soapbox

Florida man charged with wearing clown mask, reports Howard. more story.
What's the got to do with elections? Lower courts are split on whether wearing a mask, without other criminal activity, is free speech along the lines of McIntyre and Talley.
A New York case upheld a conviction. An Indiana case, AKKKK v Goshen, overturned one.
In October 2008, Tampa police arrested Walsh Ian Nichols after he was spotted wearing a Batman mask in Ybor City.
A judge dismissed the charges against the Caped Crusader and ordered police to return Nichols' custom-made cowl.
This case is unlikely to result in a published opinion.
Jay Thomas tells a story about the time he drove the lone ranger to the airport, that this reminded me of somehow. NSFW, you'll laugh too much.

http://animalnewyork.com/2009/12/its-wouldnt-be-the-holidays-without-jay-thomas-lone-ranger-story/
related case about zombies.

article on william rhenquist and his election betting. I like the guy a lot more now that he's dead, and I've read one of his books.

to do: contact alabama legislature re hinshaw's bill to amend disclaimer statute.
http://alisondb.legislature.state.al.us/acas/searchableinstruments/2010RS/Printfiles//HB129-int.pdf

State House: Room 535
11 S. Union Street
Montgomery, AL 36130
(334) 242-7733 District:

100 St. Clair Ave.
Suite A
Huntsville, Al 35801
Home Phone:
(256) 539-5441
Email: randy.hinshaw@alhouse.gov

Alabama House of Representatives | Alabama State House
11 South Union Street | Montgomery, AL 36130
General Information: (334) 242-7600
CONSTITUTION AND ELECTIONS

Jimmy Martin, Chair; Tommy Sherer, Vice Chair; Jay Love, Ranking Minority Member; George Bandy, Greg Canfield, Randy Davis, Chad Fincher, James Gordon, Ken Guin, Micky Hammon, Barry Mask, Joseph Mitchell, Mary Moore, Jack Page, Patricia Todd

Subcommittees

Campaign Finance

Joseph Mitchell, Chair; Jimmy Martin, Vice Chair; Micky Hammon, Ranking Minority Member; Barry Mask, Patricia Todd
Room 530-D
11 S. Union Street
Montgomery, AL 36130
(334) 242-7714 District:
Work: P.O. Box 1214
Clanton, Al. 35046

P.O. Box 86
Clanton, AL 35046
Home Phone
Work Phone:
Cell Phone:
FAX: (205) 755-3483
(205) 755-3550
(205) 299-1188
(205) 755-3555 Email: jamesmmartin@bellsouth.net

REPRESENTATIVE
JOSEPH MITCHELL
(D)

103rd District
(Mobile)


State House: Room 517-A
11 S. Union Street
Montgomery, AL 36130
(334) 242-7735 District: 465 Dexter Avenue
Mobile, AL 36604
Home Phone:
Work Phone: (251) 473-5020
(251) 473-5020 Email: house3@alhouse.org
Representative Joseph C. Mitchell, was first elected to the Alabama House of Representatives in 1994. He was baptized at and continues to serve as a Steward at Metropolitan African Methodist Episcopal Church, which was founded by his maternal grandparents. He is the eldest son of the late J. Christopher Mitchell and Julia Craig Mitchell. He is the spouse of Janetta Whitt-Mitchell. Mitchell graduated from Mobile’s historic Central High School, received a B.A. from Morehouse College, a M.A. from University of South Alabama, the C.A.S.E. from the University of Alabama in and the Ph.D. from Texas A&M University. Dr. Mitchell represents one of the most culturally diverse districts distinguished by its inclusion of "Maysville" and "Down the Bay" - two of the oldest African American residential communities in the area. The district runs from "Midtown" to "Theodore." He is the founder of Alabama American Research and Education Associates, Inc. He is a published researcher in industrial engineering and educational psychology and is an award-winning Jazz Music Educator and performing Jazz Musician.
< sounds like the guy to talk to.
letter sent:
To the honorable Joseph Mitchell,
Campaign finance subcommittee chair,
Alabama House of Representatives.

