prepared June 1 by Lt. Robert Matheny signed by Magistrate Davis. Davis has recused himself. The case was transferred to Magistrate Marple. The city prosecutor has recused himself. A special prosecutor has been appointed. An amicus letter was submitted by myself. WV 3-8-12(a), in its current form, is apparently a re-enactment, in slightly different text, of the 3-8-12(a) which was permanently enjoined as unconstitutional in West Virginians for Life v Smith.
Summary of argument
Four controlling Supreme Court opinions hold that anonymous political speech is protected by the First Amendment. Numerous lower court opinions have agreed. Strict scrutiny applies. Criminal statutes are to be construed narrowly and are subject to strict scrutiny when they involve speech. The statute is defective in that it lacks a scienter element.
A federal decision enjoined an earlier version of the statute for reasons which apply here as well. The statute is void and unconstitutional, so Shaffer has committed no crime, and the case should be promptly dismissed. If, arguendo, the statute were valid, Shaffer hasn’t violated it. The West Virginia constitution protects political fliers from censorship. No previous case has addressed anonymity under the state constitution, but at least 7 other states have found anonymity to be protected under state constitutional provisions similar to West Virginia’s.
Argument
A 1 Controlling authority of the United States Supreme Court holds that anonymous political speech is protected by the First Amendment.
WV 3-8-12(a) reads “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.”
A component of the First Amendment is the right to speak with anonymity. This component of free speech is well established. See, e.g., Buckley v. American Constitutional Law Found., 525 U.S. 182, 200, 119 S.Ct 6/27/2009 12:50 PM. 636, 142 L.Ed.2d 599 (1999) (invalidating, on First Amendment grounds, a Colorado statute that required initiative petition circulators to wear identification badges); McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 357, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995) (overturning an Ohio law that prohibited the distribution of campaign literature that did not contain the name and address of the person issuing the literature, holding that "[u]nder our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and dissent. Anonymity is a shield from the tyranny of the majority."); Talley v. California, 362 U.S. 60, 65, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960) (invalidating a California statute prohibiting the distribution of "any handbill in any place under any circumstances" that did not contain the name and address of the person who prepared it, holding that identification and fear of reprisal might deter "perfectly peaceful discussions of public matters of importance.") Doe v 2theMart ,140 F.Supp.2d 1088, 29 Media L. Rep. 1970 (2001).

The McIntyre decision holds that government cannot forbid the distribution of anonymous campaign literature; see also Talley v. California, 362 U.S. 60, 64-65 (1960). Majors v Abell, 317 F.3d 719 (7th Cir. 2003).
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 distribution took place in front of a school building. Dr. Husarik and Mr. Hayfield allegedly "snatched" some flyers from one of the teenagers and informed Mrs. McIntyre that the flyers violated Ohio's election laws.1 They also told Mrs. McIntyre that it was illegal to distribute her materials on school property and that she must leave the premises. The school officials are said to have threatened to call the police, but did not do so. Mrs. McIntyre continued to distribute the materials, and she left when the board meeting began. A similar incident took place a day later. 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,

Writing for the Court, Justice Roberts stated that “pamphlets have proved most effective instruments in the dissemination of opinion. And perhaps the most effective way of bringing them to the notice of individuals is their distribution at the homes of the people. On this method of communication the ordinance imposes censorship, abuse of which engendered the struggle in England which eventuated in the establishment of the doctrine of the freedom of the press embodied in our Constitution. To require a censorship through license which makes impossible the free and unhampered distribution of pamphlets strikes at the very heart of the constitutional guarantees.” Watchtower v Stratton, 536 U.S. 150 (2002). The rhetoric used in the World War II-era opinions that repeatedly saved petitioners’ coreligionists from petty prosecutions reflected the Court’s evaluation of the First Amendment values that are implicated in this case. The value judgment that then motivated a united democratic people fighting to defend those very freedoms from totalitarian attack is unchanged. It motivates our decision today. Id.

