Saturday, November 18, 2023
With this case, we recognize that both the First Amendment to the United States Constitution and Article II, Section 10 of the Colorado Constitution protect an individual's fundamental right to purchase books anonymously, free from governmental interference.
- tattered cover v thornton 44 P.3d 1044 (2002)
We hold that the Colorado Constitution requires that the innocent bookseller be afforded an opportunity for an adversarial hearing prior to execution of a search warrant seeking customer purchase records. ... In order for law enforcement officials to prevail, they must demonstrate a compelling governmental need for the specific customer purchase records that they seek.
The panel in No on E v. Chiu upheld an election
disclosure regulation that burdens Plaintiffs’ First
Amendment speech and association rights, and that will
inevitably result in voter confusion. It did so on the ground
that the law advances the government’s interest in educating
the electorate. That ruling subverts the First Amendment
rights of many San Franciscans and encourages increasingly
onerous compelled disclosure laws that will similarly fail to
advance an important government interest. This is not the
exacting scrutiny the Supreme Court reminded our circuit to
undertake when it reversed us only two years ago. See Ams.
for Prosperity Found. v. Bonta, 141 S. Ct. 2373 (2021).
[dissent from denial of en banc review]
2 The caselaw typically labels an entity’s on-ad identification of itself as
a “disclaimer” and an entity’s report to the state listing its top donors as
a “disclosure.” See, e.g., Citizens United v. FEC, 558 U.S. 310, 366–67
(2010). But because both are more intuitively understood as disclosures,
I will refer to the law here as requiring on-ad disclosures.
When a committee runs political
advertisements, it must include on the ad the identity of who
paid for the ad, i.e., the name of the committee, and list the
committee’s top three contributors of “fifty thousand
($50,000) or more.” Id. §§ 84501(c), 84502, 84503.
D) A campaign button smaller than 10 inches in diameter; a bumper sticker smaller than 60 square inches; or a small tangible promotional item, such as a pen, pin, or key chain, upon which the disclosure required cannot be conveniently printed or displayed.
(G) Any other type of communication, as determined by regulations of the Commission, for which inclusion of the disclosures required by Sections 84502 to 84509, inclusive, is impracticable or would severely interfere with the committee's ability to convey the intended message due to the nature of the technology used to make the communication.
California Code, Government Code - GOV § 84502
(a)(1) Any advertisement not described in subdivision (b) of Section 84504.3 that is paid for by a committee pursuant to subdivision (a) of Section 82013, other than a political party committee or a candidate controlled committee established for an elective office of the controlling candidate, shall include the words “Ad paid for by” followed by the name of the committee as it appears on the most recent Statement of Organization filed pursuant to Section 84101.
(2) Any advertisement not described in subdivision (b) of Section 84504.3 that is paid for by a committee pursuant to subdivision (a) of Section 82013 that is a political party committee or a candidate controlled committee established for an elective office of the controlling candidate shall include the words “Ad paid for by” followed by the name of the committee as it appears on the most recent Statement of Organization filed pursuant to Section 84101 if the advertisement is any of the following:
(A) Paid for by an independent expenditure.
(B) An advertisement supporting or opposing a ballot measure.
(C) A radio or television advertisement.
(D) A text message advertisement that is required to include a disclosure pursuant to Section 84504.7.
(c) Notwithstanding subdivisions (a) and (b), if an advertisement is a printed letter, internet website, or email message, the text described in subdivisions (a) and (b) may include the words “Paid for by” instead of “Ad paid for by.”
(d) Notwithstanding subdivisions (a) and (b), if an advertisement is a text message, the text described in subdivisions (a) and (b) may include the words “Paid for by” or “With,” instead of “Ad paid for by.”
(e) Notwithstanding subdivision (a), if an advertisement is a video advertisement that is disseminated over the internet, is a print advertisement that is larger than those designed to be individually distributed subject to subdivision (b) of Section 84504.2, is an electronic media advertisement subject to subdivision (b) of Section 84504.3, or is a text message advertisement subject to Section 84504.7, then the text for the name of the committee may be shortened by either of the following:
(1) Displaying only enough of the first part of the committee name to uniquely identify the committee. If the committee is a sponsored committee, then the name displayed must include the portion of the committee name that identifies the sponsor or sponsors, unless all of the sponsors are disclosed on the ad as top contributors as required by Section 84503. For example, if ACME Corporation is not listed as a top contributor, then a committee named “Yes on 99, Californians for a Better Tomorrow, a coalition of X, Y, and Z. Sponsored by ACME Corporation” may be disclosed as only “Yes on 99, Californians for a Better Tomorrow. Sponsored by ACME Corporation.”
