BRIEF OF AMICUS CURIAE ROBBIN STEWART IN SUPPORT OF APPELLANT

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Robbin Stewart Pro Se Amicus Curiae [Your Address] Indianapolis, IN [ZIP] [Phone] [Email]

INTEREST OF AMICUS CURIAE¹

Robbin Stewart is an Indiana resident and longtime advocate for free speech in political and election contexts. He was the successful plaintiff in Stewart v. Taylor, 953 F. Supp. 1047 (S.D. Ind. 1997), which struck down Indiana's ban on anonymous campaign literature under the First Amendment, and was co-counsel in Majors v. Abell, 361 F.3d 949 (7th Cir. 2004), which upheld a revised disclaimer law but left state constitutional questions unresolved. Amicus maintained an X.com bank account and is a shareholder in Tesla, Inc. (TSLA), and occasionally uses the X platform, giving him a direct interest in preserving the First Amendment and state-constitutional protections against compelled speech and disclosure burdens on platforms and their users. Amicus has no stake in the outcome other than advancing state constitutional protections for speech and electoral expression. [All parties have consented to this filing.]

¹ This brief was drafted with the assistance of Grok, an AI developed by xAI. All legal arguments, citations, and strategic decisions are those of amicus curiae Robbin Stewart.

SUMMARY OF ARGUMENT

New York's content-moderation transparency law (S.B. 6748) compels platforms like X Corp. to disclose detailed moderation policies and hate speech reports, imposing a material burden on expressive autonomy. Under Article I, § 8 of the New York Constitution, which provides parallel protection to the First Amendment, this law fails scrutiny as overbroad compelled speech. State constitutions provide independent grounds to invalidate such mandates, requiring the state to show no material burden on core values like political expression. Talley v. California, 362 U.S. 60 (1960), struck down an anonymity ban, and McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995), extended it to campaign literature. State courts have often found these cases persuasive as to state claims while controlling as to federal claims. The law's reporting requirements chill anonymous speech and favor certain viewpoints, violating state protections for free and equal discourse. A purpose of this brief is to provide citations to persuasive precedents from other cases, collected in Table 1.

ARGUMENT

I. NEW YORK'S CONTENT-MODERATION LAW BURDENS FREE SPEECH UNDER ARTICLE I, § 8 OF THE NEW YORK CONSTITUTION, WHICH PROVIDES PARALLEL PROTECTION TO THE FIRST AMENDMENT.

A. Historical Context: New York’s Article I, § 8 and the Rise of Anonymous Speech

New York’s Article I, § 8 has deep roots in the state’s commitment to uncompelled and anonymous political expression, dating to the 1777 New York Constitution. In People v. Croswell, 3 Johns. Cas. 337 (N.Y. Sup. Ct. 1804), the court established truth as a defense to libel and jury power over law and fact, protecting anonymous political criticism under the state’s press clause. This protection enabled New York City to become the nation’s publishing empire in the 19th century, as anonymous pamphlets, newspapers, and tracts — often critical of powerful interests — circulated freely without forced attribution. The 1821 Constitutional Convention strengthened these safeguards, ensuring no law could restrain speech or press through compelled disclosure. S.B. 6748 threatens that legacy by forcing platforms to publish government-mandated content, contrary to New York’s historical and constitutional commitment to free expression.

B. Compelled Speech Under Article I, § 8

New York's Article I, § 8 guarantees "every citizen may freely speak, write and publish his or her sentiments on all subjects," a provision New York courts interpret as offering parallel protection to the First Amendment. See Immuno AG. v. Moor-Jankowski, 77 N.Y.2d 235, 249 (1991) (Article I, § 8 provides "broader protection in cases involving private litigation" than federal law). The law's compelled disclosures (moderation policies, hate speech reports) force platforms to publish government-mandated content, altering their expressive choices. This is compelled speech akin to the "right of reply" struck down in Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), but under New York's parallel standard, it fails even if it survives federal scrutiny.

The district court erred by applying federal exacting scrutiny without addressing New York's independent protections. New York courts apply heightened scrutiny to burdens on speech, requiring the state to show a compelling interest and narrow tailoring. See People ex rel. Arcara v. Cloud Books, Inc., 68 N.Y.2d 553, 557 (1986) (Article I, § 8 "affords greater protection than the Federal Constitution"). The law's vague "hate speech" reporting chills anonymous expression, a core value under New York's constitution.

