Tuesday, March 30, 2004

update: denied. on to supreme ct. 04-09-04.
i filed the following with the 7th circuit.
i'm not claiming it's particularly good;
i just wanted to make sure i got something in by the deadline.
(what was filed was slightly edited from this version)

Attorney for plaintiffs.
Robbin Stewart. #17147-53
227 N. Temple Avenue
Indianapolis IN 46201

Table of Contents
Table of Authorities
Summary of Argument
A- The narrowed construction of the statute makes Majors a prevailing party.
B- The conclusion that McConnell trumps McIntyre is wrong.

Rule 26.1 Disclaimer:
All plaintiffs are represented by Robbin Stewart, esq. of Stewart & Associates.
No parties are corporations.

Table of Authorities
42 USC 1988. 4
American Constitutional Law Foundation (ACLF) v. Buckley, 525 U.S.182 (1999) 3,5,7,
Farrar v.Hobby. 4
Gable, v. Patton, 142 F.3d 940 (6th Cir. 1998); 5,7,
Griset v California 1999 7
Majors v. Abell, 792 N.E.2d 22, n. 11 (Ind. 2003). 4,5,
McConnell v. FEC, 124 S. Ct. 619, 689-94 (2003), 3,4,5,7,8
McIntyre. v. Ohio Elections Commission, 514 U.S. 334 (1995) 5,7, 8
Monell, 8
Norman v. Reed. 5
O’Brien 5
Public Citizen, FEC v., 268 F.3d at 1288 3,5,6,
Seymour v. Elections Enforcement Comm’n, 762 A.2d 880, 886-87 (Conn. 2000). 3
Stewart v Taylor 953 F Supp 1047 (1997) 7
Terry, Kentucky Right to Life, Inc. v., 108 F.3d 637, (6th Cir. 1997). 3,5,6
Valeo, Buckley v., 424 U.S.1 (1976). 5,7
Watchtower Bible & Tract Society v. Stratton, 536 U.S. 150, (2002). 3,7

Summary of Argument
In Majors v Abell, a divided panel upholds IC 3-9-3-2.5 on the basis that McConnell calls into question established precedents such as McIntyre.
A. 1. The court errs in awarding costs solely against plaintiff, where plaintiff has prevailed on a minor but determinative point and is entitled as a prevailing party to costs and fees, offset by costs as to those matters on which the government is the prevailing party.
2. The court errs in dismissing the case without reaching the issue of the brochure,
thereby denying litigants due process, because the brochure in both its present and original versions fails to include the 100 copies exception, and errs in not addressing other remaining issues such as the commerce clause claim.
B 1. The court errs in failing to apply strict scrutiny.
2. The court errs in finding that McConnell, parts I or II, overrules Watchtower and ACLF and McIntyre. The court confuses rules about financial reporting with rules about speech.
3 The court errs in its reliance on Terry, Gable, Public Citizen and Seymour in that these cases were erroneous and were reversed by Watchtower. The court errs in its claim that McIntyre was only about referenda.
4. The court erred in finding that a statute limited to candidates would present no serious constitutional problems, and certifying a single question to the state court, where either version would be void under McIntyre.
5. The court erred in holding that official immunity invalidates damage claims, and in failing to explain how McConnell is retroactive to 1998.
Conclusion: The censorship of speech authorized by the court’s opinion is “a far cry” from what is authorized by McConnell. If this court is going to stake out such an extreme position, it could benefit from revisiting and polishing its opinion, and do justice by revisiting the prevailing party issue.
A. 1. The court errs in awarding costs solely against plaintiffs, where plaintiffs have prevailed on a minor but determinative point, and are entitled as prevailing parties to costs and fees, offset by costs as to those matters on which the government is the prevailing party.
This is a case in which Brian Majors hand-made a few signs and had to sue to find out that, yes, he had a legal right to do so. It is a reasonable inference from the pleadings that he made fewer than 100 substantially similar signs. Footnote 11 of the Indiana Supreme Court opinion, 792 NE2d 27-28, construes the statute to avoid an arbitrary and vague result, one which would fail even rational basis review. This court ratifies and relies on that narrowing construction in its analysis of the statute as amended and construed. The narrowing construction is a change in the legal relation between the parties. Farrar v. Hobby. Majors doesn’t go to prison after all. The 100 copies exception would have protected McIntyre, Gilleo, Grace, or Stewart.
To this extent, Majors is a prevailing party, and he moves for his costs and fees, offset by comparable costs (but not fees) by the state. Having won what he came for, if not on the grounds he had hoped, he is entitled to his fees, perhaps reduced in accordance with the limited degree of victory. If he is denied his fees, not only does this do injustice to Majors, it defeats the will of congress in enacting 42 USC 1988. This statute sought to use fee-shifting as a way of self-policing civil rights via private attorneys general. Here, there is little contention that the statute was constitutional as first enacted, or could ever have been applied to Majors.
2. The court errs in dismissing the case without reaching the issue of the brochure,
thereby denying litigants due process, because the brochure, in both its present and original versions, fails to include the 100 copies exception. The court errs in not addressing other remaining issues, such as the commerce clause claim or the mens rea claim.
B The opinion fails to prove the statute is constitutional.
1. The court errs in failing to apply strict scrutiny.
McConnell, like Valeo, used a deferential standard of review, in evaluating reporting of money. Money in campaigns is a form of expressive conduct, reviewed under an O’Brien
test. McIntyre, like this case, is a pure speech case. “Laws prohibiting anonymous communications at least to some extent burden speech and raise First Amendment concerns. If the speech is political, as it undoubtedly is in an election, it enjoys the highest level of protection, and any restriction of that speech requires a compelling governmental interest.” Majors v Abell (Ind. 2003). Because the disclaimer statute burdens core political speech, it is subject to "strict scrutiny." McIntyre, 514 U.S 347, Id..
In McIntyre, the court reversed the Supreme Court of Ohio for failing to apply strict scrutiny. In ACLF, the court relied on McIntyre for strict scrutiny of anonymous election speech, and carefully distinguished between disclaimers and reporting. Justice Thomas, concurring, would look to Norman v. Reed. In Watchtower, the court reversed the Sixth Circuit’s limited view of McIntyre first expressed in Terry, ratified in Gable. Public Citizen did not involve adversarial parties in the usual sense; Public Citizen, a Nader spin-off, works assiduously to stamp out campaign speech, but in that case was hoist on its own petard.
2. The court errs in finding that McConnell, parts I or II, overrules Watchtower and ACLF and McIntyre. The court confuses rules about reporting with rules about speech.
The terms are confusing; disclaimers don’t disclaim and reporting is usually called disclosure. Since courts routinely uphold reporting and strike down disclaimers, it is essential to not confuse or equate the two categories. Disclaimers are like apples (A). Reporting is like bananas (B). Disclosure is like fruit, (A through Z.)
Talley, McIntyre, ACLF and Watchtower state the rules about apples, while McConnell and Valeo state the rules about bananas, not about all fruit.
McIntyre says that it is a disclaimer case about apples, and therefore is not a reporting case about bananas like Valeo (or McConnell). McConnell, note 88, says that it is a reporting case about bananas and is not a disclaimer case. The panel’s construction of McConnell as overruling McIntyre improperly conflicts with what both cases said they were doing.
3. The court errs in its reliance, if any, on Terry, Gable, Public Citizen, and Seymour, in that these cases were erroneous and were reversed by Watchtower. In citing Terry twice, and in following Terry’s logic, the court misleads the reader in thinking that Terry is good law. Terry claims that McIntyre is not about candidate elections. This is fatal error. McIntyre decided whether there is an elections exception to Talley’s rule that anonymous speech is protected speech. McIntyre found an Ohio statute facially invalid which required candidate disclaimers. When Terry says McIntyre is not about candidate elections, it is wrong. This court’s opinion echoes that error. That myth was dispelled by Stewart v Taylor and the 1999 Griset v California decision. While those cases are not controlling, ACLF and Watchtower are. ACLF was about a referendum, but relied on McIntyre’s holding about elections generally. If the court is citing these cases only to show the continued existence of a minority rule, it should make that point plainer.
The repeated statements in the court’s opinion that McIntyre is not about candidate elections, is sufficient reason to rehear the case or revise the opinion.
Those cases point out that the statute struck down in McIntyre
applied to issue referenda as well as to candidate elections [emph.added] and that only issue referenda were before the
Court, a difference on which McIntyre had relied to distinguish
Buckley v. Valeo, 424 U.S.1, 80 (1976) (per curiam),
which had upheld a provision of the federal campaign finance law
that was similar to these state statutes.
Remember that McIntyre had only been about issue
referenda, where there are no candidates and so, it might be
thought, “campaign literature” is more likely to consist of
“genuine issue ads.” Thus the Court may have so far
narrowed McIntyre (one of the dissenting opinions said the
Court had overruled it, 124 S. Ct. at 735-36) that it no longer
overlaps the Indiana statute. Majors, Slip.op.8.