(2) If the advertisement is paid for by a committee that has top contributors and is subject to Section 84503, then the committee name may be replaced by displaying the words “Committee ID” followed by the committee's identification number.
cases cited:
Ams.
for Prosperity Found. v. Bonta, 141 S. Ct. 2373 (2021).
Buckley v. Valeo, 424 U.S. 1, 64 (1976)
(per curiam).
See ACLU of Nev. v. Heller, 378 F.3d 979, 988 (9th Cir. 2004);
Riley v. Nat’l Fed’n of the
Blind of N.C., Inc., 487 U.S. 781, 797 (1988).
2023 Foundation for Individual Rights and Expression
510 Walnut St. | Suite 1250
Philadelphia, PA 19106
fire@thefire.org215-717-FIRE
The constitutional guarantee of free speech has its "fullest and most urgent application" in political campaigns. Brown v. Hartlage, 456 U.S. 45, 53, 102 S. Ct. 1523, 71 L. Ed. 2d 732 (1982) (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 271-72, 91 S. Ct. 621, 28 L. Ed. 2d 35 (1971)). Therefore, the State bears a "well-nigh insurmountable" burden to justify RCW 42.17.530's restriction on political speech. Meyer v. Grant, 486 U.S. 414, 425, 108 S. Ct. 1886, 100 L. Ed. 2d 425 (1988). This burden requires the court to apply "exacting scrutiny" to RCW 42.17.530(1)(a). Meyer, 486 U.S. at 420, 108 S. Ct. 1886. See also Buckley v. Valeo, 424 U.S. 1, 39, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976). Exacting scrutiny will invalidate the statute unless the State demonstrates a compelling interest that is both narrowly tailored and necessary. McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 347, 115 S. Ct. 1511, 1519, 131 L. Ed. 2d 426 (1995); Burson v. Freeman, 504 U.S. 191, 198, 112 S. Ct. 1846, *695 119 L. Ed. 2d 5 (1992). Such burdens are rarely met. Burson, 504 U.S. at 199-200, 112 S. Ct. 1846. Ino Ino, Inc. v. City of Bellevue, 132 Wash. 2d 103, 114, 937 P.2d 154 (1997) ("The State bears the burden of justifying a restriction on speech."). washington v no on 119! committee (WA 1998).
could quote from comm. v. wadzinski as well.
I. Anonymous Speech and the First Amendment
First Amendment protection for anonymous speech was first articulated a half-century ago in the context of political speech, Talley v. California, 362 U.S. 60, 64–65, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960), but as the Supreme Court later observed, the Talley decision harkened back to “a respected tradition of anonymity in the advocacy of political causes.” McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 343, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995).
In re Anonymous Online Speakers
661 F.3d 1168 (9th Cir. 2011)
It is now settled that “an author's decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.”
As with other forms of expression, the ability to speak anonymously on the Internet promotes the robust exchange of ideas and allows individuals to express themselves freely without “fear of economic or official retaliation ... [or] concern about social ostracism.” McIntyre, 514 U.S. at 341–42, 115 S.Ct. 1511.
Given the importance of political speech in the history of this country, it is not surprising that courts afford political speech the highest level of protection. Meyer v. Grant, 486 U.S. 414, 422, 425, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988) (describing the First Amendment protection of “core political speech” to be “at its zenith”).
In 1998, the Sixth Circuit considered a government agency's motion to compel a newspaper to answer a subpoena identifying an anonymous advertiser. NLRB v. Midland Daily News, 151 F.3d 472 (6th Cir.1998). Just last year, the Fourth Circuit considered whether to uphold an order allowing a deposition of an anonymous speaker in a securities fraud class action. Lefkoe v. Jos. A. Bank Clothiers, Inc., 577 F.3d 240 (4th Cir.2009).
