Sunday, November 22, 2015
i have a bad memory. i'm sitting around with my family, condo at the beach, having a pre-thanksgiving feast, we've having chocolate pie and coffee, and the monsanto maui election came up, and i remembered jeanie, my sister, had a sign in support of the referendum, which did not have a disclaimer, so she has standing to bring a suit against hawaii's disclaimer statute. another project i might or might not ever follow up on.
i'm 20 pages into a memo on the mississippi disclaimer case. it looks something like this.
i'm 20 pages into a memo on the mississippi disclaimer case. it looks something like this.
Four
decisions of the Supreme Court hold or strongly imply that the
ability to speak anonymously-and thus with less concern for
repercussions-is part of the “freedom of speech” protected by the
first amendment against governmental interference. Talley v.
California, 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960);
McIntyre v. Ohio Elections Commission, 514 U.S. 334, 115 S.Ct.
1511, 131 L.Ed.2d 426 (1995); Buckley v. American Constitutional
Law Foundation, 525 U.S. 182, 199-200, 119 S.Ct. 636, 142 L.Ed.2d 599
(1999); Watchtower Bible & Tract Society of New York, Inc. v.
Stratton, 536 U.S. 150, 166-67, 122 S.Ct. 2080, 153 L.Ed.2d 205
(2002).
Summary
of argument:
In
this case where two natural persons challenge a broad disclaimer
statute, McIntyre,
Talley,
and Justice
for All
are the controlling cases, not Citizens
United or
the handful of cases from other districts which have found
corporations could not challenge disclaimer statutes as applied to
them.
That
a corporation is a co-plaintiff, tagging along, does not invalidate
their case.
This
is a case about disclaimers, not disclosures, which have a different
set of legal rules and precedents. Understanding this distinction is
the key to avoiding error. Defendant's filings are focused on
disclosure cases and largely ignore the law of disclaimers. McIntyre
established that strict scrutiny is the standard of review, what
Justice Scalia in McIntyre
calls the kiss of death standard.
This
statute is a general ban, not narrowly drawn to reach, for example,
only corporate speech or fraudulent fundraising or intrusive push
polling. This is not a statute which can withstand the kiss of
death. Since the statute is unconstitutional, it is void. Since the
statute is void, it cannot be the basis for probable cause for a
warrant, or an investigation by defendants. Plaintiffs' speech is
legal, harmless, and valuable to the election process. The
legislature is welcome to revisit this topic and pass a statute
directed toward corporate speech, but the current statute is not
susceptible to a narrowing construction; the court should not
re-write the statute. Plaintiffs have established they are entitled
to both temporary and permanent injunctive relief.
Defendants'
filings contain several errors of fact and many errors of law,
raising
issues of these public officials duty of honesty to the tribunal.
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