Thursday, July 13, 2023
https://www.goldwaterinstitute.org/wp-content/uploads/2022/12/Verified-Complaint.pdf
Arizona case correctly upholds disclosure, wrongfully upholds disclaimer. I should send a letter asking the court to reconsider in light of 303.
I suspect I see the hand of campaign legal center here. I wonder if they did one of their amicus briefs, and no other input except from the parties, and the court was misled into error.
yes, clc intervened. have not found their brief yet.
there is a related case. all for now, have to go run errands.
ok, i'm back from my errands and looking at the filings.
the motion to dismiss, filed in april along with the motion to intervene.
Americans for Prosperity, et al., v. Damien R. Meyer
https://dockets.justia.com/docket/arizona/azdce/2:2023cv00470/1328397
lie list:
[standard disclaimer: in our office we use a "lie list" as a way of organizing thoughts about a filing, listing false statements of law or fact. not every false statement is intentionally misleading the court; mistakes can happen and some disagreements are matters of opinion. we use the term colloquially.]
1. As the Supreme Court has held, “[d]isclaimer and disclosure requirements . . . impose no ceiling on campaign-related activities . . . and do not prevent anyone from speaking.” Citizens United, 558 U.S. at 366 (citations and quotation marks omitted)..
The lie here is "held". This passage was dicta, and is not controlling authority.
2. Because the Act adds to robust debate by providing the public with critical information—i.e., more speech—about the persons behind campaign spending and contributions, it promotes the values and principles that underlie the First Amendment.
The lie here is that censoring political speech results in more speech. see talley v california.
3. The right to free speech was designed to enable self-government, ensure responsive officeholders, and prevent the corruption of democratic processes. [true]3 Properly understood, disclosure laws like the VRTKA enhance, rather than constrain, the free speech necessary to sustain our democracy.
lie. first, substitutes disclosure for disclaimer. second, such censorship of political speech does constrain free speech needed for democracy.
4. ). Rather than abridging anyone’s ability to speak freely, the VRTKA empowers citizens to engage meaningfully in self-government and is entirely consistent with both the language and purpose of the First Amendment. It neither unconstitutionally “chill[s] protected speech” nor “compel[s] association.” See Compl. Counts I & II.
lie: political censorship does abridge the ability to speech freely and chills speech.
note: found the complaint. will review the complaint before continuing with the lie list, to make sure it says what it think it says.
https://www.documentcloud.org/documents/23712995-afp-vs-meyer-prop-211-complaint
1.0 hours today, non-billable, currently 6:16 pm 7/13. 2.0, now 7:47 pm, read the complaint, taking a break.
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roughest notes for a letter brief before i sleep and forget where i wanted to go with this.
Dear judge,
Today I read with interest your June opinion upholding the Arizona clean elections act.
I am writing to request that you consider revising your opinion, on your own motion, in light of 303 Creative, which the supreme court handed down shortly after your opinion, on June 30th.
The case you wrote about had several issues. These include disclosure and disclaimers, challenged under the first amendment and three provisions of the state constitution.
I found your opinion thoughtful and well researched, but wrong on the First Amendment issue as to disclaimers. I express no opinion as to the disclosure issue. I think you were also wrong on the state free speech clause as to disclaimers. I express no opinion as to the second and third state constitutional claims, nor to how severability should be applied to the Act.
I am no expert on the Arizona constitution, and do not have access to an annotated Arizona constitution to more fully research this matter.
However, i can provide a list of 15 cases about disclaimers under state constitutions. 13 of these found that disclaimer rules were unconstitutional, while two upheld them. I think if you read these cases, you will find them persuasive.
I have not read the briefs in this case, which do not seem to be online. but I have given close study to the campaign legal center's briefs in similar cases, such as Gaspee Project, Helzer, and San Francisco, and suspect that you have been misled into error.
The controlling cases include 303 Creative, Janus, NIFLA v Becerra, Tornillo v Miami Herald, Wooley v Maynard, Buckley v. ACLF, Watchtower v. Stratton, Riley v. Fed. of the Blind, McIntyre v. Ohio Elections Commission, and Talley v. California.
One case which is not controlling is Citizens United. Citizens United is a case only about corporate speech, but the Arizona act is not limited to corporate speech. Cases such as Gaspee, Helzer, and San Francisco took a passage of dicta in CU out of context to assume that CU has overruled Talley, McIntyre, Tornillo, Wooley, Barnette, etc., but this is not the case. When read as a whole it becomes clear that CU expanded rather than contracted First Amendment protection of political speech. There, disclaimers were a less restrictive alternative than the total ban under Austin. Arizona has, and can have, no such ban. There, Plaintiff's complaint, as drafted by James Bopp but later argued by Paul Clement, did not challenge the constitutionality of the disclaimer rules, but only sought an exception based on the lack of express advocacy. What the court held was that the Hillary movie and ads were the functional equivalent of express advocacy, so the exception was not available. The following paragraphs praising disclosure and disclaimers were dicta, not holding. There is a complicated passage where the court first says, correctly, that exacting scrutiny has been used in disclosure and disclaimer cases. Then, the court discusses how the term exacting scrutiny was used in Buckley v Valeo (now overruled by Bonta) to mean permissive review. But what the court left out was that the same term, "exacting scrutiny" was used in McIntyre as a synonym for strict scrutiny. As Citizens United, part I, holds, political speech gets strict scrutiny.