“Registration requirements also dissuade potential speakers by eliminating the possibility of anonymous speech. See Watchtower Bible, 536 U.S. at 166; see also McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 341-42 (1995) ‘[A speaker’s] decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible.’” Michael James Berger, aka Magic Mike v. City of Seattle, (9th Cir. 6/24/2009).
[T]he First Amendment requires us to err on the side of protecting political speech rather than suppressing it. FEC v Wisconsin Right to Life, 551 U.S. 449 (2007) Discussion of issues cannot be suppressed simply because the issues may also be pertinent in an election. Where the First Amendment is implicated, the tie goes to the speaker, not the censor. Id.
2. The standard of review is strict scrutiny.
[B]ecause "the identity of the speaker is no different from other components of [a] document's contents that the author is free to include or exclude," the statute's prohibition of internet transmissions which "falsely identify" the sender constitutes a presumptively invalid content-based restriction. The state may impose content-based restrictions only to promote a "compelling state interest" and only through use of "the least restrictive means to further the articulated interest." Thus, in order to overcome the presumption of invalidity, defendants must demonstrate that the statute furthers a compelling state interest and is narrowly tailored to achieve it. American Civil Liberties Union of Georgia v. Miller, 977 F.Supp. 1228 (N.D.Ga 1997).
When a State’s election law directly regulates core political speech, we have always subjected the challenged restriction to strict scrutiny and required that the legislation be narrowly tailored to serve a compelling governmental interest. J.Thomas, concurring, Buckley v. ACLF, 525 U.S. 182 (1999) Compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment. Buckley v. Valeo, 424 U.S, 1, 64 (1976) (per curiam) Thomas, id.
Critical to our First Amendment analysis, as will appear, is the central similarity between this case and McIntyre: Both involve campaign statutes that go beyond requiring the reporting of funds used to finance speech to affect the content of the communication itself. This case and McIntyre therefore involve governmental proscription of the speech itself unless it conforms to prescribed criteria. Yet while the Supreme Court's recent opinion in McConnell casts new light on some other aspects of the First Amendment principles applicable to regulation of election-related speech, nothing in McConnell undermines McIntyre's understanding that proscribing the content of an election communication is a form of regulation of campaign activity subject to traditional strict scrutiny. ACLU v Heller 378 F3d 979 (2004)

The Court’s July 29, 1999 Order noted that any content-based limitation on speech may be upheld only if the state demonstrates the restriction is both necessary to achieve a compelling state interest, and is narrowly tailored to achieve that feat. Cyberspace v Engler, (E.D.MI 2001) http://www.mediacoalition.org/mediaimages/june1decisioncyber.pdf.

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) This requires real evidence. See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 51-52 (1986) (requiring the city to show evidence “reasonably believed to be relevant to the problem the city addresses”). It is not enough for Defendants to conjecture that an injunction “could” confuse political actors, sanction excessive and unregulated campaign contributions, and deprive the public of important information. See Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 392 (2000) (“We have never accepted mere conjecture as adequate to carry a First Amendment burden.
Broward Coalition v Browning, 4:08-cv-00445-SPM-WCS Document 32 Filed 10/29/2008 Page 12 of 33.
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, id.