This is untenable because candidate elections were before the court, which ruled on the statute per se, rather than on Mrs. McIntyre’s as-applied circumstances. Either McConnell overruled McIntyre or it did not, but Indiana’s statute falls squarely under McIntyre.
4. The court erred in finding that a statute limited to candidates would present no serious constitutional problems, and certifying a single question to the state court, where either version would be void under McIntyre. Doing so suggests that McConnell may not be the sole real reason the court is reluctant to apply McIntyre.
5. The court erred in holding that official immunity invalidates damage claims, and in failing to explain how McConnell is retroactive to 1998. Vanderburgh County has no such official immunity, Monell, and was named as a party by naming the county officials in the official as well as personal capacity. Plaintiffs allege that before the statute was amended, it violated their clearly established rights under McIntyre and Taylor. This issue is not resolved by a declaration that the current statute, as amended and construed, is ok.
If the court is right that McConnell saves the statute, the decision still fails to do justice to Brian Majors, who has prevailed on a minor point but has been taxed costs and so far denied fees, and fails to resolve sundry remaining questions about what the statute means and what Metzger and Martin must do to comply with it.
In its analysis of the statute, the failure to set out a standard of review, the apparent reliance on overruled cases, the contention that McIntyre is not about candidate elections, the confusion of apples with bananas, and the court’s own expressions of doubt, make the case worth a second opinion. If the court is right about McConnell, it can write a better opinion.
At 2077 words and 9 pages, I certify this filing meets the page limits per local rule.
Respectfully submitted

Sunday, March 28, 2004

, Circuit Judge, dubitante. Four decisions of
the Supreme Court hold or strongly imply that the ability to
speak anonymously—and thus with less concern for re-
percussions—is part of the “freedom of speech” protected
by the first amendment against governmental interference.
Talley v. California, 362 U.S. 60 (1960); McIntyre v. Ohio
Elections Commission, 514 U.S. 334 (1995); Buckley v. American
Constitutional Law Foundation, 525 U.S. 182, 199-200 (1999);
Watchtower Bible & Tract Society of New York, Inc. v. Stratton,
536 U.S. 150, 166-67 (2002). See Jonathan Turley, Registering
Publius: The Supreme Court and the Right to Anonymity, 2001-
02 Cato Sup. Ct. Rev. 57. Although the scope of protected
speech has been held to differ across subject matter, the
ability to denounce public officials by name and call for
their ouster is the core of the Constitution’s protection. See
New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
There have been times and places in the United States
when opposing elected political officials risked both wealth
and health. Decisions such as O’Hare Truck Service, Inc. v.
Northlake, 518 U.S. 712 (1996), and Rutan v. Republican Party
of Illinois, 497 U.S. 62 (1990), hold that government is not
entitled to retaliate, but what people do in fact often differs
from what they should do, and litigation after the fact is no
cure-all. It is no cure at all for retaliation by private actors,
who are free to penalize those whose political views they do
not accept, provided only that they do not cross the line into
violence—and that line has not always been observed; think
of persons whose candidates were the “wrong” race.
Anonymity thus may be especially valuable when opposing
entrenched actors. Disclosure also makes it easier to see who
has not done his bit for the incumbents, so that arms may be
twisted and pockets tapped. Labor law deems it improper
for employers to nose out union adherents’ names; judges
and members of the NRLB perceive that knowledge may
facilitate retaliation and that fear of this outcome will stifle

