Tuesday, June 27, 2017

Notes on meeting with Lesley Crane, lawyer for speaker of the house/GOP caucus, and Jill, staff counsel for the house of rep, or whatever her title is.

Confirming our conversation, we met today and discussed both IC 3-9-3-2.5 and IC 3-5-3-2-6, if that’s the right cite, disclaimers and the $100 threshold for fines under the Indiana Campaign Finance Act.
I enjoyed speaking with you both and think we had a productive meeting. I am following up with a few of the case sites we discussed. The briefing in Majors has a more comprehensive list of the relevant case law, but these are the highlights.

The landmark case establishing that disclaimer requirements are unconstitutional was Taley v California (1960). The better known case is McIntyre v Ohio Elections Commission (1995).
The case which applied McIntyre to Indiana’s former IC 3-9-3-2 was Stewart v Taylor (S D Ind. 1997).
I received a settlement of $7,000 in that case. I had put up a sign that said “Robbin Stewart for Township Board Vote Tuesday”.

When the legislature passed 3-9-3-2.5, re-instating the provisions that they had just been told were unconstitutional, I brought Majors v Abell. Cite. I eventually lost that case 2-1 at the 7th circuit.

I am ready to begin future rounds of litigation – I need the money – but I have no objection to a legislative solution, repealing IC 3-9-3-2.5.

Recent controlling cases include Reed Town of Gilbert and AID v Open Society, which said it is a basic principle of First Amendment law that the government cannot tell people what they must say.

This references a long line of compelled speech cases including Barnette v W Virginia Board of Education, Wooley v Maynard, Riley v Foundation for the Blind, and Tornillo v Miami Herald, among others.

There have been at least two other cases which applied McIntyre to Indiana statutes, Ogden v Marendt and Mulholland v Marion County Election Board, which I mentioned settled for $80,000, after the Board spent 150,000 retaining private counsel to handle the case.

We can avoid that sort of thing by repealing the statute. Alternatively, what both caucuses might prefer is to redraft the statute to have it apply only to corporate speech. I think such a statute would pass muster under the First Amendment in light of Citizens United, although it might have problems under Article I section 9 of the Indiana Constitution.

Thanks again for today’s meeting.
I wrote this while my internet was briefly down, so I need to add in some cites before sending.

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