Where freedom is at stake, ambiguities and doubts as to statutory application, manifestly existing here, must be resolved in favor of the accused. United States v Insco, 496 F2d 204 (5th Cir 1974).
3 Similar cases have upheld speech without identification disclaimers and struck down unconstitutional statutes.
Ernest Dennis was arrested on similar facts under a similar statute.
The defendant was charged with a violation of G. L. c. 56, Section 41, which makes a crime of the writing, printing, posting or distribution of anonymous circulars and posters which are designed to aid or to defeat any candidate for nomination or election to any public office or any question submitted to the voters. The defendant wrote a four page tabloid circular under the name "Saugus News Enquirer," devoted to commentary generally critical of incumbent selectmen of Saugus who were candidates for reelection. The defendant arranged for the printing and distribution without charge of the circular two days before the election. The defendant's name and address did not appear on the circular, nor did the name of any other person or organization responsible for the publication. Rather, it stated that the "Saugus News Enquirer is owned by the Association of Concerned Taxpayers, Box 54, Saugus, Mass. Commonwealth v Dennis, 368 Mass. 92 (1974).
The court found the statute unconstitutional under Talley and lower court cases about
disclaimers, and under the Massachusetts constitution.
"The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct." 283 U.S. at 720, 51 S. Ct. at 632. Freedom from prior restraint upon speech and press extends to false, as well as true statements. Patterson v. Colorado, 205 U.S. 454, 462, 27 S. Ct. 556, 51 L. Ed. 879 (1907). Town of Lantana v Pelczynski, 290 So. 2d 566 (Fla. App. 1974).
By requiring identification of the speaker, section 29 -- 14 plainly imposes a substantial restriction on the right to express political views. Under this statute even pure political advocacy, such as urging the public to "vote for Smith," is banned unless the author is identified. The State apparently regards the impairment as a minor one because it applies only to certain political literature, not to anonymous literature in general. This argument, though, overlooks the rationale for striking down the broader law in Talley, which was the importance of anonymous political speech. "Speech concerning public affairs is more than self-expression; it is the essence of self-government." Illinois v White, 506 NE2d 1284 (Ill. 1987).
In McIntyre v. Ohio Elections Commission, 514 U.S. 334, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995), the Supreme Court struck down as unconstitutional an Ohio statute that required all printed political campaign literature in the state to contain the name and address of the person or head of the organization responsible for the publication of the literature. The Court held that the Ohio statute violated the First Amendment because it burdened core political speech in a manner that was not narrowly tailored to serve an overriding state interest. Id. 115 S.Ct. at 1519-24. Stewart contends that this case is controlled by McIntyre. Stewart is correct.
The Supreme Court made clear in McIntyre that campaign literature in support of a candidate for elective office is "core political speech" that is entitled to the fullest protection of the First Amendment.
Discussion of public issues and debates on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order to assure the unfettered interchange of ideas for the bringing about of political and social changes desired by the people. Stewart v Taylor, 953 F.Supp.1047 (S.D.Ind.1997)
State v. N.Dakota Ed. Assoc., 262 N.W.2d 731 (N.D. 1978), concerned a notice in "North Dakota Education News" opposing a ballot measure. A jury convicted the association of violating a disclaimer rule. The North Dakota Supreme Court ruled “that the statute is violative of the State and Federal Constitutions. Anyone who has been victimized by anonymous smears will understand the motives of the sponsors. But constitutional imperatives must prevail and our hopes must lie in the good sense and decency of the electorate, or in the passage of a more carefully drawn statute designed to meet the specific evil.” Id.
James Wilson was arrested and detained by the El Reno, Oklahoma, police department for distributing anonymous campaign literature in violation of a state statute. While the matter was still under investigation and before formal charges had been filed, Wilson brought this suit under 42 U.S.C. Sec. 1983 (1982)…. In this case, the uncontroverted record reveals that Wilson and his family were subjected to substantial harassment when his campaigning activity became known. The record supports the reasonable inference that those supporting the candidate whom Wilson opposed played some part in Wilson's arrest, because the candidate's attorney arrived at the police station shortly after Wilson and threatened Wilson with a civil suit as well as criminal prosecution. When, as here, "a law infringes on the exercise of First Amendment rights, its proponent bears the burden of establishing its constitutionality." ACORN v. Municipality of Golden, 744 F.2d 739, 746 (10th Cir.1984). The interests of the state in enacting such a law "must survive exacting scrutiny." Buckley, 424 U.S. at 64, 96 S.Ct. at 656. The law must be substantially related to a compelling governmental interest, and must be narrowly drawn so as to be the least restrictive means of protecting that interest. See NAACP v. Alabama, 357 U.S. 449, 463, 78 S.Ct. 1163, 1172, 2 L.Ed.2d 1488 (1958); Rosen v. Port of Portland, 641 F.2d 1243, 1246 (9th Cir.1981) (citing cases). Wilson v Stocker, 819 F.2d (1999).
The court declared the statute unconstitutional.
Additional cases that have found anti-anonymity statutes unconstitutional or narrowed them to
protect plaintiffs’ speech include:
Anonymous v. Delaware, 2000 Del. Ch. Lexis 84 (2000),
Arkansas Right to Life v. Butler, 29 F.Supp.2d 540, sustained on othergrounds146 F.3d 558 (8th Cir 1998),
City of Bogalusa v. May, 212 So.2d 408 (1968),
People v Drake, (Cal.),
People v. Bongiorni, 205 Cal. App. 2d Supp. 856 (Sup. Ct. 1962),
Doe v. Mortham, 708 So.2d 929 (Fla.1998),
Griset v. Fair Political Practices Commission, 69 Cal. App. 4th 818, 82 Cal. Rptr.2d 25 (1999), reversed on other grounds,
Printing Industries of the Gulf Coast v. Hill, 382 F.Supp. 8011 (S.D.Tx 1974), 42 L.Ed.26 33 dismissed as moot,
Idaho v. Barney, 448 P.2d 195 (1968),
Louisiana. v. Moses, 655 So. 2d 779 (La. Ct. App. 1995),
Lousiana v. Fulton, 3.37 So.2d 866 (La. 1976),
New York v. Duryea, 351 NYS2d 978 (1974),
In re Opinion of the Justices, 324 A.2d 211 (Del. 1974),