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No. 02-2204
speech. Yet although union organizers may operate in
secret, and everyone may vote in secret (our adoption of the
Australian ballot came from awareness that disclosure could
affect political support), political advocates must disclose
their identities. Today the court holds that a state may
require persons engaged in core political speech to identify
themselves so that the officeholders and their allies can
pinpoint their critics. How can this be?
According to my colleagues, the answer lies in the fact
that McConnell v. Federal Election Commission, 124 S. Ct. 619,
689-94 (2003), rejected a constitutional challenge to §201
of the Bipartisan Campaign Reform Act of 2002, which
amended §304 of the Federal Election Campaign Act, 2
U.S.C. §434. Section 304 as amended requires any person
who makes disbursements exceeding $10,000 in any year for
speech in federal campaigns, or who donates $1,000 or more
to another person or group engaged in advocacy, to disclose
his identity to the Federal Election Commission. Indiana’s
law differs—it starts from a lower threshold (100 sheets of
paper) and requires disclosure to the public in the election-
eering literature rather than to an agency, see Ind. Code §3-
9-3-2.5—but once it is settled that speakers must reveal their
identities directly to the political establishment, five Justices
may think that everything else is mere detail.
Still, the Justices’ failure to discuss McIntyre, or even to
cite Talley, American Constitutional Law Foundation, or
Watchtower, makes it impossible for courts at our level to
make an informed decision—for the Supreme Court has not
told us what principle to apply. Does McConnell apply to all
electioneering? All speakers? To primary communications
(as opposed to notices sent to agencies)? The Supreme Court
wrote that §304 is valid because it is (in the view of five
Justices) a wise balance among competing interests. Yet the
function of the first amendment is to put the regulation of

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No. 02-2204
speech off limits to government even if regulation is deemed
wise. See American Booksellers Ass’n v. Hudnut, 771 F.2d 323
(7th Cir. 1985), affirmed, 475 U.S. 1001 (1986). See also John
Hart Ely, Flag Desecration: A Case Study in the Roles of
Categorization and Balancing in First Amendment Analysis, 88
Harv. L. Rev. 1482 (1975); Geoffrey R. Stone, Restrictions on
Speech Because of its Content: The Strange Case of Sub-
ject-Matter Restrictions, 46 U. Chi. L. Rev. 81 (1978). For the
judiciary to say that a law is valid to the extent that it is
good is to operate as a council of revision and to deny the
power of a written constitution to constrain contemporary
legislation supported by the social class from which judges
are drawn. And when, as in McConnell, the judgment is
supported by a one-vote margin, any Justice’s conclusion
that a particular extension is unwise will reverse the
constitutional outcome. How can legislators or the judges of
other courts determine what is apt to tip the balance?
Footnote 88 to the lead opinion in McConnell, 124 S. Ct.
at 696-97 n.88, hints that one or more members of the
majority may believe that the validity of the federal statute
depends on its entire complement of rules. This footnote—
the only place in which a majority opinion discusses
McIntyre (though not when dealing with §304!)—says that
“BCRA’s fidelity to those imperatives” sets it apart from the
law held invalid in McIntyre. This treats the statute as a unit.
It is difficult to say that the Indiana legislation at issue today
displays “fidelity” to the “imperatives” of curtailing public
corruption while allowing room for expression. As far as I
can see, it has nothing to do with the risk of subtle bribery,
and it attaches no weight to the risks borne by supporters of
unpopular candidates. The majority in McConnell empha-
sized that the disclosure to the agency did not include the
content of the advertisement. 124 S. Ct. at 693-94. In Indiana
the disclosure is affixed to the speech; the association is
unavoidable; does this make a difference? My colleagues
think not; I am not so sure.

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No. 02-2204
Doubtless “a speaker’s credibility often depends crucially
on who he is.” Slip op. 6. But how does this support oblig-
atory disclosure? Speakers who prefer concealment in order
to reduce their personal risks, and who accept the discount
that readers attach to advocacy from unnamed sources, do
not impose burdens on strangers. What then is the justifica-
tion for regulation? “People are intelligent enough to
evaluate the source of an anonymous writing. They can see
it is anonymous. They know it is anonymous. They can
evaluate its anonymity along with its message, as long as
they are permitted, as they must be, to read that message.”
McIntyre, 514 U.S. at 348 n.11. Arguments that speech may
be regulated to protect the audience from misunderstanding
should fare poorly and outside of electioneering have fared
poorly. See, e.g., Virginia State Board of Pharmacy v. Virginia
Citizens Consumer Council, Inc., 425 U.S. 748, 769-70 (1975).
Anyway, we must consider the possibility that anonymity
promotes a focus on the strength of the argument rather
than the identity of the speaker; this is a reason why
Madison, Hamilton, and Jay chose to publish The Federalist
anonymously. Instead of having to persuade New Yorkers
that his roots in Virginia should be overlooked, Madison
could present the arguments and let the reader evaluate
them on merit.
Trade associations and other interest groups will have
little difficulty complying with Indiana’s law. Factions that
hope to secure political favors enjoy legal counsel who spe-
cialize in election matters. Professionals in the field not only
will assure compliance but also will exploit the inevitable
loopholes. The identity of these interest groups is no
mystery; many operate from marble-clad buildings and
deploy full-time lobbyists. Statutes such as Indiana’s have
their real bite when flushing small groups, political clubs, or
solitary speakers into the limelight, or reducing them
to silence. Indiana’s statute, which requires disclosure

