Friday, July 23, 2004

notes re story below.
legal info
mixtape story
Daily Hip-Hop News: Doomed Music Retailer Wants 50 Cent, Eminem Backing Thursday - April 15, 2004
INDIANAPOLIS RETAILER SHUTTERED BY RIAA: Now he's looking for help from mix-tape/CD MCs
50 Cent(Apr. 16, 2004) *Sometimes as we all know, stuff happens. Such is the case with record store owner Alan Berry in Indianapolis.
story developing.
maybe this is the time and place for me to finally tell the story of sid's music server.ten years have gone by. i'm not sure what sid's up to these days; he headed west sometime last century and we lost touch.
he's the guy who invented internet filesharing, back in the day.
ok, him and al gore. more to come.
blogger profile Resources· Boycott RIAA· CanFLI· downhillbattle· Block the RIAA· subpoenadefense.org· copywrongs.org· RIAA Hit-List· RIAA Radar· EFF Petition· EFF: How not to get sued for file-sharing· chewplastic.com· DigitalMusicNews· peerguardian· p2pnet

Thursday, July 22, 2004

Anonymous record bust in indy.
Coffee and a bath, feeling rejuvenated. It's a new experience, having to haul the water from the well, heat it over a campfire, and enjoy a quick shallow bath before it cools. I exagerate slightly under the terms of poetic license. I met a guy whose poetic license was suspended - Indiana is tough when it comes to regulation of artistic speech.
And that's what this post is about.
A moment while i look up the nuvo article.  http://www.nuvo.net/archive/2004/07/21/busting_berrys_music.html

Alan and Andy Berry, owners of Berry’s Music stores, saw their nine-month legal nightmare end June 22 in a plea bargain. What was initially 13 felony counts of copyright infringement, leveled by the Recording Industry Association of America, was finally reduced to a single misdemeanor (and a hefty fine). But the real punishment was meted out months ago: Alan Berry lost his livelihood, lost the business he loved and nurtured for 13 years, may yet lose his house. And the crime for which he’s paid this price? Selling DJ mix-CDs....
In 2002, with business booming, the brothers opened a second store on the Southside. By then, Andy Berry had become more of a silent partner, with Alan overseeing the stores’ day-to-day operations. By 2003, Berry’s Music was enjoying yearly sales of $1.7 million (up from $46,000 its first year). Then, on Sept. 23, came a knock at the store’s back door that would derail Alan Berry’s life. “I was at our warehouse and got a call from one of the stores saying, ‘Hey Alan, the police are here with an RIAA agent and they’re wanting to confiscate all the mixes.’ I’m like, ‘What are you talking about?’ I couldn’t believe it.”....
Still, it wasn’t the arrests per se that doomed Berry’s Music. According to Alan, it was the reckless media coverage they received. Channel 8 was first to report the story, broadcasting a straightforward account of the raid that even allowed Alan Berry to question the illegality of mixes. Soon after, the story received national attention in the Village Voice and on MTV.
As a kicker, the report ended by casually noting that many of the places selling counterfeits are also associated with drugs and organized crime.
Following the actual arrests, The Indianapolis Star ran a story with a headline reading “BROTHERS ACCUSED OF SELLING BOOTLEGS” — even though the charges leveled against the Berrys had nothing to do with bootleg recordings. The words “bootleg” or “counterfeit” appear in the six-paragraph story four times; the words “mixtape” or “mix-CD” zero times.
The RIAA’s official Web site defines “bootleg”

Six of the felony counts against Berry’s Music were dropped in April when the defense rightly argued that the theft-of-royalty issues involved were federal matters, outside of local jurisdiction. Of the remaining charges, six were for fraud, for violating a little-known law that makes it illegal to sell CDs which don’t have the actual name and address of the manufacturer printed on the packaging. (The 13th count was “corrupt business influence,” leveled automatically for accruing six other charges.) Of course, nowhere near all CDs contain that information, which means that every store carrying CDs (from Target on down) is guilty of this obscure “crime.” The Berrys’ defense council, Norman Reed, argued that the selective application of this law effectively meant that prosecutors were using it to go after Berry’s for copyright violation (again, a federal issue) without calling it that. The presiding judge didn’t agree, the charges stood and the decision was finally made to accept the plea agreement.
 That was a longish excerpt, posted under fair use, but I wanted to hit the main points of the story. I'm not trying to be shaggy dog, I'll get to the point shortly here. Regular readers of this blog will see the clues in the highlighted text above.