Opinion of the Justices, 306 A.2d 18 (Maine 1973)
Ogden v. Marendt, 264 F.Supp. 2d 785 (S.D. Ind. 2003) (S.D. Ind 2004),
ShrinkMissouri v. Maupin, 892 F. Supp. 1246 (E.D. Mo. 1995), aff'd, 71 F.3d
1422 (8th Cir. 1995),
Schuster v. Imperial County Mun. Ct., 167 Cal. Rptr. 447 (Cal. Ct. App.
1980), cert. denied, 450 U.S. 1042.
Smithers v Fla. Elections Comm’n, unreported.
Texas v. Doe, 61 S. W. 3d 99, (Tx. Cr.App. 5/14/2003)
Vermont Right to Life v. Sorrell, 221 F.3d 376, 392 (2d Cir. 2000),
West Virginians for Life v Ireland (S.D.WV 2009)

Ctr. for Individual Freedom, Inc. v. Ireland, Nos. 1:08-cv-00190 & 1:08-cv-01133, 2008 WL 4642268 (S.D. W.Va. Oct. 17, 2008) (consolidated w/ WVL v. Ireland)

West Virginians for Life, Inc. v. Smith, 919 F. Supp. 954 (S.D. W. Va. 1996),
Yes to Life PAC v. Webster,
Zwickler v. Koota, 290 F. Supp. 244 (E. D. N. Y. 1968), vacated on other grounds (mootness) sub nom. Golden v. Zwickler, 394 U.S. 103 (1969)
The right to anonymous speech is part of a larger principle of the First Amendment: that the speaker, rather than the government, controls the content of speech, and government may not compel speech. Other cases illustrating this point include Miami Herald v Tornillo, 418 U.S. 241 (1974) which held that the state cannot control the content of newspaper editorial pages. Newspaper editorial pages traditionally engage in anonymous express advocacy in the form of unsigned editorials endorsing candidates. Wooley v Maynard 430 U.S. 705 (1977), held that the state could not require Wooley to proclaim “Live Free or Die” on his license plate. Riley v. Federation of the Blind, 487 U.S. 781 (1998) ruled that the government could not compel spoken disclaimers in charitable phone solicitation. Washington ex rel Public Disclosure v. 119 Vote No!, 957 P.2d 691 (1998) was not about disclaimers, but involved a narrowly tailored statute prohibiting false statements in campaign ads. The court found the statute unconstitutional, illustrating the difficulty of regulation in this area. The West Virginia statute is not limited to false defamatory and malicious anonymous speech, but includes innocent speech such a sign saying “Vote for Zeke Lopez” as well as the newsletter at issue in this case.
4. Criminal statutes which infringe on speech must be subjected to strict scrutiny and
narrowly construed.
[T]he CDA is a criminal statute. In addition to the opprobrium and stigma of a criminal conviction, the CDA threatens violators with penalties including up to two years in prison for each act of violation. The severity of criminal sanctions may well cause speakers to remain silent rather than communicate even arguably unlawful words, ideas, and images. See, e.g., Dombrowski v. Pfister, 380 U.S. 479, 494 (1965). As a practical matter, this increased deterrent effect, coupled with the "risk of discriminatory enforcement" of vague regulations, poses greater First Amendment concerns… ACLU v Reno, 117 S.Ct. 2329 (1997).
The First Amendment commands, “Congress shall make no law … abridging the freedom of speech.” The government may violate this mandate in many ways, e.g., Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995); Keller v. State Bar of Cal., 496 U.S. 1 (1990), but a law imposing criminal penalties on protected speech is a stark example of speech suppression. Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).
5 The statute is additionally unconstitutional because it lacks a scienter requirement.
By dispensing with any requirement of knowledge of the contents of the book on the part of the seller, the ordinance tends to impose a severe limitation on the public's access to constitutionally protected matter. For if the bookseller is criminally liable without knowledge of the contents, and the ordinance fulfills its purpose, he will tend to restrict the books he sells to those he has inspected; and thus the State will have imposed a restriction upon the distribution of constitutionally protected, as well as obscene literature. It has been well observed of a statute construed as dispensing with any requirement of scienter that: "Every bookseller would be placed under an obligation to make himself aware of the contents of every book in his shop. It would be altogether unreasonable to demand so near an approach to omniscience. Smith v California, 361 U.S. 147 (1959).

6 A prior case on 3-8-12(a) is persuasive that the statute is unconstitutional here.
An additional reason why the statute does not apply is that the mailing did not contain express advocacy. As explained in cases ranging from Buckley v Valeo, 424 U.S. 1, 64 (1976), to West Virginians for Life v. Smith, 960 F Supp 1036 (1996), “supporting or aiding” is too vague to be constitutional unless narrowly construed to be limited to express advocacy. Such a construction does not save the statute from being unconstitutional under Talley, but is an additional limit on how it could be applied. See cases collected at http://www.jamesmadisoncenter.org/Documents/Boppresume0208.pdf, pp 20-25.

Accordingly, we hold that the phrase "for the purpose of influencing the outcome of an election," as used in Code §§ 24.2-901, -910, and -1014, as well as its implication for terms used in Code § 24.2-908, may be narrowly construed to limit the application of those statutes to groups that expressly advocate the election or defeat of a clearly identified candidate. Virginia Society for Human Life Incorporated v. Caldwell, 152 F3d 268 (4th Cir. 1998).

As the Court noted in WRTL II, it has never recognized a compelling interest in regulating ads . . . that are neither express advocacy nor its functional equivalent. 127 S.Ct. at 2671. Broward Coalition v Browning, 2008 WL 4791004 (N.D. Fl 2008)
The only precedent on WV 3-8-12 is West Virginians for Life v Smith, 919 F. Supp 954 (1996), 960 F Supp 1036 (1996). Plaintiffs objected to several aspects of the election code. There were two reported rulings, the first granting a temporary injunction, the second making the injunction permanent.
Furthermore, W. Va. Code § 3-8-12 provides that "no person shall publish, issue or circulate, or cause to be published, issued or circulated, any anonymous letter, circular or other publication tending to influence voting at any election" and prohibits newspapers or other periodicals from publishing any advertisement which tends to influence voting at any election unless the advertisement is clearly marked as a paid advertisement, and includes the name of the person responsible for it and the name of the candidate on whose behalf it is published. 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. 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. Smith, id.

