Friday, June 14, 2013



In Worley v Florida Secretary of State, the 11th Circuit, sustaining the district court, upholds a Florida disclaimer statute, requiring a 30 second commercial to have a 6 second disclaimer.
The decision has an extensive discussion of Citizens United and McIntyre.
Although wrong, it is one of the more detailed discussions of the topic I've seen recently.
It even quotes Justice Ginsberg's concurrence in McIntyre, "In for a calf is not in for a cow." I'm working on an article suggesting that CU is McIntyre's cow, that corporate speech is an example of the more limited circumstances in which disclaimer regulations would be allowed.

This is not the first time the 11th has gotten McIntyre wrong. Public Citizen, FEC v. Public Citizen, 268 F.3d 1283 (11th Cir. 2001),  is an earlier 11th circuit case upholding disclaimers under strict scrutiny. It was wrong then, it's wrong now. Public Citizen, a Nader's raiders front group, at the time was hostile to anonymous speech, but found itself hoist by its own petard. More recently they have supported Paul Allen Levy's excellent work in this area, resisting discovery in pretextual defamation suits against internet critics of corporate behavior. Perhaps the instant case is compelled by Public Citizen, although it never cites to it. This is a strong reason for en banc review.

I do not know whether this case will be appealed. I hope it will, but I wouldn't count on it. update: It's an IJ case, I'd expect a motion for en banc review and cert petition. This is a good case for a cert petition. McConnell was important for its dissent. The Roberts court is looking for cases to expand its election speech jurisprudence, following cases such as WRTL, Davis, and CU.
There is a long lasting split between the circuits, which has not been cured by McIntyre or ACLF. Cases collected at http://shaffercase.blogspot.com/2012/04/normal-0-false-false-false-en-us-x-none.htmlCU left the area in a confused state. Justice Scalia remains fervently opposed to anonymous political speech such as the secret ballot. Doe v Reed (8-1), and the disclaimer part of CU (part iv, 8-1) got strong majorities, so there is interest in both sides of the issue. Compare ACLF, in which nine members of the court found disclaimers unconstitutional.

In my opinion, the questions is less whether IJ will appeal, as it is whether IJ will focus its appeal on the potentially winnable disclaimer issue.

I don't particularly disagree with the first half of the opinion, the part about disclosure. I prefer the approach the 10th circuit took in Sampson, but it's not clearly erroneous. It's when they discuss disclaimers that they lose track. And this is not completely their own fault - Citizens United has left this area murky and confused.

A few comments after a first read:

The decision is kind of vague about what standard of review it is using for disclaimers.
 The standard of review discussion is in part one of the opinion, section A, pages 7-14,but probably applied to part two (disclaimers) as well. If so it is erroneous. 
  The court fails to distinguish between disclosure, which gets exacting scrutiny under the Buckley v Valeo line of cases, and disclaimers, which get strict scrutiny under McIntyre. In McIntyre, the Ohio Supreme Court had applied the balancing test of Anderson v Celebrezze, a test which SCOTUS recently expanded in Crawford v Marion County Board. The Supreme Court's opinion held that the Ohio court had erred, and should have applied strict scrutiny, what Justice Scalia dissenting calls the kiss of death standard, to regulation of the content of core political speech. 
To put it another way, both Mcintyre and Valeo use the phrase "exacting scrutiny", but it means something different in each case.
Scrutiny under Valeo is not really exacting at all; it ends up being a very permissive standard allowing the judges to apply their own personal preferences to the issues, resulting in indeterminacy.
But in McIntyre exacting scrutiny was the functional equivalent of strict scrutiny.

Discussing candidates' qualifications and advocating their election or defeat is pure political speech that occupies the core of the First Amendment's protection. See McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 346, 115 S. Ct. 1511, 1518-19 (1995). When a law burdens core political speech, we apply "exacting scrutiny" to determine whether the law is narrowly tailored to serve an "overriding" state interest. Id. at 347, 115 S. Ct. at 1519. - FEC v Public Citizen, 268 F.3d 1283 (11th Cir. 2001.)

  When Citizens United held that corporate speech disclaimers and disclosure are evaluated under exacting scrutiny, it did not overrule McIntyre, Talley, ACLF, Watchtower, and Wooley. Had it done so, it would have said so. CU probably didn't even overrule Tornillo v Miami Herald, a media corporation case, or Riley v Federation of the Blind. Instead, the Court was applying a more permissive standard to speech by corporations, for the reasons expressed in the now-overruled Austin case. Andrew Nathan Worley is a natural person, not a corporation, and the holding of CU part iv does not apply to him.