But first, an inside joke - I wonder if Norman Reed's middle initial is V.
Norman v. Reed is a landmark first amendment case, a ballot access case about the Harold Washington Party. Washington was the first black mayor of chicago. The chicago library on the loop has a good exhibit about Washington. The rule in Reed is that ballot access laws which pose a severe burden are subject to strict scrutiny (what Scalia dissenting in McIntyre calls the kiss of death standard.) A problem with Reed is that it doesn't define what a severe burden is, but I digress. Heading to findlaw.com for the cite to Norman, http://laws.findlaw.com/us/502/279.html  I found this:
FindLaw Survey Reveals RIAA Lawsuits Unpopular with Americans .

Now here's the thing, finally.
The law under which the berrys were busted is unconstitutional, and their First Amendment rights were violated, both by the police, and by the Recording Industry goons.
Both criminal and civil actions are possible for such attacks on civil rights.
Is it 17 USC 241, i think? No prosecutor will indict themself, but this information could be provided to a grand jury. Perhaps ethical complaints could be filed against the prosecutor. I mention this only in passing. The Berrys' main recourse is 42 USC 1983. The individual police officers would, I think, be protcted by qualified immunity, but the police department would not, under Monell. The RIAA goons would not be immune. In my professional opinion, as someone who has followed this issue closely since 1992, won a few, lost a few, there's liability there.

I base my claim on McIntyre, Talley, ACLF, and Watchtower.
It's not open and shut. There's a legitimate purpose to the law requiring music and poetry to have the name and address of the publisher - to aid in prosecution of copyright violators.
But under Norman v. Reed, such a law is a severe burden and is subject to strict scrutiny, the kiss of death standard. Stewart v. Taylor and Odgen v. Marendt are local cases that make this point, finding laws requiring identification disclaimers on written literature to be unconstitutional. Majors v Abell is the case I just lost. Win a few, lose a few.
 I will send this article to Nuvo and see if anything develops. I might run it by chillingeffects.org,  site run by the Berkman center at Harvard and NIT. The RIAA has powerful enemies.

Sign me,
the dread pirate Roberts.


So, majors v abell is over, done, lost, so what's to become of this blog?
I could delete it, which I won't.
I could leave it here as an archive, which might be sensible.
Or, and this is where I'm headed, I could get back up on the horse, look around, dust myself off, start all over again.
I started this in 1996, won Stewart v. Taylor.
I filed majors v. abell in 1998, and lost it 7/9/04, when my last appeal was properly denied as untimely filed.
Anonymous v. Delaware was filed in 2000 and lost in 2001, when local counsel, not able to reach me at a crucial time, neglected to file the notice of appeal to  the Delaware Supreme Court.
I have a pending case, Taylor v. Taylor, which has been on hold while Majors v Abell was in play.
There's actually one last-ditch motion I'm going to file in Majors, but it will be futile.
Eric Barnes, one of my clients in Taylor, has some new facts, which could justify... aha.
Eureka! Barnes' signs were confiscated at the Lawrence municipal elections. He only had 80 of them. Under footnote 11, he wins. Barnes is a plaintiff in Taylor v. Taylor. He can file a supplemental complaint, with the new facts, and take that on up, preserving his constitutional claim and winning on the footnote 11 claim. Yay. Good to go. Now, should I look for for additional counsel? Run it by Rob King? Do a memo for caudiill and king and barnes.

On to the next round. In meeting with C_ yesterday, I learned of an event in (an Indiana) County. Two little old ladies (named margaret?) put out a flyer about a judicial race.
No disclaimer. They were threatened by the sheriff or prosecutor with jail time.
They retained C_. He negotiated with the prosecutor, saying, take it to a jury; no jury will send these little old ladies to jail.  A agreement was reached that they would not press charges, and they would revise their literature. Their speech was compelled under duress of prison. 
They have a case. They have sweet equities, like Mrs. McIntyre all over again.
They can file this in either state or federal court, and take it up, either to the 7th circuit en banc, or the U.S. Supreme Court.
what was the text of the flyer?
how much did they spend in legal fees?
liability - the county has a policy. monell. issue, was the sheriff involved, or just the prosecutor?
was the county election board involved?
Do i (still) have a smoking gun letter from that county?
do they want to fight it?
would it halp their beef with the judge?
ooh! is the judge liable?!!!! i think they will want to fight it to publicize their beef with the judge,and the judge may not be covered by judicial immunity, and we aren't local so we aren't afraid to go after the judge.
cases:  Minnesota Republican Party v. White, Watchtower, McIntyre, Talley, NAACP v. Alabama.
issue: need an underwriter, legal fees wise.