Contrast the previous 3-8-12 with today’s version:
WV 3-8-12(a) reads “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.”
What the legislature has tried to do is to focus the statute somewhat more narrowly on candidates, excluding ballot questions, although that would not help the voter guides that were at issue in Smith. This misunderstands McIntyre, and ignores Talley. The question presented in McIntyre was whether there is an elections exception to the rule in Talley that the First Amendment protects anonymous political speech. The holding of McIntyre was that there is no elections exception to Talley’s rule, and that anonymous election speech is protected by the First Amendment. McIntyre cited with approval cases such Illinois v White, 506 NE2d 1284 (Ill. 1987), and People v Duryea, 351 NYS2d 978 (1974), which were candidate elections. McIntyre found facially unconstitutional an Ohio statute which required identification disclaimers on candidate literature. If the Court’s intent had been to merely exempt ballot measures, it could have construed the statute narrowly. Instead it found it facially unconstitutional, that is, it was unconstitutional 100% of the time. The facts which gave Margaret McIntyre standing involved a ballot measure, and the court illustrated its ruling with discussion of the facts of her case, but what governs is the holding. The new statute is just as unconstitutional as the previous version, and cannot be enforced by this court. In West Virginians for Life, the only relief the court gave was to narrow the statute to only express advocacy, because that was all the relief plaintiffs had asked for. Their lawyer, James Bopp, happens to be the nation’s expert on express advocacy. But if they had asked for the statute to be entirely enjoined or declared void, the court would have done so, based on McIntyre.