Hi. I am writing concerning HB 124,Representative Hinshaw's bill to
amend Alabama's disclaimer statute.
In 1960, in Manuel Talley v California, the United States Supreme
Court declared disclaimer statutes unconstitutional.
http://epic.org/free_speech/talley_v_california.html
A photo of Talley is attached.
That decision, along with NAACP v Patterson ex rel Alabama and Daisy
Bates v Little Rock are the foundation of the modern understanding of
the right to privacy under the First Amendment. They were key
victories in the civil rights struggle.
It is unconscionable that in 2010 Alabama is still not following the
Talley decision from 50 years ago.

Talley is still good law. Its holding, that disclaimer statutes are
unconstitutional, has been upheld 3 more times and never overturned.
McIntyre v Ohio (1995) found that there is no elections exception to
the rule in Talley.
Victoria Buckley v ACLF (1999) applied the Talley rule to petitioners.
All nine justices agreed. Watchtower v Stratton (2005) applied it to
Jehovah's Witnesses going door to door. Citizens United (2010) for the
first time allowed disclaimers - but only as to corporations.

I hope we can work together to amend HB 124 to repeal Alabama's
unconstitutional disclaimer statute - perhaps as except to
corporations.
The alternative would be that Alabama officals would be put in the
position of having to choose between following the constitution and
following the legislature. Currently, any time Alabama officials
enforce disclaimer regulations they are committing a federal crime of
interfering in civil rights, 18 USC 241. I think even under the
current administration that prosecutions would be unlikely, but
personal civil liability also attaches. I have brought several such
suits over the years, with mixed success. Stewart v Taylor (SD Ind
1997), Anonymous v Delaware.
HB 124 came to my attention via Ed Still's blog VoteLaw.

The best way to reach me is this email, gtbear@gmail.com.
Alternatively
Robbin Stewart
Box 29164
Cumberland IN 46229-0164
317.375.0931.

Thanks!

As of yesterday, I am the gop nominee for state rep district 100 in Indiana.
I will probably also seek the green and libertarian nominations.
The incumbent, John Day, is a good guy and a good legislator in a heavily democratic district so he'll probably be reelected easily. But 2010 trends gop so who knows.
I need the job. In fact, that's my current campaign slogan, "I need the job."
One of the reasons I run for office is because I'm interested in the legal questions that come up.

commentary on cu, i think.
http://abstrusegoose.com/239

http://www.politics1.com/in.htm

indiana filing deadline
Filing Deadline (Major Parties): February 19, 2010
Filing Deadline (Third Parties): June 30, 2010
Primary: May 4, 2010

A modest proposal for a constitutional amendment to fix citizens united:

Amendment 30: It shall be unlawful for a corporation to make a movie desecrating Hillary Clinton.
The senate may enact legislation in furtherance of this amendment.

A few thoughts about constitutional anti-avoidance and Citizens United.

Because I no longer update this blog much, I haven't covered the biggest election law story of the year, Citizens United, which overturned Austin, and established a right for corporations to engage in non-coordinated independent expenditures. So Microsoft can go directly after the state attorney generals it doesn't like, and Citizens United can put out books and movies without going to jail. They have books against Hillary, Gore, and Obama, and are likely to stay in the business.