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No. 02-2204
from the first dollar of speech, bears especially heavily on
political outsiders. Indiana has essentially forbidden all
spontaneous political speech, perhaps all electioneering by
individuals and small groups. Before favoring or opposing
any candidate, a would-be speaker must navigate a thicket
of rules.
These laws and regulations are written in language that
only specialists can fathom. For example, Indiana requires
a “disclaimer” of identity; yet, as my colleagues observe, the
state uses this word to mean the opposite of its normal
connotation. In everyday language, a disclaimer is a re-
pudiation or denial of responsibility. In Indiana’s election
code, however, that word denotes a statement accepting re-
sponsibility or authorship—a proclaimer (or just a “dis-
closure”) rather than a disclaimer. Getting through this kind
of doubletalk requires help. Even a lawyer might not be
enough: answering the question that we had certified, the
Supreme Court of Indiana held that both the state’s execu-
tive branch and the federal district judge had misunder-
stood the law’s coverage. Majors v. Abell, 792 N.E.2d 22 (Ind.
2003). (George Orwell, who coined the term “Newspeak”
for evasive governmental expression, used a pseudonym to
conceal his own identity. Anonymity did not reduce the
power of his work or justify mandatory disclosure. Orwell
might call Indiana’s use of language doubleplusungood.)
Often the Supreme Court says that even a small fee or tax,
or a short delay in obtaining a free license (as in Watch-
tower), is an unacceptable burden on speech. Cf. United
States v. Playboy Entertainment Group, Inc., 529 U.S. 803
(2000). Yet in McConnell the Court was sanguine about the
delays, and non-trivial legal expenses, entailed in comply-
ing with complex rules for campaign speech. These outlays
come on top of the costs that must be borne by persons who
back the wrong horse and incur the enmity of elected

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No. 02-2204
officials—for the winners now are entitled to learn all of
their vocal opponents’ identities. Maybe these effects can be
justified with respect to electioneering at the national level
by deep-pocket interest groups—though I think that the
Justices have been too ready to equate political support to
bribery, see Ronald A. Cass, Money, Power, and Politics:
Governance Models and Campaign Finance Regulation, 6 Sup.
Ct. Econ. Rev. 1 (1998)—but for local elections the equation
is impossible to sustain.
Indiana does not contend that requiring disclosure by
plaintiffs Carol Antun, Perry Metzger, and Bruce Martin—
who want to use their own resources to speak on behalf of
candidates of the Libertarian Party (and oppose incumbents,
for libertarians do not occupy any major office in Indi-
ana)—is essential to avert a material risk of underground
favor-trading or bribery. Nor does the state try to justify
mandatory disclosure by any truly independent speaker.
Instead Indiana contends that it is entitled to regulate all
electioneering by every speaker in order to avoid drawing
lines. Given McConnell, I cannot be confident that my
colleagues are wrong in thinking that five Justices will go
along. But I also do not understand how that position can be
reconciled with established principles of constitutional law.
A true Copy:

majors v. abell - posner 3-15-04 - majority opinion

An Indiana statute, challenged in this suit as an infringement of free speech, requires that political advertising that “expressly advocat[es] the election or defeat of a clearly identified candidate” contain “a disclaimer that appears
and is presented in a clear and
conspicuous manner to give the reader or observer adequate
notice of the identity of persons who paid for . . . the
communication,” Ind. Code §§ 3-9-3-2.5(b)(1), (d), and
makes violation a misdemeanor. § 3-14-1-3. “Disclaimer” is

Page 2
No. 02-2204
a misnomer; the correct word would be “disclosure”—but
as we’ll see, that word has been appropriated to describe a
reporting requirement.
The district court dismissed the suit on jurisdictional
grounds that we concluded were unsound, 317 F.3d 719,
721-23 (7th Cir. 2003), but we decided that we should not
attempt to decide the merits of the plaintiffs’ constitutional
challenge until we obtained an authoritative interpretation
of the statute from the Indiana Supreme Court. The state
had argued that despite using the word “person” to denote
who was subject to it the statute was limited to candidates,
campaign committees, and the committee’s agents. We said
that if the statute was as narrow as the state claimed it
was—a claim no court of Indiana had passed on—it was
a straightforward antifraud statute unlikely to present
serious constitutional problems. For on the state’s interpre-
tation, the statute merely forbids the candidate and his or-
ganization to create the impression that independent voices
support him or oppose his opponent, when in fact the voices
are those of the candidate himself, playing ventriloquist. Cf.
McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 351, 354
(1995). But if instead, as the plaintiffs argued, the statute
reached all persons, then it was a blanket prohibition of
anonymous campaign-related speech (unless the speech is
costless, for it is only the identity of someone who pays or
contributes to paying, either directly or by soliciting pay-
ment, for political advertising that is required to be dis-
closed), and thus might discourage political speech by
exposing persons who want to express themselves for or
against a particular candidate to the risk of retaliation, a risk
from which anonymity would shield them.
Although the McIntyre decision held that government may
not forbid the distribution of anonymous campaign litera-
ture, id. at 357; see also Talley v. California, 362 U.S. 60, 64-65

Page 3
No. 02-2204
(1960), several subsequent decisions upheld statutes similar
to the Indiana statute interpreted to reach all persons.
Federal Election Comm’n v. Public Citizen, 268 F.3d 1283, 1287-
91 (11th Cir. 2001) (per curiam); Gable v. Patton, 142 F.3d 940,
944-45 (6th Cir. 1998); Kentucky Right to Life, Inc. v. Terry, 108
F.3d 637, 646-48 (6th Cir. 1997). Those cases point out that
the statute struck down in McIntyre applied to issue refer-
enda as well as to candidate elections and that only issue
referenda were before the Court, a difference on which
McIntyre had relied to distinguish Buckley v. Valeo, 424 U.S.
1, 80 (1976) (per curiam), which had upheld a provision of
the federal campaign finance law that was similar to these
state statutes. “The Federal Election Campaign Act of 1971,
at issue in Buckley, regulates only candidate elections, not
referenda or other issue-based ballot measures; and we
construed ‘independent expenditures’ [in Buckley] to mean
only those expenditures that ‘expressly advocate the
election or defeat of a clearly identified candidate.’ ”
McIntyre v. Ohio Elections Comm’n, supra, 514 U.S. at 356. The
opinions that distinguish McIntyre also point out that Ohio
had defended its statute only on the basis that knowing the
author of a document helps one to evaluate its truthfulness,
whereas a weightier ground is that “disclosure protects the
integrity of the electoral process by ensuring that the words
of an independent group are not mistakenly understood as
having come from the mouth of a candidate.” Federal
Election Comm’n v. Public Citizen, supra, 268 F.3d at 1288; see
also Buckley v. Valeo, supra, 424 U.S. at 66-67; Gable v. Patton,
supra, 142 F.3d at 944-45; Kentucky Right to Life, Inc. v. Terry,
supra, 108 F.3d at 646-48; Seymour v. Elections Enforcement
Comm’n, 762 A.2d 880, 886-87 (Conn. 2000). It also deters
corruption by identifying large contributors who may be
seeking a quid pro quo and—a related point—it provides
information helpful to the enforcement of the provisions of
election campaign law, both also being purposes that had

