Case No. 4:24-cv-00045
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
JOHN DOE, on behalf of himself and others similarly situated,
Plaintiff,
v.
DAVID BURLEW, in his official capacity as Commissioner of the Kentucky Department of Kentucky State Police, et al.,
Defendants.
BRIEF
OF AMICUS CURIAE OF ARBITRARY AARDVARK IN SUPPORT OF
PLAINTIFF
TABLE OF AUTHORITIES
- ACLU v. Heller, 117 Nev. 647 (2001).
- Americans for Prosperity Found. v. Bonta, 594 U.S. 595 (2021).
- Bates v. City of Little Rock, 361 U.S. 516 (1960).
- [Black Panther Party v. Smith, 661 F.2d 1243 (D.C. Cir. 1981)].
- Brown v. Socialist Workers '74 Campaign Committee, 459 U.S. 87 (1982).
- Brush & Nib Studio, LC v. City of Phoenix, 448 P.3d 890 (Ariz. 2019).
- Buckley v. American Constitutional Law Foundation, Inc. (ACLF), 525 U.S. 182 (1999).
- Buckley v. Valeo, 424 U.S. 1 (1976).
- Caudill v. Judicial Ethics Committee, 986 S.W.2d 435 (Ky. 1999) (Stephens, J., concurring).
- Citizens United v. FEC, 558 U.S. 310 (2010).
- Commonwealth v. Dennis, 368 Mass. 92, 329 N.E.2d 706 (1974).
- [Crocker v. Revolutionary Communist Progressive Labor Party, 533 N.E.2d 444 (Ill. App. Ct. 1988)].
- Dendrite International, Inc. v. Doe, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001).
- Digital Music News LLC v. Superior Court, 226 Cal. App. 4th 216 (2014).
- Doe v. Burlew, No. 24-5669 (6th Cir. Jan. 26, 2026).
- Doe v. Cahill, 884 A.2d 451 (Del. 2005).
- Doe v. Madiigan, 757 F.3d 633 (7th Cir. 2014).
- Doe v. Mortham, 708 So. 2d 929 (Fla. 1998).
- Ex Parte Harrison, 212 Mo. 88, 110 S.W. 709 (1908).
- Gable v. Patton, 142 F.3d 940 (6th Cir. 1998).
- Idaho v. Barney, 92 Idaho 581, 448 P.2d 195 (1968).
- Illinois v. White, 116 Ill. 2d 387, 506 N.E.2d 1284 (1987).
- In re Ind. Newspapers, Inc., 963 N.E.2d 534 (Ind. Ct. App. 2012).
- In re Opinion of the Justices, 324 A.2d 211 (Del. 1974).
- Janus v. AFSCME, 585 U.S. 878 (2018).
- Kentucky Registry of Election Fin. v. Blevins, 57 S.W.3d 236 (Ky. 2001).
- Kentucky Right to Life v. Terry, 108 F.3d 637 (6th Cir. 1997).
- McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995).
- Meyer v. Grant, 486 U.S. 414 (1988).
- Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974).
- Minersville School District v. Gobitis, 310 U.S. 586 (1940).
- Moody v. NetChoice, LLC, 603 U.S. 707 (2024).
- NAACP v. Alabama, 357 U.S. 449 (1958).
- New York v. Duryea, 351 N.Y.S.2d 978 (1974).
- NIFLA v. Becerra, 585 U.S. 755 (2018).
- Opinion of the Justices, 306 A.2d 18 (Me. 1973).
- Packingham v. North Carolina, 582 U.S. 98 (2017).
- Reed v. Town of Gilbert, 576 U.S. 155 (2015).
- Riley v. National Federation of the Blind, 487 U.S. 781 (1988).
- Schuster v. Imperial County Mun. Ct., 109 Cal. App. 3d 887 (1980).
- State of Louisiana v. Burgess, 543 So. 2d 1332 (La. 1989).
- State of Louisiana v. Fulton, 337 So. 2d 866 (La. 1976).