The other thing CU did was uphold disclaimers on speech by corporations, narrowing Talley v California, which turns 50 this year.
This post is about addressing anti-avoidance in the context of the disclaimer issue.
Frequently, and as an informal rule of justiciability, the court decides cases before it on narrow grounds, preferring to rule on statutory issues instead of of reaching constitutional questions, or
construing statutes instead of declaring them unconstitutional, or even construing statutes instead of having to ponder whether they might be unconstitutional.
The Roberts court has been noted for finding unanimous grounds for narrow rulings of this sort more often than the Rhenquist court had.
There is a big controversy about Citizens United and whether it needed to overrule Austin, or could have ruled more narrowly. This was a hot topic in the speculation about the case as we waited for it.
The long dissent by Stevens argued about this, and there was a concurrence by the Chief Justice specially responding to the dissent. That may have been a factor in the delay in announcing the case.
I find Justice Robert's concurrence fairly plausible. He says there was no alternative opinion on narrower grounds that had 5 votes; Justice Kennedy's broad opinion was the narrowest option of those which were right.
The majority and dissent/partial concurrence did find one thing to agree on. 8 members of the court upheld the disclaimer and disclosure requirements for the ads for the anti-Hillary movie.
Only Justice Thomas dissented from that part of the opinion.
Because they didn't disagree, the disclaimer aspect of the case wasn't discussed in the dissent and concurrence.
But it struck me the other day that it's a significant example of anti-avoidance.
Citizens United, in a lawsuit filed by Jim Bopp but argued by other counsel, had challenged the disclaimer regs as being unconstitutional under the First Amendment - which they were, under the law at the time. But CU only made one argument against the regs - an express advocacy argument. This was the same line of attack that failed in McConnell and later worked in WRTL.

I'll back up for a minute and discuss an example of constitutional avoidance.
In Crawford v Marion County, the controlling minority opinion used constitutional avoidance to refrain from deciding the merits of the case about whether voter ID is unconstitutional. They held that the specific arguments and record in the case didn't justify ruling for the plaintiffs.
And while I'm strongly opposed to voter ID, the ruling is fairly persuasive.

In Citizens United, this is what they didn't do.
Under the usual constitutional avoidance doctrines, they could have decided more narrowly.
The court overruled, at least as to corporations, perhaps narrrowed is a bettter a term, the holdings in McIntyre and Talley, that disclaimers regulations are unconstitutional, although plaintiffs hadn't argued or briefed these cases and the defendants did not call for these cases to be overruled or narrowed. I had been afraid of a ruling like this, and I had wanted to file an amicus, but it was one of many things I just never got around to doing within the deadlines.
The court, if it had applied its usual constitutional avoidance tools, could have said that plaintiffs waived their broader challenge by not arguing or briefing it, have said that the express advoacy argument doesn't work here, and said that this argument on this record fails, but without foreclosing a future argument on the merits.
I don't have much of a problem with the holding itself - that corporations can be compelled to make disclaimers and file disclosure reports. But I know that the usual crowd of speech suppressors will attempt to use this holding for a more general attack on Talley and McIntyre,
and try to defend the current practice of enforcing unconstitutional disclaimer regulations against little people who dare to speak out about politics. They will argue, with likely success, that qualified immunity attaches when they violate their oaths of office to enforce these unconstitutional rules. With 8-1 to support for overturning or limiting McIntyre, defendants will be emboldened to defend cases all the way up to the Supreme Court.
Taxpayers and foundations such as the Brennan Center will foot the bill.
However, the right cases could limit the damage, or even give Justice Thomas an opportunity to write a majority opinion on this topic. The "Stand by your Ad" provisions of McCain Feingold could easily be the next section to fall. Senator Shumer is already drafting a version of "stand by your ad" directed at corporations. It is likely that the outcome will overreach, and go beyond what the court intended to allow.
In CU, the court went beyond the facts and arguments of the case to announce rules on an issue that really wasn't even before it. When the issue returns to the court with a live case and controversy, the court might reconsider how broadly it ruled in CU.
CU's ruling that corporations can be compelled to make disclaimers might be the next Austin - a case that doesn't fit with the rest of how this court feels about the right to speak out on public affairs.
When I was doing disclaimer cases, I had picked them partly because they were lowhanging fruit - what should have been easy cases of just pointing to McIntyre and Talley. Didn't work out as I hoped. But now, these are tougher cases to try, and will need deeper pockets and bigger guns.
Jim Bopp remains a major player here. The Institute for Justice is becoming a major player - Speech Now is the now case on campaign speech. I might or might not end up partnering with IJ in a West Virginia disclaimer case. Anyway, just wanted to put something down on paper about these thoughts about CU, disclaimers, and anti-avoidance.

fieger motion dismissed. controversial plaimtif's lawyer has sought to force recusal of 3 of michigan's supreme court judges.