This concludes this first draft of this note.
It will shortly be revised to discuss another case  I found yesterday.
Record store v record companies, per nuvo article. 
Back in flash after a break.

Saturday, July 17, 2004

According to the clerk, the cert petition was filed a day late.
So that's over.
I'm no longer clear on what information I'd been relying on about the date being the 7th rather than the 6th.
So that's over, or is it.
We'll see. I mean, it's not going to get better, but it could get worse.

Wednesday, July 07, 2004

[i don't know how to do that trick where a long post is continued
at a link. this is, with some minor changes, the brief as filed,
with whatever formatting changes blogger makes.]

Supreme Court of the United States







On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Seventh Circuit


* [lead attorney asked his name not posted on internet -
looking for new lead counsel.]
Robbin Stewart, esq.
c/o 227 N Temple
Indianapolis IN 46201
Attorneys for Petitioners


A divided panel of the 7th Circuit upheld, per McConnell v. FEC, making it a crime to print political speech such as “Vote for Brian Majors”, speech without a disclaimer of the sort found unconstitutional in Talley v. California and McIntyre v. Ohio. Ind. Code 3-9-3-2.5

I Did the court err in holding that McConnell overrules McIntyre, ACLF and Watchtower?

II Did the court err in dismissing damage claims on official immunity grounds??

III Did the court err in denying costs and fees to plaintiff who was a prevailing party on the basis of having obtained a narrowed construction of the statute?



Plaintiff-petitioners are Brian Majors, Carol Antun, Perry Metzger, Richard Ray, Bill Branham, Jim Ray, and Bruce Martin. An anonymous plaintiff was dismissed, and plaintiff Lawyer’s Educational Advocacy Forum did not join the appeal.

Defendant-respondents are the members of the Indiana Election Commission, Dudley Cruea, Butch Morgan, S. Anthony Long, Joseph Perkins, and the Vanderburgh County Election Board, Marsha Abell, Mark Foster, in their official and individual capacities. Sue Hall is a county election board employee. Common Cause of Indiana participated as amicus before the Indiana Supreme Court on a certified question.


No plaintiffs are corporations. Each are individuals.




I. Review is warranted to determine whether McConnell v. FEC, 124 S. Ct. 619 (2003) reverses McIntyre v. Ohio, 514 U.S. 334 (1995). 3

II. Review is warranted on the issues of damages, costs and fees, because state governments are resisting Talley v. California, 362 U.S. 60 (1960), in a challenge to the authority of the court 4