A number of courts have required plaintiffs to make at least a prima facie showing of the claim for which the plaintiff seeks the disclosure of the anonymous speaker's identity. See, e.g., Doe I v. Individuals, 561 F.Supp.2d 249 (D.Conn.2008); Highfields Capital Mgmt., LP v. Doe, 385 F.Supp.2d 969 (N.D.Cal.2005); Sony Music Entm't, Inc. v. Does 1–40, 326 F.Supp.2d 556 (S.D.N.Y.2004). The lowest bar that courts have used is the motion to dismiss or good faith standard. See, e.g., Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573 (N.D.Cal.1999); In re Subpoena Duces Tecum to America Online, Inc., No. 40570, 2000 WL 1210372 (Va.Cir.Ct. Jan. 31, 2000) (reversed on other grounds, America Online, Inc. v. Anonymous Publicly Traded Co., 261 Va. 350, 542 S.E.2d 377 (2001)).
For example, if ACME Corporation is not listed as a top contributor, then a committee named “Yes on 99, Californians for a Better Tomorrow, a coalition of X, Y, and Z. Sponsored by ACME Corporation” may be disclosed as only “Yes on 99, Californians for a Better Tomorrow. Sponsored by ACME Corporation.”
[acme cartoons to go here]
Turning to the substantive issue in the case, we must determine whether section 3-9-3-2 violates Stewart's First Amendment right to freedom of speech. 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 *1054 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. at ___ - ___, 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.
Friday, November 17, 2023
https://electionlawblog.org/?p=139726
The panel’s result in this case seems both correct and one that the Supreme Court could well agree to hear and overturn. (For reasons I explain here.)
==
I got this story planted. I had not seen the decision until yesterday, and neither had rick. Maybe I should intervene, or at least do an amicus.
Law360Split Full 9th Circ. Won't Review SF Political Ad Disclosure Law
A Ninth Circuit majority on Thursday declined to rehear en banc a three-judge panel's ruling upholding a San Francisco ordinance forcing...< paywall.
Saturday, November 04, 2023
A Bucks County judge has ruled that Democrats can take down campaign signs posted on public property in the Central Bucks School District that target their candidates but don't say who paid for them. The signs — some of which read “Hey Democrats!1 day ago
philly enquirer story, paywalled.
https://news.yahoo.com/judge-orders-removal-illegal-signs-173208100.html
I have found and read the 5 page decision to take down the signs. it's wrong.
https://s3.documentcloud.org/documents/24110541/decision-and-order-bucks-county-democratic-committee-v-john-doe-11-02-2023.pdf
Wednesday, August 30, 2023
unprecedented:
in 1973 or 74, spiro agnew resigned, so ford was chosen, then nixon resigned, leaving ford as president.
currently trump is the leading contender for the gop nomination, but may be ineligible to serve if elected. so it becomes very important who trump chooses as vice. probably won't be pence.
# posted by gt @ 10:24 AM
Sunday, August 27, 2023
test
(having technical difficulties with blogger tonight.)
over at electionlawblog.org there are articles about voter ID
in wisconsin, voter ID in North Carolina.
in wisconsin, the court has just shifted to D, while in NC, the court shifted to R and promptly upheld voter ID.
meanwhile, president biden and AG garland seem to be doing nothing about voter ID.
what is being done in wisconsin, and what could be done?
what is being done in north carolina, and what could be done?
what is being done in the biden administration, and what could be done?
how about trump's election commission?
my thesis is that trump and a faction of the GOP have been acting illegally immorally and unethically to try to steal elections they werent going to win honestly. and voter ID, poll taxes, have been part of that.
this post is just a placeholder' i don't have a full rant ready but wanted to jot down something before i got distracted.
# posted by gt @ 11:56 PM
Wednesday, July 26, 2023
Trump and some of his supporters are facing charges and or legal disciplinary actions.
What I'm wondering is that election task force he had, with people like Todd Rokita and Kris Kobach. Did they do anything unethical or illegal, or was it aboveboard? Those two are now Attorneys General in their respective states, Indiana and Kansas, two republican strongholds.