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No. 02-2204
been emphasized in Buckley. 424 U.S. at 66-68. See generally
Malcolm A. Heinicke, Note, “A Political Reformer’s Guide
to McIntyre and Source Disclosure Laws for Political
Advertising,” 8 Stan. L. & Pub. Policy Rev. 133 (1997).
Although the Indiana statute is inapplicable to issue
referenda (the only type of political campaign that McIntyre
had considered), we realized when we first heard the appeal
in this case that if the Indiana statute reached political
advertising wholly independent of the candidate or his
campaign organization, a serious constitutional question
would be created. Interest groups contest issue referenda
just as candidates and parties contest elections of officials,
and so the public interest in knowing the source of an
anonymous contribution to the debate is as great in the one
case as in the other, though it may be small in both if the
contributor is an obscure individual. The Court in McIntyre
said that “insofar as the interest in informing the electorate
means nothing more than the provision of additional
information that may either buttress or undermine the
argument in a document, we think the identity of the
speaker is no different from other components of the docu-
ment’s content that the author is free to include or exclude,”
and added that in the case of “a private citizen who is not
known to the recipient, the name and address of the author
add little, if anything, to the reader’s ability to evaluate the
document’s message.” 514 U.S. at 348-49. Yet this too is an
observation that seems apt to campaigns to elect officials, as
well as to issue referenda, though perhaps less so than in the
latter case.
Our doubts about the constitutionality of the Indiana
statute if interpreted more broadly than the state thought it
should be interpreted impelled us to certify to the Indiana
Supreme Court, pursuant to 7th Cir. R. 52 and Ind. Code §
33-2-4-1, the following question:

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No. 02-2204
Is the term “persons” in Ind. Code §§ 3-9-3-2.5(b)(1), (d)
limited to candidates, authorized political committees
or subcommittees of candidates, and the agents of such
committees or subcommittees, or does it have a broader
scope, and, if so, how much broader?
317 F.3d at 725. The Indiana Supreme Court accepted the
certification and ruled that the statute was not so limited;
that “person” means “person”—any person. It thus rejected
the state’s narrowing construction. 792 N.E.2d 22 (Ind.
The litigation in our court then resumed. With the major
constitutional challenge to the Bipartisan Campaign Reform
Act (popularly known as the McCain-Feingold Act) pending
in the Supreme Court, we decided to hold off on further
consideration of the appeal until the case was decided,
because the Act contains a provision rather similar to the
Indiana statute challenged in this case. When the Supreme
Court rendered its decision, McConnell v. Federal Election
Comm’n, 124 S. Ct. 619 (2003), we directed the parties to
submit memoranda discussing the bearing of that decision
on the appeal; and they have now done so.
The constitutional issue now ripe for resolution is difficult
because it entails a balancing of imponderables. On the one
hand, forbidding anonymous political advertising reduces
the amount of political advertising because some would-be
advertisers are unwilling to reveal their identity. On the
other hand, the quality of the political advertising that
continues to be produced and disseminated under such a
regime is enhanced because the advertising contains ad-
ditional information useful to the consumer. The avidity
with which candidates for public office seek endorsements
is evidence (as if any were needed) that the identity of a
candidate’s supporters—and opponents—is information
that the voting public values highly. In areas of inquiry

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No. 02-2204
where logic or exact observation is unavailing, a speaker’s
credibility often depends crucially on who he is. As Aris-
totle said, “persuasion is achieved by the speaker’s personal
character when the speech is so spoken as to make us think
him credible. We believe good men more fully and more
readily than others: this is true generally whatever the
question is, and absolutely true where exact certainty is
impossible and opinions are divided.” Aristotle, Rhetoric, in
2 The Complete Works of Aristotle 2152, 2155 (Jonathan Barnes
ed. 1984). “Where exact certainty is impossible and opinions
are divided” is a pretty good description of politics.
Can we get help in answering the thorny question pre-
sented by this appeal from the case law, and in particular
from the Supreme Court’s recent and very lengthy opinions
in the McConnell case? The provision of the Bipartisan
Campaign Reform Act that is analogous to the Indiana
statute regulates “electioneering communications,” which
are advertisements broadcast within 60 days of a general
election or 30 days of a primary that refer to a candidate for
federal office. 2 U.S.C. § 434(f)(3)(A)(i). Individuals who
spend more than $10,000 producing such communications,
or contribute at least $1,000 to an organization that produces
them, must report (in the case of the contributions it is the
recipient who must report) their identities to the Federal
Election Commission. 2 U.S.C. §§ 434(f)(1)-(2). Without
attempting to narrow the class of covered “individuals,” the
Supreme Court upheld this provision on the ground that
it served “important state interests . . . [in] providing the
electorate with information, deterring actual corruption and
avoiding any appearance thereof, and gathering the data
necessary to enforce more substantive electioneering re-
strictions.” 124 S. Ct. at 690. Like the Indiana statute, the
provision of the Bipartisan Campaign Reform Act that the
Court upheld requires identifying any person who contrib-
utes to the making of the ad, even if the person is not a can-
didate or part of the candidate’s campaign staff.