Similarly, strict scrutiny, what Justice Scalia dissenting in McIntyre called "the kiss of death", must be applied to Arizona's disclaimer rules. If I understood your opinion correctly, you used the Bonta standard rather than the McIntyre standard, and this was error, error encouraged by false arguments from campaign legal center.
If CU had indeed held that disclaimer rules get relaxed scrutiny, this has been overruled by subsequent cases, notably Reed v Town of Gilbert.
next part, quotes from 303 creative.
certifications.
the 15 state cases. 1.0 hours on this, 10:30-11:40.
303 CREATIVE LLC. v. ELENIS, 600 U. S. ____ (2023).
It seeks to use its law to compel an individual to create speech she does not believe. The question we face is whether that course violates the Free Speech Clause of the First Amendment.
The framers designed the Free Speech Clause of the First Amendment to protect the “freedom to think as you will and to speak as you think.”
An end because the freedom to think and speak is among our inalienable human rights. . A means because the freedom of thought and speech is “indispensable to the discovery and spread of political truth.”
For all these reasons, “[i]f there is any fixed star in our constitutional constellation,” West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943), it is the principle that the government may not interfere with “an uninhibited marketplace of ideas.” In seeking to compel students to salute the flag and recite a pledge, the Court held, state authorities had “transcend[ed] constitutional limitations on their powers.” 319 U. S., at 642.
Whatever state law may demand, this Court explained, the parade was constitutionally protected speech and requiring the veterans to include voices they wished to exclude would impermissibly require them to “alter the expressive content of their parade.”
And, the Court found, forcing the Scouts to include Mr. Dale would “interfere with [its] choice not to propound a point of view contrary to its beliefs.
Generally, too, the government may not compel a person to speak its own preferred messages.
Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 505–506 (1969); see also, e.g., Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, 256 (1974); Wooley v. Maynard, 430 U. S. 705, 714 (1977); National Institute of Family and Life Advocates v. Becerra, 585 U. S. ___, ___ (2018) (NIFLA) (slip op., at 8). Nor does it matter whether the government seeks to compel a person to speak its message when he would prefer to remain silent or to force an individual to include other ideas with his own speech that he would prefer not to include.
All that offends the First Amendment just the same.
As surely as Ms. Smith seeks to engage in protected First Amendment speech, Colorado seeks to compel speech Ms. Smith does not wish to provide.
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The Attorneys General of the United States and the Office of Legal Counsel (OLC) may promulgate non-binding advisory opinions. These opinions are based on authority by the Judiciary Act of 1789, 28 U.S.C. §§511-513.
https://www.justice.gov/olc/opinions-main
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In Hurley, the Court found that Massachusetts impermissibly compelled speech in violation of the First Amendment when it sought to force parade organizers to accept participants who would “affec[t] the[ir] message.” 515 U. S., at 572. In Dale, the Court held that New Jersey intruded on the Boy Scouts’ First Amendment rights when it tried to require the group to “propound a point of view contrary to its beliefs” by directing its membership choices. 530 U. S., at 654. And in Barnette, this Court found impermissible coercion when West Virginia required schoolchildren to recite a pledge that contravened their convictions on threat of punishment or expulsion. 319 U. S., at 626–629. Here, Colorado seeks to put Ms. Smith to a similar choice: If she wishes to speak, she must either speak as the State demands or face sanctions for expressing her own beliefs,
Nor, in any event, do the First Amendment’s protections belong only to speakers whose motives the government finds worthy; its protections belong to all, including to speakers whose motives others may find misinformed or offensive.
; Riley v. National Federation of Blind of N. C., Inc., 487 U. S. 781, 795–796 (1988).
no government may “‘alter’” the “‘expressive content’” of her message and no government may “interfere with” her “desired message”.
In this case, Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance. In the past, other States in Barnette, Hurley, and Dale have similarly tested the First Amendment’s boundaries by seeking to compel speech they thought vital at the time. But, as this Court has long held, the opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong. Of course, abiding the Constitution’s commitment to the freedom of speech means all of us will encounter ideas 26 303 CREATIVE LLC v. ELENIS Opinion of the Court we consider “unattractive,” post, at 38 (opinion of SOTOMAYOR, J.), “misguided, or even hurtful,” Hurley, 515 U. S., at 574. But tolerance, not coercion, is our Nation’s answer. The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands. 12:22 7/14/23. another hour.
still need that list of state con cases.
Jonathan Riches (025712) Timothy Sandefur (033670) Scott Day Freeman (019784) Scharf-Norton Center for Constitutional Litigation at the GOLDWATER INSTITUTE 500 E. Coronado Rd. Phoenix, Arizona 85004 (602) 462-5000 litigation@goldwaterinstitute.org
2:15 - sent the draft letter to tim sandefur at goldwater institute.