But even under exacting scrutiny, state ends must be legitimate. For a Florida disclaimer statute to be considered legitimate at all, the federal court here should have looked to see what Florida courts have had to say on the topic. Smithers v Fla.E.C., which found Florida disclaimer statutes unconstitutional as applied, was a lower court decision of little weight.
But Doe v Mortham was a Florida Supreme Court decision,and should not be ignored. However, Doe did not flatly find the previous statute unconstitutional, it just narrowed it down to almost nothing. Doe's narrowing construction should be binding here, if that is a possible construction. More notes after a second reading.

The decision lists four arguments plaintiffs make, and discusses each in turn. Each of these four sections of the opinion contains error. The disclaimer part of the decision is on pp 31-35 of the opinion, indicating that it doesn't get the same careful consideration as the disclosure discussion.

P's first argument is that McIntyre is controlling and remains good law. 2nd, McIntyre applies to groups as well as isolated persons. 3rd, Plaintiffs object to the decision below that they have no right to anonymous contributions to fund radio ads.

The court bases its counterarguments on McIntyre, CU, Belloti, and Citizens Against Rent Control v Berkeley. But CU and Belloti are cases about corporate speech. Rent Control was dicta. 

The court makes four arguments against plaintiffs' positions.
To over-summarize, 1) CU upheld a similar statute, 2, Belloti, 3, McIntyre wasn't about radio, 4, the court confuses contributions with expenditures, or maybe this argument is directed at plaintiff's desire to accept anonymous contributions by passing the hat.

The court correctly states that the disclaimer provisions in CU and the instant case are very similar. What it ignores is that the challenges were different. In McConnell, James Bopp had brought an argument that the disclaimer provision of BCRC didn't apply, because the material in question was not express advocacy. The Court rejected the express advocacy argument, while pointing out in a footnote* that McIntyre is still good law.
*n. 88, McConnell v FEC
  In drafting CU, Bopp again made this express advocacy argument, but after a change in counsel it was not followed up, and was not discussed in either oral argument. It got a paragraph in one of the briefs, just enough to avoid waiver. In CU, the Court again rejected the express advocacy argument, and referenced Belloti in upholding disclosure and disclaimer of corporate speech. 
 So that this particular as-applied challenge failed does not mean that either the federal statute or the Florida one are facially valid.
This was both a facial and as-applied challenge.
CU's question presented makes clear that it is a case about corporate speech. McIntyre expressly discussed Belloti as being a discussion of corporate speech that didn't apply to McIntyre and her family, in note 40.

Finally, Ohio vigorously argues that our opinions in First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978), and Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), amply support the constitutionality of its disclosure requirement. Neither case is controlling: the former concerned the scope of First Amendment protection afforded to corporations; the relevant portion of the latter concerned mandatory disclosure of campaign-related expenditures. Neither case involved a prohibition of anonymous campaign literature.

McIntyre reviewed a statute that didn't address radio, which was in a different section of the statutes. But the holding in McIntyre is that there is no general elections exception to Talley v California. The court is wrong in saying that McIntyre is a narrow decision. No case has specifically discussed disclaimers radio ads by private individuals. But there is case law that first amendment does apply to radio. The burden should be on the court, with reference to cases such as Red Lion, if it is going to carve out a radio exception to the rule of Talley. I have not read the briefs , and I do not know if they reference Talley,
 but McIntyre certainly does.
Salerno is the not the right standard for a facial challenge in a First Amendment case; the court erred here. See Washington State Grange and Crawford v Marion County. When, as here, a statute has substantial overbreadth and chills speech, it can be challenged, even if a more limited statute dealing with radio only or corporation only might survive.

 The court cites dicta from Rent Control that anonymous contributions could be banned, and in the next sentence references anonymous expenditures. But Valeo held that contributions and expenditures are different animals, and receive different levels of scrutiny. Contributions can be limited, but limits on expenditures receive strict scrutiny. The court here does not tell us what level of scrutiny it is using, but it is rather lax in practice.

 The decision never mentions Talley, which is the 1960 civil rights landmark right to privacy case that established the right to anonymous speech. There is no mention of Tornillo, Federation of the Blind, Wooley v Maynard, ACLF, Watchtower, or other binding precedents that hold that as a general matter the government may not compel the speech of private citizens.

update: on the other hand, plaintiff's first brief doesn't mention these cases either. and the complaint fails to raise state constitutional claims**, which should always be part of a case like this. they naively thought it would be enough to point to the controlling case, McIntyre, and expect to win. I've been there.
"Stewart contends that this case is controlled by McIntyre. Stewart is correct." Stewart v Taylor.

If the court is right that Florida's disclaimer statute is constitutional, it needs to do a much better job of explaining why, and for that reason the court should take up the matter en banc

But if the court is wrong, because Talley and McIntyre remain good law in light of Citizens United, a case which expanded speech for corporations and did nothing to limit the speech of natural citizens, then the court en banc must reverse this flawed decision.