Page 7
No. 02-2204
True, what is required is disclosure to an agency rather
than disclosure in the political ad itself, but, as is apparent
from the Court’s reference to “providing the electorate with
information,” the identity of the contributor is available
to the public rather than secreted by the FEC. 2 U.S.C.
§§ 434(a)(11)-(12), (d)(2). That may not seem a big difference
from the standpoint of protecting the advertiser from
retaliation, but the Court had earlier indicated that having
to identify itself to the entire audience for the ad has as a
practical matter a greater inhibiting effect than just a re-
porting requirement because it broadcasts the advertiser’s
name to the entire electoral community. Buckley v. American
Constitutional Law Foundation, Inc., 525 U.S. 182, 197-200
(1999). The reaction may not be “retaliation” in any strong
sense, but there is a weak sense as well; there may be a
degree of social ostracism, some dirty looks, a few snide
comments, and such, and we and other courts have long
recognized that mild forms of retaliation can be effective in
deterring the exercise of free speech. Coady v. Steil, 187 F.3d
727, 734-35 (7th Cir. 1999); Pieczynski v. Duffy, 875 F.2d 1331,
1335-36 (7th Cir. 1989); Bart v. Telford, 677 F.2d 622 (7th Cir.
1982); Keenan v. Tejeda, 290 F.3d 252, 259-60 (5th Cir. 2002);
Suppan v. Dadonna, 203 F.3d 228, 234-35 (3d Cir. 2000); Allen
v. Scribner, 812 F.2d 426, 434 n. 17 (9th Cir. 1987).
The Court in McIntyre thought “the intrusion” on freedom
of political advocacy brought about by a reporting re-
quirement was “a far cry from compelled self-identification
on all election-related writings,” 514 U.S. at 355, which is
what we have here—and what the Bipartisan Campaign
Reform Act does not have; it does not even require identify-
ing the specific ads financed by the reporting contributor.
McConnell v. Federal Election Comm’n, supra, 124 S. Ct. at 693-
94; see 2 U.S.C. §§ 434(f)(1)-(2). But of course the very thing
that makes reporting less inhibiting than notice in the ad
itself—fewer people are likely to see the report than the

Page 8
No. 02-2204
notice—makes reporting a less effective method of convey-
ing information that by hypothesis the voting public values.
It’s as if cigarette companies, instead of having to disclose
the hazards of smoking in their ads, had only to file a
disclosure statement with the Food and Drug
The only reference to McIntyre by the majority in
McConnell appears in a footnote that distinguishes “genuine
issue ads” from “regulation of campaign speech” and
assumes that restrictions constitutionally applicable to the
latter, such as the restrictions both in the Bipartisan
Campaign Reform Act and in the Indiana statute, might not
be applicable to the former; McIntyre is cited noncommit-
tally as having invalidated a “statute banning the distribu-
tion of anonymous campaign literature.” 124 S. Ct. at 696 n.
88. Remember that McIntyre had only been about issue
referenda, where there are no candidates and so, it might be
thought, “campaign literature” is more likely to consist of
“genuine issue ads.” Thus the Court may have so far nar-
rowed McIntyre (one of the dissenting opinions said the
Court had overruled it, 124 S. Ct. at 735-36) that it no longer
overlaps the Indiana statute.
An alternative interpretation, however, is that because the
Bipartisan Campaign Reform Act and therefore the
McConnell decision are about campaign financing, the
decision is inapplicable to people who pay for political ads
themselves, since they are not engaged in fund-raising. On
that reading, McIntyre, which was such a case, is unaffected
by McConnell, and so the Indiana statute, which is also
about requiring self-financers to identity themselves, is con-
demned by McIntyre’s holding. But campaign financing and
fund-raising are not synonyms, as the argument assumes;
and the Bipartisan Campaign Reform Act is not just about
fund-raising—the relevant provision that the Court upheld

Page 9
No. 02-2204
applies equally to self-financed and other-financed ads. The
disclosure statement must be filed by “every person who
makes a disbursement for the direct costs of producing and
airing electioneering communications in an aggregate
amount in excess of $10,000 during any calendar year,”
whether he produces the ad himself or gives the money to
someone else to produce it, 2 U.S.C. § 434(f)(1); and sections
434(a)(6)(B) and (E) expressly impose a requirement of
reporting campaign disbursements by a candidate from his
personal funds. And the first governmental interest that the
Court recited in upholding the provision—that it would
provide the electorate with information—is applicable to
self-financed ads. An ad might seem disinterested, but if the
voting public knew who had paid for it—maybe it was an
interest group that the candidate was known to have done
favors for—the existence of an interest might be revealed.
To draw the constitutional line between self- and other-
financed campaign ads would be to deliver a gratuitous
benefit to wealthy candidates and wealthy supporters of
But what must give us considerable pause, in light of the
distinction the Supreme Court has drawn between “disclo-
sure” (reporting one’s identity to a public agency) and
“disclaimer” (placing that identity in the ad itself), is the fact
that the Indiana statute requires the latter and not merely
the former. Buckley v. American Constitutional Law Founda-
tion, Inc., supra, 525 U.S. at 197-200, invalidated a state law
that required people who circulated petitions for issue
referenda (actually initiatives, but the only and irrelevant
difference is that a referendum asks the people to vote on a
law proposed by the legislature, while in an initiative the
proposal has not been before the legislature) to wear
identification badges. But the requirement was inapplicable
to elections of candidates. Federal Election Comm’n v. Public
Citizen, supra, 268 F.3d at 1287-91, interpreting a provision

Page 10
No. 02-2204
of the previous federal campaign finance law, upheld a
requirement of a disclaimer in a candidate election. But all
that had to be disclaimed (for once, the word was apt) was
that the advertiser was independent of the candidate—yet
the court assumed that a separate requirement, that the
identity of the advertiser be disclosed in the ad, was also
valid. Id. at 1290. There is a similar assumption in
McConnell. See 124 S. Ct. at 710. A statute quite like the
Indiana statute was invalidated in Citizens for Responsible
Government State Political Action Comm. v. Davidson, 236 F.3d
1174, 1198-1200 and n. 10 (10th Cir. 2000)—and upheld in
Gable v. Patton, supra, 142 F.3d at 944-45, and Kentucky Right
to Life, Inc. v. Terry, supra, 108 F.3d at 646-48. Several cases,
signally McIntyre itself, expressly or implicitly contrast the
fragility of the small independent participant in political
campaigns with large corporations or other organizations.
McIntyre v. Ohio Elections Comm’n, supra, 514 U.S. at 348-49,
351-54; Buckley v. American Constitutional Law Foundation,
Inc., supra, 525 U.S. at 197-200; Citizens Against Rent Con-
trol/Coalition for Fair Housing v. City of Berkeley, 454 U.S. 290,
292-94 and n. 4, 298-99, 308 n. 4 (1981); Gable v. Patton, supra,
142 F.3d at 944-45; Doe v. Mortham, 708 So. 2d 929, 934-
35 (Fla. 1998); cf. First Nat’l Bank of Boston v. Bellotti, 435 U.S.
765, 777-78 and n. 13, 788-90, 792 n. 32 (1978); Seymour v.
Elections Enforcement Comm’n, supra, 762 A.2d at 888.
The Indiana Supreme Court, recognizing this last point,
did a bit of judicial legerdemain, expanding the statutory
exemption for mailings of up to 100 pieces of “mail” that are
“substantially similar,” Ind. Code § 3-9-3-2.5(a)(9), “to
include any form of delivery of any written material, in-
cluding personal delivery or use of some service other than
use of the United States Postal Service,” with the result that
“Indiana’s law permits some individual pamphleteering
and applies only to candidate elections.” Majors v. Abell,
supra, 792 N.E.2d at 27 n. 11, 28. The statutory exemption as
expanded by judicial interpretation protects the most vul-

