COVER PAGE

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 

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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).

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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.

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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.

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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...]

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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.

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III. THE STATE’S BRIEFING ERRORS AND THE MISAPPLICATION OF REGULATORY STANDARDS.

The Commonwealth’s earlier briefing contains a fundamental error that would lead this Court astray: it treats the "public safety" interest as a blank check to bypass the "well-nigh insuperable" burden of McIntyre. The State attempts to frame SB 249 as a neutral regulatory disclosure governed by the loosey-goosey standards of Buckley v. Valeo. This is a category error. As established in ACLU v. Heller and Majors v. Abell, a law that compels a speaker to attach their legal identity to their speech is a disclaimer mandate, not a mere financial disclosure.

A. Public Safety is Not a Loophole for Arbitrary Power.
The State argues that the status of the Burlew plaintiffs diminishes their right to the anonymous shield. This position ignores the core holding of McIntyre—that the First Amendment protects the speech, not just the speaker. If the State can use a status-based "public safety" label to justify doxxing today, it can use the same logic to unmask any disfavored group tomorrow. This is the very definition of the "absolute and arbitrary power" forbidden by Section 2 of the Kentucky Constitution. As the court noted in State v. Moses, the government cannot use a general interest in "public order" to strip citizens of their constitutional right to communicate without fear of reprisal.

B. The Failure of Narrow Tailoring in the Digital Forum.
The State’s briefing further errs by suggesting that the "legal name" requirement is a minimally invasive tool. As a Redditor and former moderator, I can attest that in 2026, a legal name requirement is a digital pillory. Per Moody v. NetChoice, this Court must conduct a comprehensive review of how this mandate functions across different platforms. On a pseudonymous-by-design platform like Reddit, the State’s mandate doesn't just identify the speaker; it destroys the speaker's ability to participate in the forum safely. Under Wasson, Kentucky’s privacy shield is a "ceiling," and the State's failure to provide less restrictive alternatives—such as the community-led moderation I practiced—proves that SB 249 is not narrowly tailored.

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II. THE KENTUCKY CONSTITUTION PROVIDES INDEPENDENT PROTECTIONS AGAINST ARBITRARY DOXXING.

The Sixth Circuit's remand requires a demanding, comprehensive review, and that review must account for the independent protections afforded by the Kentucky Constitution. Kentucky law offers unique protections for individual liberty that exceed federal requirements. In Wasson v. Commonwealth, 842 S.W.2d 487 (Ky. 1992), the Kentucky Supreme Court held that our state constitution provides a "greater protection of the right of privacy than provided by the Federal Constitution." This right is rooted in Section 2 of the Kentucky Constitution, which declares that "absolute and arbitrary power exists nowhere in a republic."

SB 249 is an exercise of arbitrary power. It seeks to strip citizens of their digital privacy based solely on their status, ignoring the inherent and inalienable rights of safety and happiness guaranteed by Section 1. I believe the Commonwealth has a duty to respect the free communication of thoughts and opinions. The State cannot use a public safety label to bypass the strict construction of penal laws required by the Stephens concurrence in Caudill.

State-mandated doxxing is the definition of the arbitrary power the 1891 Constitution was written to prevent. Under the Wasson standard, the right to be left alone is an integral part of the guarantee of liberty. If the State cannot criminalize private conduct between consenting adults, it certainly cannot doxx citizens in the digital public square without a compelling interest that respects the inalienable right of the individual to speak without interference. By mandating a legal name for social media use, the State is exercising exactly the arbitrary power that Wasson and the framers of the 1891 Constitution sought to forbid.

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II. THE KENTUCKY CONSTITUTION PROVIDES INDEPENDENT PROTECTIONS AGAINST ARBITRARY DOXXING.

The Sixth Circuit's remand requires a demanding, comprehensive review, and that review must account for the independent protections afforded by the Kentucky Constitution. Kentucky law offers unique protections for individual liberty that exceed federal requirements. In Wasson v. Commonwealth, 842 S.W.2d 487 (Ky. 1992), the Kentucky Supreme Court held that our state constitution provides a "greater protection of the right of privacy than provided by the Federal Constitution." This right is rooted in Section 2 of the Kentucky Constitution, which declares that "absolute and arbitrary power exists nowhere in a republic."

SB 249 is an exercise of arbitrary power. It seeks to strip citizens of their digital privacy based solely on their status, ignoring the inherent and inalienable rights of safety and happiness guaranteed by Section 1. Per Section 8, I believe the Commonwealth has a duty to respect the free communication of thoughts and opinions. The State cannot use a public safety label to bypass the strict construction of penal laws required by the Stephens concurrence in Caudill.

State-mandated doxxing is the definition of the arbitrary power the 1891 Constitution was written to prevent. Under the Wasson standard, the right to be left alone is an integral part of the guarantee of liberty. If the State cannot criminalize private conduct between consenting adults, it certainly cannot doxx citizens in the digital public square without a compelling interest that respects the inalienable right of the individual to speak without interference. By mandating a legal name for social media use, the State is exercising exactly the arbitrary power that Wasson and the framers of the 1891 Constitution sought to forbid.

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