Tuesday, August 25, 2015
Here is a very rough first draft of a lie list for the state's response to a motion for TRO in the Mississippi disclaimer case discussed here yesterday.
Yesterday I was at the law library at West Virginia University. I didn't run into Brad Smith there. They didn't have the books I was looking for. The zenclay coffee shop I like to go to now closes at 2 pm so I missed it. But it was a good day overall.
[a "lie list" is just shop talk for a list of legal or factual errors in a document; not all such errors are intentional. some people call this process 'fisking' or maybe it's Fisking.] this part is just the list; explaining why each point is wrong is a longer part II to follow. update: I wrote part II, but i didnt save it to the cloud, and i stepped on my laptop, breaking the screen, so i'll have to re-write it, and so far (9/14) I haven't.
Yesterday I was at the law library at West Virginia University. I didn't run into Brad Smith there. They didn't have the books I was looking for. The zenclay coffee shop I like to go to now closes at 2 pm so I missed it. But it was a good day overall.
[a "lie list" is just shop talk for a list of legal or factual errors in a document; not all such errors are intentional. some people call this process 'fisking' or maybe it's Fisking.] this part is just the list; explaining why each point is wrong is a longer part II to follow. update: I wrote part II, but i didnt save it to the cloud, and i stepped on my laptop, breaking the screen, so i'll have to re-write it, and so far (9/14) I haven't.
first draft. Needs to be more
consistent how it lists the lies.
first,the AG is to be commended for
putting together the 20 page memorandum in one day.
It is understandable under the
circumstances that there are errors of fact and law.
There are at least 19 false statements of law or fact in this filing. Part I lists them. Part II explains
each.
Part 3 lists true statements of law or
fact that are then used to try to mislead the court into error.
Part 4 explains each.
Part 5 presents and overview of the
case, in order to attempt to correct the misleading picture painted
by the state.
1 Lie # 1, p.1. :
Plaintiffs claims lack a likelihood of success on the merits
2 Referring to the
statute as a “law”. p.1. The fundamental principle of american
law, from Marbury v Madison, is that an unconstitutional statute is
not law, but is void ab initio. “There is no public interest in the
enforcement of an unconstitutional statute.” ( for now, just list,
explain later.)
3 “The 1st
A protects a voter's right to know” p.2
4 Bait and switch of
mixing up disclosure and disclaimer. p.3.
5 “In fact,
Madison County voters have a well-established right to know that
information.” p.3.
6 Disclaimer rules
are an integral part of disclosure regimes. pp. 3, 6.
7 The
constitutionality of disclaimer rules is well established. p.4.
8 Citizens United
has not “officially reaffirmed the constitutionality of the”
federal disclaimer rule. Pp 4-5. @ Like a previous challenge in
McConnell v FEC, plaintiffs lost on their particular theory, an
express advocacy argument, but this does not mean other different
challenges will not prevail. The instant case is not premised on any
express advocacy argument, although the statute would be vulnerable
to one since it is vague and overbroad in the way addresesd in
Buckley v Valeo, a case defendants rely on heavily. Further, CU only
discussed corporate speech previously banned under Austin, not, as
here, nearly all election speech.
9. Plaintiff's
reliance on McIntyre is not misplaced. pp.5,13.
10. McIntyre's
target audience was not just the members of the school board, but the
voters who defeated the bond levy twice before it passed on a third
try. p.5.
11. CU removed any
doubt about the constitutionality of disclaimer rules. p.9.
12 Buckley v Valeo
did not address disclaimers in the cited passages.
13 Similarly,
Buckley v ACLF reached opposite conlusions about the
onstitututionality of disclaimers and disclosure, so the cited
section is out of context and misrepresents the holding of the case.
p.12.
14 “such
disclaimers do not limit speech.” p.13.
15 “ their
constitutionality is not in doubt” p.13.
16 McIntyre is
simply inapplicable to requiring disclaimers on traditional election
advertisements about candidates. Pp13-14.
17 “state law”
p. 14.
18 unquestionably
constitutional. p.16.
19 conflict with CU
p. 16
20 oh wow, only 19
lies, unless I missed one.
need a section on fats and law that is
true, but used to try to mislead the court.first draft. Needs to be more
consistent how it lists the lies.
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