Page 11
No. 02-2204
nerable independent contributors to political advocacy. And
as we said earlier, to require only the reporting of the
advertiser’s name to a public agency, while it would as a
practical matter allay some of the anxieties of potential
advertisers, would at the same time reduce the amount of
information possessed by voters. Both sides of the First
Amendment balance would be depressed. We cannot say
that the net effect of invalidating the Indiana statute would
be to promote political speech.
As an original matter it could be objected that speech and
the press would no longer be free if the government could
insist that every speaker and every writer add to his mes-
sage information that the government deems useful to the
intended audience for the message, and that it is arbitrary
for the government to single out the identity of the writer or
speaker and decree that that information, though no other
that potential voters might value as much or more, must be
disclosed. But the Supreme Court crossed that Rubicon in
McConnell. Reluctant, without clearer guidance from the
Court, to interfere with state experimentation in the baffling
and conflicted field of campaign finance law without
guidance from authoritative precedent, we hold that the
Indiana statute is constitutional.
The decision of the district court is modified to place the
dismissal of the suit on the merits, and as so modified is

Friday, March 19, 2004

Act one, scene one.
The curtain rises.
The curtain rises on a courtroom setting on the 27th floor of a federal office buillding in downtown chicago.
A bailiff announces, United States Court of Appeals for the Seventh Circuit now in session, the honorable Dick Imposner Presiding.
Imposner stands, leans on, a lecturn, stage left.
Behind him, mute, not moot, is Judge Bowered.
Stage right, seated, casually, miked and wired, is Frank Lee Easterbunny.
Bailiff: case # 02-2204, Brian Majors et al. v. Marsha Abell et al. set for handdown this ides of march.

Imposner: An Indiana statute, challenged in this suit as an infringement of free speech, requires that political advertising that expressly advocates the election or defeat of a clearliy identified candidate contain a disclaimer that appears and is pressented in a clear and conspicuous manner to give the reader or observer adequate notice of the persons who paid for the communication. Ind. Code 2-9-3-2.5(b)(1)(d) and makes violation a misdemeanor.

Easterbunny cuts in:
Imposner: Gezeutheit.
Four decision of the Supreme Court hold or strongly imply that the ability to speak anonymously - and thus with less fear for th repercussions - is part of the freedom of speech protected by the first amendment against government interference.
talley mcintyre aclf and watchtower.

Wednesday, March 17, 2004

Up my alley
Will Baude at 11:19 AM
Libertarians, free speech, Richard Posner, Frank Easterbrook, Indiana, and random legal trivia, all in the same blog post. I wish I had something to add to this, but I don't. Perhaps I will once I read the opinion for myself.
The basic argument between Posner and Easterbrook (dubitante) seems to be whether the 7th Circuit's job is to follow the principles of Constitutional Law laid down as they best understand them, or to best predict what 5 Supreme Court Justices would say were they to handle the case.
more fisking majors

- fails to reach and decide brochure issue

- to do: separate motions for rehearing by panel.
- thrust:
- if correct, the opinion denies justice to litigants.

Plaintiff has shown his rights were violated by the policy and the brochure. The indiana supreme court narrowed the statute in such a way that major's signs are now legal and protected speech. Any yet you would dismiss his case.
The brochure, contradicting the Indiana Supreme court's holding, remains online. The brochure continues to be used as a policy statement by local officials in confiscating fewer than 100 copies of a sign. By dismissing the case without ruling on the brochure, you deny plaintiff due process. Perhaps this was an unintentional oversight by the court. Perhaps it is deliberate attempt to deter plaintiffs from bringing meritorious cases. We don't know.

We ask that the court do the following: Issue a supplemental ruling deciding the issue of whether to enjoin the brochure, and deciding whether Majors is a prevailing party based on his
having obtained a narrowing construction that exactly covers his situation.
While it does so, the court might take the opportunity to correct some of the plain errors in the opinion, and even revise misleading passages.
Most glaring is the contention that McIntyre is not a case about candidate elections. It is true that Terry and Gable v. Patton make this claim, but it also true that those cases were erroneous and were reversed by Watchtower.
McIntyre is very much about candidate elections. An ohio statute, requiring candidate literature to have disclaimers, was found facially unconstitutional.
The issue in McIntyre was whether there is something about election speech that takes it out of the general rule of Talley that the government may not compell disclaimers on political speech.
The holding in McIntyre was that election speech, including candidate speech, is protected. There is no mention of two prior cases that have held that McIntyre is about candidate elections, and invalidated Indiana's disclaimer rules.
Is Ogden v Marendt still good law after this case? We aren't told.
A more general problem with the court's opinion is that it fails to establish a standard of review. Perhaps this is asking more from the court than it will be wiling to give.

First, do a motion seeking costs and fees? No not ready.

Tuesday, March 16, 2004

10. It was a straightforward anti-fraud statute unlikely to present serious constitutional problems.
This accurately cites the prior opinon's error.
9. Terry, Gable, FEC v. Public Citizen, Seymour, were overruled by Watchtower.
8. "and that only issue referenda were before the court"
McInntyre was a facial challenge to a candidate disclaimer statute, so it wrong to say only issue referenda were before the court.
7 The Heineke article is a game plan for resisting McIntyre and violating free speech rights.
6. Fails to mention Stewart v.Taylor, the main case on this point.
5. "quality of political advertizing is enhanced" - not if self-censorship chills such expression,to to the point of preventing it, but making it tamer, more moderate, avoiding controversy.
4. "Remember that McIntyre had only been about issue referenda"
- false.
all i havefor now.

to do: list errors in posner decision.

ripple effect:
the damage from mcconnell isn't so much what it upholds.
it is the uncertainty that now clouds the process.
a recent case from the 7th circuit illustrates this problem.

there'smcconnell, upholding mccain-goldberg.
there's the circle created by the new preceent in mcconell.
then, as here, there is the circle created by erroneous applications of mcconell.
then there's the circle of what legislators and officials think they can now get away with.
then t here's the circle of self censorship by potential speakers.
the ednn result is alot more censorship that the mcconnell court sanctioned.