III. Relief sought 5


Majors v. Abell, 317 F.3d 719 (7th Cir. 2003), 792 N.E.2d 18 (Ind. 7/24/2003), 361 F.2d 349 (2004) 3/15/2004, 1,2,3,4,5,6.
Doe v.2theMart,140 F.Supp.2d 1088, 4
ACLU v. Ashcroft, _ U.S. _ (2004), 2,4
ACLU of Georgia v. Miller, (977 F.Supp. 1228 (N.D.Ga 1997), 4
ACLU v. Johnson, 194 F.3d 1149 (10th Cir.) 4
ACLU v. Reno, 117 S.Ct. 2329 (1997) 4
ALA v. Pataki, 969 F.Supp 160 (1997) 4
American Constitutional Law Foundation [ACLF], Buckley v., 525 U.S.182 (1999), 2,3,5,6
Anonymous v. Delaware, 2000 Del. Ch. Lexis 84 (2000), 4
Arkansas Right to Life v. Butler, 29 F.Supp.2d 540, sustained on other grounds146 F.3d 558 (8th Cir 1998), 3
Barnett, W. Virginia v. 319 U.S. 624 (1943), 6
Booksellers v. Dean, 342 F.3d 96 (2003), 4,6
Buckley v Valeo, 424 U.S. 1 (1976) See Valeo
Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999) see aclf.
Chandler v Miller, 520 U.S. 305 (1997). 5
Cooper v. Aaron, 358 US 1 (1958) 2,5
Cyberspace v. Engler, 55 F.Supp.2d 737 (E.D. Mich 1999) 4
Democratic Party v Jones,530 U.S. 567 (2000) 5
Dennis v. Massachusetts, 329 N.E.2d 706 (Mass. 1975), 3
Ex Parte Harrison, 110 S.W. 709 (Mo 1908) 4
Farrar v. Hobby, 506 U.S. 103, 2,6
FEC v. Public Citizen, 268 F.3d 390, 4
Free Speech Coalition v. Ashcroft, 535 U.S. 234 (2002) 4
Gable v. Patton, 142 F.3d 940 (6th Cir. 1998), 4
Griset v CalFPPC (1999), reversed on other grounds, 4
Gulf Coast Printers v. Hill, 382 F.Supp. 8011 9S.D.Tx 1974), dismissed as moot. 3
Harlow v. Fitzgerald 457 U.S. 800 (1982) 2,3
Hiibel v. Nevada __ U.S. __ (2004) 2,4
Idaho v. Barney, 448 P.2d 195 (1968), 3
Illinois v. White, 506 NE2d 1284 (Ill. 1987) 4
Kentucky Right to Life v. Terry, 108 F.3d 637 (6th Cir), 4
Louisiana v. Burgess, 3
Louisiana. v. Moses, 655 So. 2d 779 (La. Ct. App. 1995), 3
Majors v. Abell, 317 F.3d 719 (7th Cir. 2003), 792 NE2d 18 (Ind. 2003), 361 F.2d 349 (2004), cert pending,
New York Times v. Sullivan 376 U.S. 254 (1964), 6
McConnell v. FEC, 124 S. Ct. 619 (2003) 1,2,3,5
McIntyre v. Ohio, 514 U.S. 334 (1995) 1,2,3,4,5,6
Minnesota Right to Life, 4
Monel v New York, 436 U.S. 658, 2,6
N.Dakota v. N.D. Ed. Assoc., 262 N.W.2d 731 4
New York v. Duryea, 351 NYS2d 978 (1974) 3
Washington ex rel Public Disclosure v. 119 Vote No!, 957 P.2d 691 (1998)
Ogden v. Marendt, (S.D. Ind 2004), 4
Peterslie v. N.Carolina, (N.Car. 1993) 4
Griset v. Cal. Fair Practices, 884 P.2d 116 (1994),(1999),(2001) 3
Riley v. Federation of the Blind, 487 U.S. 781 (1998) 5
Seymour v. Elections, 762 A.2d 880 (Conn. 2000), 4
ShrinkMo v. Maupin, 892 F. Supp. 1246 (E.D. Mo. 1995), aff'd, 71 F.3d 1422 (8th Cir. 1995), 3
Smith v California, 361 U.S. 147 (1959), 4,6
Stewart v. Taylor, 953 F.Supp.1047 (S.D.Ind.1997), 4
Talley v. California, 362 U.S. 60 (1960), 2,3,5,6
Tennessee v. Acey,633 SW2d 307 (TN 1982) 4
Texas v. Doe, (Tx. Cr.App. 5/14/2003) 4
Valeo, Buckley v. 424 U.S. 1 (1976), 5
Vermont Right to Life v. Sorrell, 221 F.3d 376, 392 (2d Cir. 2000), 4
Watchtower v. Village of Stratton, 536 U.S. 150 (2002) 2,5
West Virginians for Life, Inc. v. Smith, 919 F. Supp. 954 (S.D. W. Va. 1996), 4
Wilson v Stocker, 819 F.2d 943, 950 (10th Cir. 1987), 3
Wooley v Maynard, 430 U.S. 705 (1977) 4,6
Yes to Life PAC v. Gardner, 4

42 U.S.C. 1983,1985, 1
Article III, 1
FECA 318 3
BCRA 311 3
First and Fourteenth Amendments, 1
Ind. Code 3-9-3-2 1
Ind. Code 3-9-3-2.5, 1

Table of Appendices
A Opinion of 7th circuit
B. Indiana Supreme Court
C Opinion of 7th Circuit
D Docket entry of denial of rehearing.



