Saturday, August 13, 2011
draft:
A significant loss in the first district in NOM v McKee.
The court's analysis was similar to that in WVRTL v Tennent, discussed here last week.
In a multi-issue case about disclosure and political committees, the court upheld Maine's disclaimer statute under the apparent authority of Citizens United.
This is a case where the First Circuit denied my motion to submit an amicus brief, without saying why.
The stuff they got wrong is exactly what I covered in my brief.
In the West Virginia case, my amicus brief on the same topic was admitted, but the opinion neglects to mention or discuss it, while listing the other amici. There had been a change of judge at some point during the case, and I'm not sure the new judge read my brief.
In both cases, the court first said that the standard of review in disclaimer case is "exacting scrutiny" (that is, a very permissive standard,) rather than strict scrutiny.
So they are saying that Citizens United overruled McIntyre and ACLF and Watchtower on this point, which is a possible interpretation, although CU never says it is doing this.
They then conclude that disclaimer censorship furthers some important government interests - which it does - and uphold the statutes.
In my view, CU is better read narrowly, as requiring disclaimers for previously banned speech by corporations,and not overturing 50 years of precedents based on Talley, such as Tornillo and Wooley. But CU is ambiguous on this point,and I could be wrong.
Part of what I find objectionable about these cases is not just that they come to what I think is the wrong conclusion, but they do so with little analysis or awareness of the controlling precedents on the other side.
"Finally, we agree with the district court that 'Citizens United has effectively disposed of any attack on Maine's attribution and disclaimer requirements.'... The disclaimer and attribution requirements are, on their face, unquestionably constitutional." Footnote
It's the unquestionably that irks me,since they are wrong, I submitted a brief showing where they are wrong,and they chose to put it in the trash.
I have not read the plaintiffs' briefs, so I don't know how competently the issue was before the court.
I am aware that there is a winging tone to this post,and I should re-write it.
A significant loss in the first district in NOM v McKee.
The court's analysis was similar to that in WVRTL v Tennent, discussed here last week.
In a multi-issue case about disclosure and political committees, the court upheld Maine's disclaimer statute under the apparent authority of Citizens United.
This is a case where the First Circuit denied my motion to submit an amicus brief, without saying why.
The stuff they got wrong is exactly what I covered in my brief.
In the West Virginia case, my amicus brief on the same topic was admitted, but the opinion neglects to mention or discuss it, while listing the other amici. There had been a change of judge at some point during the case, and I'm not sure the new judge read my brief.
In both cases, the court first said that the standard of review in disclaimer case is "exacting scrutiny" (that is, a very permissive standard,) rather than strict scrutiny.
So they are saying that Citizens United overruled McIntyre and ACLF and Watchtower on this point, which is a possible interpretation, although CU never says it is doing this.
They then conclude that disclaimer censorship furthers some important government interests - which it does - and uphold the statutes.
In my view, CU is better read narrowly, as requiring disclaimers for previously banned speech by corporations,and not overturing 50 years of precedents based on Talley, such as Tornillo and Wooley. But CU is ambiguous on this point,and I could be wrong.
Part of what I find objectionable about these cases is not just that they come to what I think is the wrong conclusion, but they do so with little analysis or awareness of the controlling precedents on the other side.
"Finally, we agree with the district court that 'Citizens United has effectively disposed of any attack on Maine's attribution and disclaimer requirements.'... The disclaimer and attribution requirements are, on their face, unquestionably constitutional." Footnote
It's the unquestionably that irks me,since they are wrong, I submitted a brief showing where they are wrong,and they chose to put it in the trash.
I have not read the plaintiffs' briefs, so I don't know how competently the issue was before the court.
I am aware that there is a winging tone to this post,and I should re-write it.
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