- State of Louisiana v. Moses, 655 So. 2d 779 (La. Ct. App. 1995).
- 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 (1960).
- Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044 (Colo. 2002).
- Wasson v. Commonwealth, 842 S.W.2d 487 (Ky. 1992).
- Washington ex rel. Public Disclosure v. 119 Vote No!, 135 Wash. 2d 618, 957 P.2d 691 (1998).
- Watchtower Bible & Tract Soc. of N.Y., Inc. v. Village of Stratton, 536 U.S. 150 (2002).
- West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).
- West Virginians for Life, Inc. v. Smith, 919 F. Supp. 954 (S.D. W. Va. 1996).
- Wilson v. Stocker, 819 F.2d 943 (10th Cir. 1987).
- Wooley v. Maynard, 430 U.S. 705 (1977).
- Zwickler v. Koota, 389 U.S. 241 (1967).
INTEREST OF AMICUS CURIAE
Amicus
Curiae, Arbitrary
Aardvark, aka Robbin Stewart, IN #174147-53 (is that it) is a scholar of state constitutional law with a
specific focus on the defense of free speech. Amicus does not claim any
expertise in the specific sex offender topics or the sociological
implications addressed in cases such as Packingham v. North Carolina
(2017). His interest is rooted in a decades-long defense of free speech
against compelled disclosure and state-mandated doxxing.
In
1996, a poll worker removed Amicus’s campaign sign, which read "Robbin
Stewart for Township Board Vote Tuesday," because it lacked a
state-mandated disclaimer. Amicus challenged this action in Stewart v. Taylor,
953 F. Supp. 1047 (S.D. Ind. 1997), ultimately settling the case for
$7,000. In that matter, the court ruled "Stewart contends that this
case is controlled by McIntyre v. Ohio. Stewart is correct."
Despite
this clear judicial recognition, Indiana resumed its unconstitutional,
unlawful, and unethical censorship. Amicus has learned that this
problem—the systematic chilling of anonymous speech through compelled
doxxing—is widespread, especially in Kentucky. As a Kentucky Colonel,
Amicus feels an obligation to the Commonwealth to correct errors in the
State’s earlier briefing that might lead this Court astray.
This
duty is informed by Amicus’s personal experience as a Redditor, and
other free speech fora over the years. Having faced bans from r/scotus
and demotion as a moderator of r/supremecourt, Amicus provides a factual
counterweight to the State’s theory that identity disclosure is a
harmless administrative act. On platforms like Reddit, anonymity is a
vital shield against the social tyranny that McIntyre v. Ohio (1995) was designed to prevent.
SUMMARY OF ARGUMENT
Kentucky’s
SB 249 is a facially content-based doxxing mandate that violates the
historical tradition of anonymous advocacy. By requiring a specific
class of speakers to use their legal names as a condition of using
social media, the State has imposed a digital identification badge that
chills core speech and triggers immediate, irreversible social
reprisals.
The January 26, 2026, remand in Doe v. Burlew
demands a comprehensive review of the law’s scope. This review reveals a
structural failure: Kentucky has ignored the bright-line protections of
McIntyre v. Ohio in favor of outdated, diluted interest-balancing tests. Per the mandate of Blevins,
core speech in the Commonwealth receives foremost First Amendment
protection, and penal laws such as SB 249 must be strictly construed.
Furthermore, under the Wasson
standard, the Kentucky Constitution provides a broader shield for
privacy and individual liberty than the federal floor, explicitly
denying the State the absolute and arbitrary power to engage in the
doxxing of its citizens.
ARGUMENT
I. KENTUCKY’S SB 249 IS A CONTENT-BASED COMPULSION OF SPEECH THAT VIOLATES THE AUTONOMY PROTECTED BY MCINTYRE AND TALLEY.
The right to remain anonymous is a foundational component of the freedom of speech. In McIntyre v. Ohio,
the Supreme Court established that the decision to omit one's name is a
shield from the "tyranny of the majority." Kentucky’s SB 249 attempts
to shatter this shield by forcing a legal name requirement onto a
disfavored class of speakers. This is not a mere administrative
disclosure; it is a forced alteration of the speaker's message. As the
court noted in Stewart v. Taylor when it held that "Stewart is correct," a prohibition on anonymous political speech is unconstitutional.