** SECTION 4.Freedom of speech and press. No law shall be passed to restrain or abridge the liberty of speech or of the press. 
SECTION 5.Right to assemble.The people shall have the right peaceably to assemble, to instruct their representatives, and to petition for redress of grievances.
SECTION 23.Right of privacy.Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.

below is some of what i wrote last night on a first read; it may repeat some of what I've said above.

  McIntyre requires strict scrutiny. CU didn't, but CU was dealing with corporate speech, and this is a case about individuals, so McIntyre and Talley are the controlling precedents rather than CU.
In for a calf is not in for a cow. The cases from other circuits the court mentions are cases about speech by corporations. McKee, CFIF, Brumsickle, etc, except for Sampson, another IJ case.

The decision misunderstands the scope of McIntyre, in holding that McIntyre was a narrow decision.
The question presented in McIntyre is whether the rule of Talley has an elections exception. The holding of McIntyre is that there is no elections exception to Talley.
The 11th Circuit also bought into the myth that Margaret McIntyre was a lone pamphleteer. She actually was part of a group, larger than the group at issue in this case, which seems to be 4 people who wanted to pitch in $150 each for some radio ads. In McIntyre, there were two circles. The smaller circle was McIntyre, her son, his girlfriend, and McIntyre's husband. The first three passed out the fliers, and Mr. McIntyre continued to contest the fine even after Margaret had died. The second circle was the informal group of about 30 people who worked with McIntyre to oppose the bond referendum. Their faction had won the first two rounds. We know of them because of a lower court ruling about one of them being arrested for spaking to the city council, at the same meeting Mcintyre passed out her flyers and was threatened with prosecution. I can't find the cite right now. So the insinuation that McIntyre was a lone gunman is false. 


lower court decision (this is a ruling on a preliminary judgment motion,and may not the the order being appealed, but it gives the flavor.)

ij.org's page

complaint (pdf)

initial brief

Represented By:  ROBERT W GALL 
aha! it's an IJ case.

Institute for Justice
Phone: +1 703 682 9320
Fax: +1 703 682 9321
E-Mail: bgall ij.org
Phone: +1 850 222 6550
Fax: +1 850 222 8783
E-Mail: dschwartz rumberger.com

Phone: +1 703 682 9320
Fax: +1 703 682 9321
E-Mail: wmellor ij.org

 The statute seems to be the same one at issue in Doe v Mortham, Smithers etc. I'm out of town and have those cases in my attic somewhere. Also IJ had another florida case about disclaimers. It'll come to me.
Smithers v Fla. E.C.
2001 FEC v. Public Citizen, 268 F.3d 1283 (11th Cir. 2001),
2008 The Broward Coalition v. Browning (N.D. Fla. 2008)
Doe v. Mortham, 708 So.2d 929 (Fla.1998)


Doe turns out to be a more modest holding than I remember. It basically creates a little old ladies exception, which completely misunderstands McIntyre.

fla. rtl v crotty (m.d. fla. 1998)
Florida Right to Life, Inc. v. Lamar, 238 F.3d 1288 (11th Cir. 2001) Not directly on point, concerned other issues.

In Smithers v. Florida Elections Commission, No. 96-5705 (Fla. 2nd Cir., July
17, 1998) (Summary Judgment), appeal pending, No. 98-3095 (Fla. 1st DCA),
Judge Kevin Davey of Florida’s Second Judicial Circuit Court was presented
with the issue left open in Doe and McIntyre--- what constitutes “modest
resources”? The specific question in Smithers was whether the sponsorship
identification disclaimer requirements of section 106.143(1), Florida Statutes,
applied to an individual acting independently who spent between $100 and $500
to anonymously publish and distribute bumper stickers calling for the defeat of
his local state representative. Judge Davey concluded that the disclaimerElection Case Law Update
15 In addition to holding that the sponsorship identification provisions did not
apply to the plaintiff (section 106.143(1)(b), F.S.), the court also held that the
generic requirement to include the phrase “Paid political advertisement” was
also inapplicable. This holding directly conflicts with the Doe decision.
However, committee staff acknowledges that mandating the phrase “paid
political advertisement” on an ad without requiring identification of the sponsor
serves little, if any, practical purpose.

There are 10 active judges who would consider an en banc petition.Of these, only judge Martin, the author of Worley, was on either the Worley or Public Citizen panels.

If anyone has read this far, please leave feedback, via comments or 
email. I am thinking about drafting an amicus brief in support of en banc review, and would welcome cosigners or input.
helpful article about 11th circuit amicus practice.
example of an 11th circuit amicus brief

sets out some rules for amicus practice; the 11th circuit may have 
its own local rule. p.108.

update: a draft of that brief, although the margins did not post correctly, is here http://shaffercase.blogspot.com/2013/06/in-united-states-court-of-appeals-for.html

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