issue as a state-specific constitutional defect that the Attorney General (AG) has a duty to address before litigation.
By suggesting a Consent Decree or an Attorney General Official Opinion,
you are giving them a "soft off-ramp" to acknowledge the Section 9
"material burden" problem without a protracted federal fight.
[Your Name/Organization]
[Your Address]
[City, State, Zip]
[Date]
[Your Address]
[City, State, Zip]
[Date]
VIA CERTIFIED MAIL & EMAIL
Office of the Indiana Attorney General
Attn: Solicitor General / Constitutional Litigation Division
302 W. Washington Street, 5th Floor
Indianapolis, IN 46204
[Contact Email, if known]
Office of the Indiana Attorney General
Attn: Solicitor General / Constitutional Litigation Division
302 W. Washington Street, 5th Floor
Indianapolis, IN 46204
[Contact Email, if known]
RE: Pre-Suit Notice and Meet-and-Confer Request Regarding I.C. § 3-9-8 (Fabricated Media)
To the Office of the Indiana Attorney General:
I am writing to initiate a formal meet-and-confer regarding the constitutionality of Indiana Code § 3-9-8 (the "Fabricated Media" statute). I intend to challenge this statute’s validity under Article I, Section 9 of the Indiana Constitution and the "material burden" test established in Price v. State, 622 N.E.2d 954 (Ind. 1993).
The Constitutional Defect
Under Price, any law that "materially burdens" a "core constitutional value"—specifically political speech—is unconstitutional as applied unless the State can prove the speech inflicts a particularized, tortious-like harm. I.C. § 3-9-8 imposes an affirmative disclosure requirement (a "disclaimer") on political expression. This constitutes a content-based restriction on the "free interchange of thought" that goes beyond the "nuisance" regulations permitted by the Indiana Supreme Court.
Under Price, any law that "materially burdens" a "core constitutional value"—specifically political speech—is unconstitutional as applied unless the State can prove the speech inflicts a particularized, tortious-like harm. I.C. § 3-9-8 imposes an affirmative disclosure requirement (a "disclaimer") on political expression. This constitutes a content-based restriction on the "free interchange of thought" that goes beyond the "nuisance" regulations permitted by the Indiana Supreme Court.
The "Majors/Stewart" Problem
As a litigant in Majors v. Abell and Stewart v. Taylor, I am acutely aware of the tendency for courts to perform "backwards" constitutional avoidance by defaulting to First Amendment analysis while ignoring the unique, more protective reach of Section 9. To avoid redundant litigation and the "federalization" of state constitutional issues, I am proposing an alternative resolution.
As a litigant in Majors v. Abell and Stewart v. Taylor, I am acutely aware of the tendency for courts to perform "backwards" constitutional avoidance by defaulting to First Amendment analysis while ignoring the unique, more protective reach of Section 9. To avoid redundant litigation and the "federalization" of state constitutional issues, I am proposing an alternative resolution.
Proposed Resolution
Before filing a formal Complaint for Declaratory and Injunctive Relief, I invite your office to meet and confer to discuss:
Before filing a formal Complaint for Declaratory and Injunctive Relief, I invite your office to meet and confer to discuss:
- A Consent Decree: Wherein the State agrees to limit enforcement of § 3-9-8 to prevent the "material burdening" of anonymous or parody-based political speech.
- An Official AG Opinion: Under I.C. § 4-6-2-5, providing a binding interpretation that reconciles § 3-9-8 with the Price framework to protect core political values.
Please respond within fourteen (14) days to schedule a conference. If I do not hear from your office, I will proceed with a state-court filing under Indiana Trial Rule 57 to seek a definitive ruling on Section 9.
Sincerely,
[Your Signature]
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