Tuesday, July 18, 2023
https://www.law.com/njlawjournal/2023/07/17/anti-fusion-voting-laws-and-the-problem-of-a-two-party-system/
article about a new jersey con law case to allow fusion. discusses sundry amicus briefs. article cites richard winger. winger, still publisher of ballot access news, has stepped down as editor, with bill redpath now in that role. winger is who inspired me to get into this field, back in the 1970s. i met him when we both testified for improved ballot access in delaware.
https://newjerseymonitor.com/2022/07/20/moderate-partys-push-for-fusion-voting-finally-hits-courts/
https://newjerseymonitor.com/2023/04/20/nine-months-later-fusion-voting-case-trudges-on/
https://newjerseymonitor.com/briefs/appeals-court-denies-bid-by-n-j-gop-to-toss-fusion-voting-lawsuit/
i'm guessing the case name has "moderate party" in it. i will look for the case name, docket, complaint etc.
Congressman Tom Malinowski is another search term; he is the guy the party is backing. the gop opposes this, but i want to dig up the gop's amicus brief from timmons v. new party, authored by wiley rien, when they were all for fusion.
https://protectdemocracy.org/work/bringing-back-fusion-voting/#case-documents
found the documents. so now if i can find the time and focus, there's a bunch of briefs here to read.
Thursday, July 13, 2023
https://campaignlegal.org/sites/default/files/2023-06/m10466946.pdf?_wcsid=B4D905B4A13270C2C0C842FBEA3AA6F659162DF386D03291
https://www.azmirror.com/2023/06/28/judge-dismisses-lawsuit-against-dark-money-law-but-legal-challenges-remain/
https://www.goldwaterinstitute.org/wp-content/uploads/2022/12/Verified-Complaint.pdf
Arizona case correctly upholds disclosure, wrongfully upholds disclaimer. I should send a letter asking the court to reconsider in light of 303.
I suspect I see the hand of campaign legal center here. I wonder if they did one of their amicus briefs, and no other input except from the parties, and the court was misled into error.
update: https://campaignlegal.org/cases-actions/center-arizona-policy-inc-et-al-v-arizona-secretary-state-et-al-challenge-arizonas
yes, clc intervened. have not found their brief yet.
there is a related case. all for now, have to go run errands.
https://www.gilbertsunnews.com/news/2-groups-want-to-upend-voter-ok-d-dark-money-imitative/article_b053fec6-8247-11ed-b52e-b380edd25060.html
https://campaignlegal.org/cases-actions/americans-prosperity-et-al-v-meyer-et-al-federal-challenge-arizonas-voters-right-know
ok, i'm back from my errands and looking at the filings.
https://campaignlegal.org/sites/default/files/2023-05/VRTK%20Motion%20to%20dismiss%20%284-28-23%29_AS%20FILED.pdf
the motion to dismiss, filed in april along with the motion to intervene.
Americans for Prosperity, et al.,
v.
Damien R. Meyer
https://dockets.justia.com/docket/arizona/azdce/2:2023cv00470/1328397
lie list:
[standard disclaimer: in our office we use a "lie list" as a way of organizing thoughts about a filing, listing false statements of law or fact. not every false statement is intentionally misleading the court; mistakes can happen and some disagreements are matters of opinion. we use the term colloquially.]
1. As the Supreme Court has held, “[d]isclaimer and disclosure requirements
. . . impose no ceiling on campaign-related activities . . . and do not prevent anyone from
speaking.” Citizens United, 558 U.S. at 366 (citations and quotation marks omitted)..
The lie here is "held". This passage was dicta, and is not controlling authority.
2. Because the Act
adds to robust debate by providing the public with critical information—i.e., more
speech—about the persons behind campaign spending and contributions, it promotes the
values and principles that underlie the First Amendment.
The lie here is that censoring political speech results in more speech. see talley v california.
3. The right to free speech was designed to enable self-government, ensure responsive
officeholders, and prevent the corruption of democratic processes. [true]3 Properly understood,
disclosure laws like the VRTKA enhance, rather than constrain, the free speech necessary
to sustain our democracy.
lie. first, substitutes disclosure for disclaimer. second, such censorship of political speech does constrain free speech needed for democracy.
4. ). Rather than
abridging anyone’s ability to speak freely, the VRTKA empowers citizens to engage
meaningfully in self-government and is entirely consistent with both the language and
purpose of the First Amendment. It neither unconstitutionally “chill[s] protected speech”
nor “compel[s] association.” See Compl. Counts I & II.
lie: political censorship does abridge the ability to speech freely and chills speech.
note: found the complaint. will review the complaint before continuing with the lie list, to make sure it says what it think it says.
https://www.documentcloud.org/documents/23712995-afp-vs-meyer-prop-211-complaint
1.0 hours today, non-billable, currently 6:16 pm 7/13. 2.0, now 7:47 pm, read the complaint, taking a break.