In this court's Memorandum Opinion entered on March 11, 1996, the court emphasized the historical importance of anonymous publication, 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. 960 F. Supp 1036.
The problem with the statute is not that it was inartfully drafted, but that I t was trying to ban a category of speech which the constitution protects. The amended statute must fail for the same reasons.
Also relevant is the ongoing consolidated case of Center for Individual Freedom v Ireland/ West Virginians for Life v Ireland. In April 2008 Judge Faber granted an injunction limiting 3-8-2(b), a similar disclaimer rule, to express advocacy. http://mailman.lls.edu/pipermail/election-law/attachments/20080530/81e82536/attachment-0003.pdf However, I am not sure that this injunction remain in force; it may have been mooted by later developments in the case. The reasoning remains sound.
7 As a factual matter, Shaffer has not violated the statute.
Under Smith, (1959), or Smith, (1996), the statute is facially unconstitutional, but it is also unconstitutional as applied to Shaffer in this case, or simply does not apply at all. He provided some of the information which was the content of the mailing, but there is no allegation that he was involved in the layout and design of the mailing, or that he printed or mailed it himself. Construing the statute narrowly, according to the principle of leniency and the doctrine of constitutional avoidance, the mailing substantially complies with the statute, because it accurately names the publication and its P O Box address, and is therefore not anonymous. (While defendant has been charged under 12(a), 12(b) is equally unconstitutional: (b) No owner, publisher, editor or employee of a newspaper or other periodical may insert, either in its advertising or reading columns, any matter, paid for or to be paid for, which tends to influence the voting at any election, unless directly designating it as a paid advertisement and stating the name of the person authorizing its publication and the candidate in whose behalf it is published.) Here, anyone interesting in knowing the publisher of the newsletter can simply call the post office and ask who has that post office box. There has been no attempt to hide. The Clarksburg Exponent-Telegraph frequently discusses city politics in unsigned editorials, but in doing so does not violate 3-8-12(a). Further, much of the material in the newsletter was copied or summarized from public records such as city council minutes and an ethics board complaint. If the intent had been to be anonymous, using public records would be an inept way to go about it. There is at least reasonable doubt that the publication would violate the statute, if the statute was not already void by reason of its unconstitutionality.
B 1 The statute violates the West Virginia constitution. The text, history, case law, and case law of other states, support a finding of unconstitutionality.
In Ex Parte Harrison, 110 S.W. 709 (Mo 1908), an official was arrested and jailed for publishing a voters’ guide without a disclaimer. The court found that the state constitution protected his speech, at a time when the First Amendment had not been extended to the states. So the right to anonymous speech is 100 years old and predates Talley v California. State constitutions have been the source of anonymous speech rights in at least California, Idaho, Illinois, Louisiana, Massachusetts, Missouri, and North Dakota. The West Virginia press freedom provisions protect political leaflets and newsletters. As far as I know, no case has considered whether there is an anonymity exception to the West Virginia freedom of the press. In such cases of first impression, we can look to the plain meaning of the constitutional text, look to the history of its adoption, look to case law setting out more general principles, look to how this question has been answered in other states with similar constitutional provisions, and obtain guidance from federal cases such as those discussed above.