This
litigation arises from Kentucky’s 2024 enactment of SB 249, which
requires certain registered sex offenders to use their full legal names
on social media. After this Court initially enjoined the law, the Sixth
Circuit vacated that injunction on January 26, 2026. The appellate court
remanded the case, holding that the lower court failed to conduct the
"demanding, comprehensive" review required by Moody v. NetChoice.
This review requires a full accounting of the law’s scope across the
entire digital public square. Amicus submits that such a review must
conclude that the law’s primary application—the mandatory doxxing of
speakers—is a per se constitutional violation.
Exacting scrutiny is a contronym. Sometimes, as in McIntyre and Meyer v. Grant, it is the functional equivalent of strict scrutiny. Sometimes as in Valeo it is a loosey-goosey ends-means test. This double meaning led to a confusing passage in dicta in Citizens United. In disclosure cases, the court has used a less-heightened test, later modified by Bonta, called "exacting scrutiny." But in disclaimer cases, exacting scrutiny means the opposite. So the Court correctly said that it had used exacting scrutiny in disclosure and disclaimer cases. It also correctly said that it had treated disclosure cases under a less strict standard.
What the court did not say, was that it used a lower standard of scrutiny for disclaimer cases. Many commentators have leapt to this assumption, but on more careful reading it isn't there.
Elsewhere in Citizens United it reaffirmed that strict scrutiny is the standard for evaluating a ban on political speech.
Gaspee Project v Mederos is an example of a court falling for that unsound argument. No on E v Chiu is another.
Meyer
used the phrase "well-nigh insuperable." Here, Kentucky faces a
well-nigh insuperable burden—it must show overriding state interests,
narrowly tailored.
In McIntyre,
the description of this well-nigh standard does not include the phrase
"least restrictive means." But this is an omission, not a rejection. McIntyre's
standard can be described as strict scrutiny. In fact, Justice Scalia,
dissenting, called it the "kiss of death" standard. "In for a calf is
not in for a cow," Justice Ginsburg concurred. In McIntyre, the Court declined to create an elections exception to the rule in Talley.
Perhaps in this case the Supreme Court will create an exception for sex
offenders. But the lower courts lack that power. This court is bound by
Talley, McIntyre, Tornillo, and Barnette. The state would prefer we revert to the Gobitis era.
State courts throughout the country have recognized this high bar. In State v. Moses,
655 So. 2d 779 (La. Ct. App. 1995), the court held that the right to
communicate anonymously is protected by both the First Amendment and
state constitutional provisions that often afford stronger protection
than the federal floor. Other courts have similarly rejected doxxing
mandates in [Black Panther Party v. Smith] and [Crocker v. Revolutionary Communist Progressive Labor Party].
These cases demonstrate a national consensus: when the state targets
the identity of the speaker, the scrutiny must be at its most demanding.
As
a Redditor and subreddit moderator, I have seen that the choice of a
pseudonym is an integral part of how a speaker presents their ideas.
When the State compels a person to attach their legal identity to their
digital posts, it is interfering with the editorial control and judgment
protected by Tornillo and NetChoice.
The name of the speaker is part of the content of the speech. By
targeting a specific group for doxxing, Kentucky is engaging in
speaker-based and content-based discrimination that cannot survive the
strict scrutiny required by Reed v. Town of Gilbert.
II. THE KENTUCKY CONSTITUTION PROVIDES INDEPENDENT PROTECTIONS AGAINST ARBITRARY DOXXING.
[...Wasson and Section 2 sections...]
Pursuant
to Fed. R. App. P. 29, Amicus Curiae states that no party’s counsel
authored this brief in whole or in part, and no person other than the
Amicus contributed money that was intended to fund preparing or
submitting the brief. This brief was prepared with assistance from AI programs, but written by me.