5.
6.
7.
8.
9
10.
...
roughest notes for a letter brief before i sleep and forget where i wanted to go with this.
Dear judge,
Today I read with interest your June opinion upholding the Arizona clean elections act.
I am writing to request that you consider revising your opinion, on your own motion, in light of 303 Creative, which the supreme court handed down shortly after your opinion, on June 30th.
The case you wrote about had several issues. These include disclosure and disclaimers, challenged under the first amendment and three provisions of the state constitution.
I found your opinion thoughtful and well researched, but wrong on the First Amendment issue as to disclaimers. I express no opinion as to the disclosure issue. I think you were also wrong on the state free speech clause as to disclaimers. I express no opinion as to the second and third state constitutional claims, nor to how severability should be applied to the Act.
I am no expert on the Arizona constitution, and do not have access to an annotated Arizona constitution to more fully research this matter.
However, i can provide a list of 15 cases about disclaimers under state constitutions. 13 of these found that disclaimer rules were unconstitutional, while two upheld them. I think if you read these cases, you will find them persuasive.
I have not read the briefs in this case, which do not seem to be online. but I have given close study to the campaign legal center's briefs in similar cases, such as Gaspee Project, Helzer, and San Francisco, and suspect that you have been misled into error.
The controlling cases include 303 Creative, Janus, NIFLA v Becerra, Tornillo v Miami Herald, Wooley v Maynard, Buckley v. ACLF, Watchtower v. Stratton, Riley v. Fed. of the Blind, McIntyre v. Ohio Elections Commission, and Talley v. California.
One case which is not controlling is Citizens United. Citizens United is a case only about corporate speech, but the Arizona act is not limited to corporate speech. Cases such as Gaspee, Helzer, and San Francisco took a passage of dicta in CU out of context to assume that CU has overruled Talley, McIntyre, Tornillo, Wooley, Barnette, etc., but this is not the case. When read as a whole it becomes clear that CU expanded rather than contracted First Amendment protection of political speech. There, disclaimers were a less restrictive alternative than the total ban under Austin. Arizona has, and can have, no such ban. There, Plaintiff's complaint, as drafted by James Bopp but later argued by Paul Clement, did not challenge the constitutionality of the disclaimer rules, but only sought an exception based on the lack of express advocacy. What the court held was that the Hillary movie and ads were the functional equivalent of express advocacy, so the exception was not available. The following paragraphs praising disclosure and disclaimers were dicta, not holding. There is a complicated passage where the court first says, correctly, that exacting scrutiny has been used in disclosure and disclaimer cases. Then, the court discusses how the term exacting scrutiny was used in Buckley v Valeo (now overruled by Bonta) to mean permissive review. But what the court left out was that the same term, "exacting scrutiny" was used in McIntyre as a synonym for strict scrutiny. As Citizens United, part I, holds, political speech gets strict scrutiny.
Similarly, strict scrutiny, what Justice Scalia dissenting in McIntyre called "the kiss of death", must be applied to Arizona's disclaimer rules. If I understood your opinion correctly, you used the Bonta standard rather than the McIntyre standard, and this was error, error encouraged by false arguments from campaign legal center.
If CU had indeed held that disclaimer rules get relaxed scrutiny, this has been overruled by subsequent cases, notably Reed v Town of Gilbert.
next part, quotes from 303 creative.
certifications.
the 15 state cases. 1.0 hours on this, 10:30-11:40.
303 CREATIVE LLC. v. ELENIS, 600 U. S. ____ (2023).
It seeks
to use its law to compel an individual to create speech she
does not believe. The question we face is whether that
course violates the Free Speech Clause of the First Amendment.
The framers designed the Free Speech Clause of the First
Amendment to protect the “freedom to think as you will and
to speak as you think.”
An end because the freedom to think
and speak is among our inalienable human rights. . A means because the freedom of thought and speech is “indispensable
to the discovery and spread of political truth.”