In People v. Duryea, 76 Misc. 2d 948, 352 N.Y.S.2d 290 (Sup. Ct. Nassau County 1974), a New York court struck down Election Law § 457 — which required the name and address of the sponsor or printer on all political handbills — as an unconstitutional prior restraint and overbroad ban on anonymous speech. The court emphasized that “political pamphlets are the most effective means of communication for the poor and powerless” (352 N.Y.S.2d at 297), and that compelled identification “chills that expression” by deterring those who fear reprisal or wish to let the message stand on its own (id. at 298). The same reasoning applies here: S.B. 6748’s compelled disclosure of moderation policies and hate-speech reports forces platforms to publish government-mandated content in their own expressive systems, mirroring the compelled attribution struck down in Duryea. X, like the pamphlets of 1974, has become the modern megaphone for the citizen of limited means who cannot afford traditional media — and New York should not silence it with forced speech. New York courts should follow Duryea and hold the law unconstitutional under Article I, § 8.

II. STATE CONSTITUTIONS LIKE INDIANA'S ARTICLE I, § 9 OFFER INDEPENDENT GROUNDS TO STRIKE DOWN COMPELLED DISCLOSURES THAT IMPOSE MATERIAL BURDENS ON CORE POLITICAL EXPRESSION.

Other states' constitutions provide persuasive authority for interpreting New York's Article I, § 8. For example, Indiana's Article I, § 9 protects "the free interchange of thought and opinion" and limits restrictions to those preventing "abuses." Price v. State, 622 N.E.2d 954, 963 (Ind. 1993) (restrictions on core political speech must not impose a "material burden" unless justified under police power). The law's compelled reports impose such a burden, forcing platforms to monitor and disclose "hate speech" in ways that chill anonymous political discourse.

No Indiana court has applied Price to disclaimer laws like S.B. 6748, but the framework is analogous: compelled identification or reporting exceeds police power when less restrictive alternatives (e.g., voluntary disclosure) exist. See Stewart v. Taylor, 953 F. Supp. 1047 (S.D. Ind. 1997) (striking anonymity ban; state claims unresolved). New York should follow this approach, as its constitution similarly protects against compelled speech in political contexts.

The following table of state cases illustrates a pattern of courts striking down or limiting compelled disclaimers and attribution requirements under state constitutions or statutes, protecting anonymous political speech:

Table 1: Persuasive State Cases on Compelled Disclaimers and Anonymous Political Speech

State	Case Name / Citation	Year	Outcome / Holding (Brief)
New York	People v. Duryea, 76 Misc. 2d 948, 352 N.Y.S.2d 290	1974	Struck down mandatory sponsor ID on political handbills as overbroad under First Amendment (and NY Art. I, § 8).
Arizona	Brush and Nib v. Phoenix	2019	Broad protection against compelled speech under Art. 2, § 6.
California	Schuster v. Imperial County Mun. Ct., 167 Cal. Rptr. 447	1980	Invalidated disclaimers on political leaflets under Art. I, § 2.
Delaware	Doe v. Cahill	2005	Protected anonymous online speech under state constitution.
Florida	Doe v. Mortham, 708 So. 2d 929	1998	Prohibited mandatory disclaimers on political ads under Art. I, § 4.
Idaho	Idaho v. Barney, 448 P.2d 195	1968	Struck down law requiring signatures on political posters under Art. I, § 9.
Indiana	Stewart v. Taylor, 953 F. Supp. 1047	1997	Struck down anonymity ban on campaign literature (federal, state claims left open).
Massachusetts	Commonwealth v. Dennis, 368 Mass. 92	1974	Protected anonymous political leaflets under Declaration of Rights (Art. 16).
Nevada	ACLU of Nevada v. Heller, 378 F.3d 979	2004	Struck down broad disclaimer/attribution statute under strict scrutiny (Talley/McIntyre).
Oregon	AG Opinion OP-8266	1999	Unconstitutional disclaimer statute under Art. I, § 8.

III. THE LAW'S COMPELLED DISCLOSURES ARE NOT NARROWLY TAILORED AND CHILL ANONYMOUS SPEECH, AS RECOGNIZED IN STATE CONSTITUTIONAL PRECEDENTS.

State constitutions recognize the value of anonymous speech. Talley v. California, 362 U.S. 60 (1960), struck down an anonymity ban, and McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995), extended it to campaign literature. State courts have often found these cases persuasive as to state claims while controlling as to federal claims. The law's reporting requirements force platforms to track and disclose speech that could unmask anonymous users, chilling expression under New York's broad protections.

The law is not narrowly tailored: It mandates detailed hate speech reports without clear definitions, risking viewpoint discrimination. Under Indiana's Price framework, this is a material burden; New York should find the same under Article I, § 8.

CONCLUSION

The Court should reverse and hold S.B. 6748 unconstitutional under New York's Article I, § 8 as well as under the First Amendment. Amicus urges consideration of independent state grounds to protect anonymous political speech from compelled disclosures.

CERTIFICATE OF COMPLIANCE This brief complies with FRAP 32(g)(1) and 2nd Cir. L.R. 32.1 (7,000 words or less; word count: 1,950).

CERTIFICATE OF SERVICE Served on all parties via CM/ECF on [Date].

Respectfully submitted, /s/ Robbin Stewart Robbin Stewart, Pro Se Amicus Curiae

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