The text: Art.III Sec.7. Freedom of speech and press guaranteed.
No law abridging the freedom of speech, or of the press, shall be passed…. III-16. Right of public assembly held inviolate. The right of the people to assemble in a peaceable manner, to consult for the common good, to instruct their representatives, or to apply for redress of grievances, shall be held inviolate.
III-3. Rights reserved to people. …a majority of the community has an indubitable, inalienable, and indefeasible right to reform, alter or abolish it in such manner as shall be judged most conducive to the public weal. All men are, by nature, equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity, namely: The enjoyment of life and liberty… III-10 No person shall be derived of life liberty or property, without due process of law, and the judgment of his peers.
The history: In the 1700s, New York City publisher Peter Zenger was arrested for anonymously printing booklets critical of the colonial government. A jury refused to convict him. The founders, such as James Madison and George Mason, had this episode in mind in including free press, petition, and trial by jury in the Bill of Rights. West Virginia’s Bill of Rights, article 3 of the Constitution, is modeled on the federal Bill and that of the other states, especially Virginia. Free speech was intended to promote free elections and self-government by free people. Anonymity was often used. “An Englishman” wrote Common Sense and sparked a revolution. “Publius” wrote the Federalist Papers and helped ratify the constitution. West Virginia’s succession and statehood probably has similar examples of anonymous newsletters. The current constitution was adopted in 1872. Justice Thomas’s concurrence in McIntyre is a scholarly treatise on the history of anonymous speech in the revolutionary period.
West Virginia case law establishes that political newsletters are protected by section 3-7. Bastress, the West Virginia State Constitution. “We hold that Art III, Sec. 7, was intended to provide at least as much protection to the press as the First Amendment to the Constitution of the United States provides.” Citizen Awareness v. Calhoun, 406 S.E.2d 65, 68 (W.Va. 1991). Citing Tornillo, Calhoun ruled that the state could not compel a newspaper to carry an ad. “[T]he Supreme Court of the United State’s analysis of the various standards that are applied to First Amendment issues [are] instructive because it establishes the floor below which we cannot venture.” Wheeling Park Com’n. v. Hotel Union, 479 S.E.2d 876, 882 note 6.(W.Va 1996). “The right to free speech is a very important right under our state and federal constitutions. Before that right is restricted, a court should carefully examine the facts.” Hotel Union, 479 S.E.2d at 887. “This court held in Woodruff v Board, 319 S.E.2nd 372, 379 (W.Va 1984), involving the dismissal of hospital employees for engaging in the group distribution of leaflets, that with respect to the waiver of fundamental constitutional rights, our state constitution is more stringent in its limitation of waiver than is the federal constitution.” Citizens Action v Daley, 324 S.E.2d 713, 726. Citizens Action narrowly construed “sunset” in a Fairmont solicitation ordinance in light of Article III sections 1,2,3, and 7. “Our democratic system is designed to do the will of the people, and when the people cannot express their will, the system fails. It is exactly this kind of debate which our federal and state constitutions protect.” Web v Fury, 282 SE2d 28, 43, (W.Va. 1981), discussing Art III section 16 and Art. III section 7. Fury found an absolute privilege for speech petitioning the government for redress of grievances. The Clarksburg City Council News outlines such grievances to the voters so that they can use their right to reform by casting informed votes in the election. It is privileged from the prosecution at issue here. (Fury has been limited to the New York Times v Sullivan standard in defamation cases, in Harris v Adkins, 432 S.E.2d 549, but that does not affect its application here.) Calhoun is controlling as to the point that the City of Clarksville cannot dictate the content of the Clarksville City Council News.