For all these reasons, “[i]f there is any fixed star in
our constitutional constellation,” West Virginia Bd. of Ed.
v. Barnette, 319 U. S. 624, 642 (1943), it is the principle that
the government may not interfere with “an uninhibited
marketplace of ideas.” In seeking
to compel students to salute the flag and recite a pledge, the
Court held, state authorities had “transcend[ed] constitutional limitations on their powers.” 319 U. S., at 642.
Whatever state law may demand, this Court explained, the parade was constitutionally protected speech and requiring the veterans to include
voices they wished to exclude would impermissibly require
them to “alter the expressive content of their parade.”
And, the Court found, forcing the Scouts
to include Mr. Dale would “interfere with [its] choice not to
propound a point of view contrary to its beliefs.
Generally, too, the government may not compel a person to speak its own preferred messages.
Tinker v. Des Moines Independent Community School Dist.,
393 U. S. 503, 505–506 (1969); see also, e.g., Miami Herald
Publishing Co. v. Tornillo, 418 U. S. 241, 256 (1974); Wooley
v. Maynard, 430 U. S. 705, 714 (1977); National Institute of
Family and Life Advocates v. Becerra, 585 U. S. ___, ___
(2018) (NIFLA) (slip op., at 8). Nor does it matter whether
the government seeks to compel a person to speak its message when he would prefer to remain silent or to force an
individual to include other ideas with his own speech that
he would prefer not to include.
All that offends the First Amendment
just the same.
As surely as Ms. Smith seeks to engage in protected First
Amendment speech, Colorado seeks to compel speech Ms.
Smith does not wish to provide.
=
The Attorneys General of the United States and the Office of Legal Counsel (OLC) may promulgate non-binding advisory opinions. These opinions are based on authority by the Judiciary Act of 1789, 28 U.S.C. §§511-513.
https://www.justice.gov/olc/opinions-main
=
In Hurley, the Court
found that Massachusetts impermissibly compelled speech
in violation of the First Amendment when it sought to force
parade organizers to accept participants who would “affec[t]
the[ir] message.” 515 U. S., at 572. In Dale, the Court held
that New Jersey intruded on the Boy Scouts’ First Amendment rights when it tried to require the group to “propound
a point of view contrary to its beliefs” by directing its membership choices. 530 U. S., at 654. And in Barnette, this
Court found impermissible coercion when West Virginia required schoolchildren to recite a pledge that contravened
their convictions on threat of punishment or expulsion. 319
U. S., at 626–629. Here, Colorado seeks to put Ms. Smith
to a similar choice: If she wishes to speak, she must either
speak as the State demands or face sanctions for expressing
her own beliefs,
Nor, in
any event, do the First Amendment’s protections belong
only to speakers whose motives the government finds worthy; its protections belong to all, including to speakers
whose motives others may find misinformed or offensive.
; Riley v. National Federation of Blind of N. C., Inc.,
487 U. S. 781, 795–796 (1988).
no government may “‘alter’” the “‘expressive content’” of her message and no government
may “interfere with” her “desired message”.
In this case, Colorado seeks to force an individual to
speak in ways that align with its views but defy her conscience about a matter of major significance. In the past,
other States in Barnette, Hurley, and Dale have similarly
tested the First Amendment’s boundaries by seeking to
compel speech they thought vital at the time. But, as this
Court has long held, the opportunity to think for ourselves
and to express those thoughts freely is among our most
cherished liberties and part of what keeps our Republic
strong. Of course, abiding the Constitution’s commitment
to the freedom of speech means all of us will encounter ideas
26 303 CREATIVE LLC v. ELENIS
Opinion of the Court
we consider “unattractive,” post, at 38 (opinion of
SOTOMAYOR, J.), “misguided, or even hurtful,” Hurley, 515
U. S., at 574. But tolerance, not coercion, is our Nation’s
answer. The First Amendment envisions the United States
as a rich and complex place where all persons are free to
think and speak as they wish, not as the government demands. 12:22 7/14/23. another hour.
still need that list of state con cases.
Jonathan Riches (025712)
Timothy Sandefur (033670)
Scott Day Freeman (019784)
Scharf-Norton Center for Constitutional Litigation at the
GOLDWATER INSTITUTE
500 E. Coronado Rd.
Phoenix, Arizona 85004
(602) 462-5000
litigation@goldwaterinstitute.org
2:15 - sent the draft letter to tim sandefur at goldwater institute.