Wednesday, March 10, 2004


'Tagline' could alter tone of ads
By Mark Memmott, USA TODAY
"Shut down" is the command computer users see day after day on their screens. It's so common it barely registers.

The president's campaign spots include the phrase "I'm George W. Bush, and I approved this message."
Bush-Cheney campaign

"I'm George W. Bush (or John Kerry), and I approved this message" is about to be the phrase millions of people hear night after night on TV.

That "tagline" — now required by law in candidates' TV and radio ads — may become background noise to most listeners, just as "shut down" goes mostly unnoticed. But admakers and political scientists say it will have subtle effects on candidates' broadcast ads.

Those ads' "accuracy will go up a bit, and their advocacy," or negativism, "will go down a bit," says Kathleen Hall Jamieson, director of the University of Pennsylvania's Annenberg Public Policy Center.

But though the candidates' ads could be a bit softer this year than they might have been otherwise, the number of "attack" or "negative" ads will still be up from 2000, ad makers and political scientists say. The election is expected to be about as close as four years ago, and even more advocacy groups are expected to weigh in with tough ads.

Identifying the messenger

Required by the McCain-Feingold campaign-finance law that went into effect last year, the tagline just had its national debut with the airing of Bush's first campaign ads. Viewers across the country are seeing and hearing what up to now only residents of states holding primaries and caucuses had been exposed to during Democratic ad wars. The tagline is supposed to make it clear which ads have been produced and paid for by candidates.

The law
Thanks to the McCain-Feingold campaign-finance law enacted in 2002, federal candidates' TV and radio ads must include a statement that "identifies the candidate and states that the candidate has approved the communication." In TV ads, the candidate must appear on camera or "in voice-over, accompanied by a clearly identifiable photographic or similar image of the candidate."

It will also point out which ads have been produced and paid for by political parties or advocacy groups. The parties and groups also must identify themselves in broadcast ads but aren't required to disclose their sources of funding. Uncovering that information can still require some digging.

The reason the tone of candidates' ads is expected to change slightly: It's riskier for a candidate to make controversial claims about his opponent's record and also appear on camera saying he OK'd the message. If he did, political ad makers and political scientists say, voters might be more inclined than ever to punish the accuser for going "negative."

This doesn't mean the presidential campaign will fail to live up to most ad makers' and political scientists' expectations. They say they believe this will be one of the most "negative" campaigns in memory.

The candidates will "just put their tougher ads on their Internet sites" and then count on the TV networks, radio talk shows, newspapers and other "free media" to publicize the attacks, says Andrew Ballard, president of the Republican ad making firm Creative Politics in Atlanta. There's no requirement that ads on candidates' Web sites include the "I approved this message" tagline.

President Johnson's famous 1964 "Daisy Girl" ad, which showed a child picking petals off a flower and gradually replaced her voice with an ominous "countdown," did not directly name Republican candidate Barry Goldwater. But it implied that Goldwater couldn't be trusted to lead the country in the nuclear age. The ad ended the countdown with an image of a nuclear explosion. Ad makers and political scientists say candidates couldn't broadcast such an ad today and then appear on screen saying they approved the message. The effect would be too jarring to voters.

But such an ad might be right at home on the Internet.

This year, the Bush campaign posted a jab at donations Kerry accepted from "special interests" on its georgewbush.com Web site. There was no tagline from Bush with that ad, which the campaign called "Unprincipled, Chapter 1."

Kerry responded with his own Internet ad — "Keep Our Word" — at johnkerry.com. The tough response raised questions about Bush's record on jobs, health care and other issues. Kerry, though it wasn't required, added the tagline.

Negative ads survive

The volume of negative ads on radio and television also won't go down and probably will rise instead, despite the tagline rule, ad makers and political scientists say.

Tough ads produced by the major parties and by advocacy groups from both ends of the political spectrum will more than make up for any softer tone coming from the candidates TV and radio spots, those experts predict. The "Willie Horton" ad that skewered Democratic candidate Michael Dukakis' record on crime in 1988 was produced by an advocacy group, and ads like that could still hit the airwaves today, Jamieson and others say.

On Sunday, the conservative group Citizens United began airing an anti-Kerry ad that spoofs MasterCard's series of "priceless" commercials, the Associated Press reported. Anti-Bush ads produced by the liberal group MoveOn.org have been airing nationally.

The tagline did not stop candidates, including Kerry, from taking hard shots at Bush in their broadcast ads during the battle for the Democratic presidential nomination. Ad makers say the candidates didn't worry about any backlash from voters because those ads were aimed at Democrats — voters already inclined not to support the president.

Going forward, though, it's expected that both campaigns will be cautious about taking shots at each other in ads. Each has seen what happened when two Democrats went after each other — not just Bush — during the run-up to January's Iowa caucuses.

"There was a direct correlation between the negative ads that (Rep. Dick) Gephardt and (former Vermont governor Howard) Dean ran on each other and their surprising, deflating defeats in Iowa," says Matthew Felling, media director at the non-partisan Center for Media and Public Affairs in Washington.

Wed Mar 10, 02:11:22 PM | gt bear | edit ]
Spoke w Mike Schaefer. The iec will not settle majors v iec.
need to update cocounsel and clients. 2:01 pm 3/10.
i clipped an article recently about a legislator (mayhern? d?) who is not happy with doris anne sadler - might be worthwhile to touch base w.
mike reneged on earlier agreement to file joint motion for summ judgment.
he suggests, though, that motion for summ judge is appropriate at this time.
and that he is in no hurry, so i wil need to file first.
before writing, i should review the file so as to not reinvent the wheel.
to do: touch base w julia vaughn.
threaten to involve jim bopp - send letter to bopp re wayne kirk sitution

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