Whether the state constitutional speech protection also includes anonymous newsletters is not yet established, but follows from the general principles and is informed by Talley, McIntyre, ACLF and Watchtower. Additionally, at least seven other states have found a right to anonymous speech under state constitutions, including California, Idaho, Illinois, Louisiana, Massachusetts, Missouri, North Dakota, and Oregon. Schuster v. Imperial County Mun. Ct., 167 Cal. Rptr. 447 (Cal. Ct. App.), Idaho v. Barney, 448 P.2d 195 (1968), Illinois v. White, 506 NE2d 1284 (Ill. 1987), State of Lousiana v. Fulton, 3.37 So.2d 866 (La. 1976), State v. Burgess, 543 So.2d 1332 (1989), Louisiana. v. Moses, 655 So. 2d 779 (La. Ct. App. 1995), Dennis v. Massachusetts, 329 N.E.2d 706 (Mass. 1975), Ex Parte Harrison, 110 S.W. 709 (Mo 1908), New York v. Duryea, 351 NYS2d 978 (1974), N. Dakota v. N.D. Ed. Assoc., 262 N.W.2d 731, Oregon Attorney General Opinion 8266 (1999) at http://www.doj.state.or.us/agoffice/agopinions/op8266.pdf .
The best view is that the free speech and freedom of petition sections, aided by the right to reform and right to liberty set out in section 3-3, and due process under section 10, compel a finding that the statute violates the West Virginia constitution and cannot be enforced against Shaffer.
Conclusion:
The statute under which defendants were charged is void and unconstitutional under controlling precedents. The conspiracy charge collapses when the activity conspired in was legal and was protected speech. The statute also violates the West Virginia constitution. Independently of the statute’s unconstitutionality under Talley and subsequent cases, the statute is unconstitutional because it lacks a scienter element per Smith. If, arguendo, it were constitutional and not void, it does not apply on these facts, because it would need to be narrowly construed to cover only express advocacy per West Virginians for Life v Smith, and Ireland, and the mailing did not contain express advocacy. But there are at least two additional reasons Shaffer did not violate the statute: 1. he wasn’t the one who edited and published the newsletter or made any decision about the content of the masthead. He may have conspired to help put together a newsletter, but was not consulted about the format of the identification. 2. The publication was not anonymous in that listed its actual post office address, which is sufficient to establish who sent it. No effort was made to conceal authorship or publication. This was a false arrest and malicious prosecution brought at the insistence of a city manager who objected to the content of the mailing. That’s not how we do things in America. The case should be dismissed with prejudice.
Respectfully submitted,
___________________
Robbin Stewart.
Certifications:
I have sent a copy of this filing by email or hand delivery or first class post to
Traci Cook for Martin Shaffer,
Marion County Special Prosecutor Pat Wilson
___________________
Robbin Stewart
PO Box 29164 Indianapolis IN 46229-0164 gtbear at gmail.com.

IN THE MAGISTRATE COURT OF HARRISON COUNTY WEST VIRGINIA

STATE OF WEST VIRGINIA
v. Case # 09M-1334, # 09M-1335
Magistrate Keith Marple
MARTIN L. SHAFFER

MOTION FOR LEAVE TO FILE AMICUS BRIEF OF ROBBIN STEWART
Comes now Robbin Stewart and asks the court for leave to file the enclosed amicus brief in the above case, replacing or supplementing my previously filed amicus letter.
Respectfully submitted,
___________________
Robbin Stewart.
Certifications:
I have sent a copy of this filing by email or hand delivery or first class post to
Traci Cook for Martin Shaffer,
Marion County Special Prosecutor Pat Wilson
___________________
Robbin Stewart
PO Box 29164 Indianapolis IN 46229-0164 gtbear at gmail.com.