Monday, July 10, 2023
https://www.delcotimes.com/2023/07/09/pennsylvania-aclu-and-public-interest-law-center-file-suit-against-delaware-county-board-of-elections/
A lawsuit was filed by three Delaware County residents who didn’t get to cure their fatally flawed mail-in ballots or have their subsequent provisional ballots counted. It appears as if the lawsuit is really aimed at a state court elections ruling, which in the eyes of the plaintiffs, and the county, appears to be muddled. (PETE BANNAN-DAILY TIMES)
aclu of PA, if i get around to looking for the case name and filings.
sonja and Richard Keohane and Barbara Welsh — moved forward with the suit filed in the Delaware County Court.
https://www.democracydocket.com/wp-content/uploads/2023/06/Commenced-by-Petition.pdf
Friday, June 30, 2023
Dear Senator Young,
cc: Representative Johnson
Today the United States Supreme Court decided 303 Creative v. Colorado.
https://www.supremecourt.gov/opinions/22pdf/21-476_c185.pdf, 600 US _ (2023.)
The case reaffirmed the First Amendment principle that the government may not compel speech.
The reason I am writing is to ask your office to ask Indiana Attorney General Todd Rokita for an advisory opinion [AGO] on whether Indiana's disclaimer statute, IC 3-9-3.2.5, is unconstitutional based on this case.
The disclaimer statute is what forces candidates and others to put "paid for by _" on their signs and brochures, at the risk of being jailed or fined.
The statute also violates the state constitution, particularly Price v Indiana (1993.)
As a private citizen I cannot request the opinion myself; the request must come from an elected official.
In 1996 in Stewart v Taylor I was able to get the previous statute, then IC 3-9-3-2, struck down as unconstitutional, but the legislature quickly passed the new statute, which is just as unconstitutional, but my lawyer had retired and I have not been in the situation of being able to afford a lawyer.
Your office was a great help to me in obtaining my passport.
I hope you can assist me with this matter.
Sincerely,
Robbin Stewart.
gtbear at gmail.com.
as sent.
sent to representative johnson slightly edited.
To: Representative Andre Carson
2135 Rayburn House Office Building
Washington, DC 20515
Today the United States Supreme Court decided 303 Creative v. Colorado.
https://www.supremecourt.gov/opinions/22pdf/21-476_c185.pdf, 600 US _ (2023.)
The case reaffirmed the First Amendment principle that the government may not compel speech.
In 1960 in Talley v. California the Supreme Court held that a state cannot require disclaimers on political literature. Manual Talley, an activist with CORE, had distributed a flyer calling for a boycott of racist businesses. He was fined $10 for not putting his name and address on the flyer. As a black man married to a white woman in 1960, it would not have been safe for his family to have their home address on the flyer.
The court held that the First Amendment contains a right to privacy.
The reason I am writing is to ask your office to ask Indiana Attorney General Todd Rokita for an advisory opinion [AGO] on whether Indiana's disclaimer statute, IC 3-9-3.2.5, is unconstitutional based on these cases.
The disclaimer statute is what forces candidates and others to put "paid for by _" on their signs and brochures, at the risk of being jailed or fined. I am someone who has been tortured in Marion County Jail, and would prefer to never go through that again.
The statute also violates the state constitution, particularly Price v Indiana (1993.)
As a private citizen I cannot request the opinion myself; the request must come from an elected official.
In 1996 in Stewart v Taylor I was able to get the previous statute, then IC 3-9-3-2, struck down as unconstitutional, My sign had read "Robbin Stewart for Township Board - Vote Tuesday". It was taken down by precinct officials because it did not have the disclaimer.
But the legislature quickly passed the new statute, which is just as unconstitutional, but my lawyer had retired and I have not been in the situation of being able to afford a lawyer. Your letter of last week asked me to contact you if I needed help with a government agency.
I hope you can assist me with this matter.
Sincerely,
Robbin Stewart.
gtbear at gmail.com.
sent.
sent to rep robin shackleford, slightly edited.
sent to secstate diego morales, slightly edited.
Monday, June 19, 2023
Sunday, June 18, 2023
Friday, June 16, 2023
Smith v. California, 361 U. S. 147, 154-155 (1959) I sometimes misplace this citation, so i'm noting it here.
Smith was a case requiring scienter for possessing dirty books; it is impractical for a bookstore to read each book on its shelves. the case was cited in an indiana case about RICO as applied to bookstores,
Fort Wayne Books, Inc. v. Indiana, 489 US 46 - Supreme Court 1989, that I am just getting around to reading.
Mayor Goldsmith argued pro se.
Smith is relevant to me because the sign disclaimer statutes
often include no scienter requirement.
As far back as the decision in Near v. Minnesota ex rel. Olson, 283 U. S. 697, 720-721 (1931), this Court has recognized that the way in which a restraint on speech is "characterized" under state law is of little consequence. supra.
the case allowed rico convictions for dirty books, but disallowed pretrial seizure of the books without a prompt hearing.
dissent by stevens brennan and marshall on the rico aspect.
o'connor was concerned about ripeness and jurisdiction.
# posted by gt @ 12:42 PM
https://electionlawblog.org/?p=136869
Ned Foley didn't just print my forwarded blurb about the LWV's case in Anderson, he wrote an interesting essay about it:
New federal court lawsuit arguing a violation of one-person-one-vote in the context of city council elections. Apart from the merits of this particular case, I’ve been wondering whether the current originalist-textualist U.S. Supreme Court would have any appetite to jettison, or significantly curtail, the thoroughly nonoriginalist (let’s all admit it) Reapportionment Revolution wrought by Reynolds v. Sims and its progeny. Evenwel from a few years ago now (2016) was a significant signal in this direction, in the separate opinions from Justices Alito and Thomas. But that was before the Court became transformed by the arrival of Gorsuch, Kavanaugh, and Barrett. Of course, undoing the Reapportionment Revolution would be a hugely heavy lift in terms of jettisoning longstanding precedent, and the motivation for doing so in this context is non the same (let’s also acknowledge) as the motivation for overruling Roe in Dobbs. Still, a thorough-going revision of constitutional jurisprudence on textualists-originalist lines (of the kind that Thomas advocates) would require overruling Reynolds v. Sims and its progeny root-and-branch. At the very least, any new lawsuit predicated on those precedents must recognize the potential vulnerability–and uncertainty–on this point.
(Interestingly, and somewhat confusingly, the complaint in this new case mentions the Voting Rights Act as well as the Equal Protection Clause of the Fourteenth Amendment, but does not present a separate count alleging a VRA violation; and the website summary of the suit mentions only the constitutional claim based on a violation of “equally populated” districts.)
# posted by gt @ 12:05 PM
Wednesday, June 14, 2023
6/13/23 at fountain square brewing. 0.5 hours. 7:30-8:00. notes from common cause v indiana. my meeting with counsel in the marion county judgeships case has been rescheduled to tomorrow at 3 pm.
"[V]oting is of the most fundamental significance under our constitutional structure." Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979) (citing Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964))
State laws regulating elections "inevitably affect[]—at least to some degree—the individual's right to vote and his right to associate with others for political ends." Anderson v. Celebrezze, 460 U.S. 780, 788, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983).
Therefore, a "more flexible standard applies,[2]" which requires the court to "weigh `the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate' against `the precise interests put forward by the State as justifications for the burden imposed by its rule,' taking into consideration `the extent to which those interests make it necessary to burden the plaintiff's rights.'" Id.[takushi] at 434, 112 S.Ct. 2059 (quoting Anderson, 460 U.S. at 789, 103 S.Ct. 1564).
This balance means that, if the challenged regulation severely burdens the First and Fourteenth Amendment rights of voters, the regulation must be narrowly drawn to advance a compelling state interest. Id. (citation omitted).
Next, the court is called upon to "identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule." Anderson, 460 U.S. at 789, 103 S.Ct. 1564. In response to Common Cause's interrogatory request, Defendants declined to offer any justification for the Statute.
In sum, the Defendants asserted state interests do not justify the challenged Statute. Accordingly, the court finds and declares that Indiana Code § 33-33-49-13(b) is unconstitutional.
This balance means that, if the challenged regulation severely burdens the First and Fourteenth Amendment rights of voters, the regulation must be narrowly drawn to advance a compelling state interest. Id. (citation omitted).