The initial opinion of the Seventh Circuit by J. Posner is reported at 317 F.3d 719 (7th Cir. 2003). The Indiana Supreme Court, 792 N.E.2d 18 (Ind. 7/24/2003) answered a certified question. The Seventh Circuit panel ruled against Plaintiff-Appellants, 361 F.2d 349 (2004) 3/15/2004. J. Easterbrook filed a dubitante opinion. Rehearing by the panel was denied April 7th 2004.


The Court has jurisdiction over a federal question under the First and Fourteenth Amendments, and Article III, and under 42 USC 1983,1985, and the declaratory judgment act. This Court has jurisdiction over appeals from the Circuit Courts.
Jurisdiction was proper in the district and circuit courts.


First Amendment – speech, press and petition clauses. Fourteenth Amendment - due process, equal protection, and privileges and immunities clauses.
Ind. Code 3-9-3-2.5.


In 1997 the Indiana legislature passed Ind. Code 3-9-3-2.5, after IC 3-9-3-2 had been declared unconstitutional per McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) by Stewart v. Taylor, 953 F.Supp.1047 (S.D.Ind.1997). Plaintiff Majors was threatened with prosecution by his county election board.

Plaintiffs filed suit in district court in Indianapolis in October of 1988 to enjoin a statute and policy which appeared to prohibit handmade campaign signs of the sort “Vote for Brian Majors” and to chill political advocacy on the internet. They sought damages and a declaratory judgment and fees. Injunctive relief was denied.

The district court dismissed plaintiff “Anonymous”, a woman from Texas who was unwilling to identify herself for fear of retaliation. The district court certified state constitutional questions to the Indiana Supreme Court, but neglected to send the paperwork over, and later dismissed the pendant state claims on abstention grounds. These dismissals were not preserved for review. The district court dismissed the case in 2003 on mootness grounds arising from its own inaction. A panel of the Seventh Circuit denied injunctive relief, reversed dismissal, certified a question to the state supreme court, tabled the case pending McConnell, and then dismissed on the merits, awarding costs to defendants. Judge Easterbrook filed a dubitante opinion, expressing doubt in Judge Posner’s majority opinion. A motion for reconsideration was denied April 7, 2004.


I. Review is warranted to determine whether McConnell v. FEC reverses McIntyre v. Ohio as to the constitutionality of compelled political campaign speech.

II Review is warranted to address compliance with Talley v. California.

The court erred in failing to apply strict scrutiny and strike down the statute.
The court erred in holding that McConnell v. FEC overrules McIntyre v. Ohio,514 U.S. 335 (1995), Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999) and Watchtower v. Stratton,536 U.S. 150. Alternatively, the court erred in failing to consider the intent of the founders, which was to protect anonymous speech such as that of Zenger and Lilbourne and Publius. The statute imposes a severe burden and requires most exacting scrutiny, not blind deference to legislative nimbyism.

The court erred in dismissing damage claims against Vanderburgh County on official immunity grounds, and erred in dismissing individual capacity claims on official immunity grounds. Monel v New York, 436 U.S. 658, Harlow v. Fitzgerald. The court erred in denying costs and fees to plaintiffs, who were prevailing parties under Farrar v. Hobby, 506 U.S. 103, on the basis of having obtained a narrowed construction of the statute.

Was McConnell a tsunami, washing away all previous campaign speech cases?
Or was it limited to upholding most of BCRA, a statute narrowly tailored to deterring apparent corruption?

In Majors the Seventh Circuit takes the apocalyptic view. Nothing is left of Talley or McIntyre or Buckley v. ACLF. Watchtower can be limited to Jehovah’s Witnesses.
The court should grant cert to show that Talley v. California, 362 U.S. 60 (1960) is still good law. In Cooper v. Aaron, 358 US 1 (1958) the court was emphatic that Brown v Board (1954) be followed. But in 2004, Talley is still not being followed. Dissenting in McIntyre, J. Scalia’s footnote two listed the many states that still have disclaimer statutes. Following McIntyre in 1995, some states, by litigation or attorney general opinion, followed McIntyre, while in others the resistance continued. For Majors to have reached this court, it was first necessary for the legislature, the governor, the state officials, the county officials, the federal court, and the state supreme court, all to openly defy the holdings of this court that the Bill of Rights protects anonymous campaign speech. This cases raises issues of separation of powers and federalism. As Andrew Jackson asked, where is your army? Can the opinions of the Supreme Court just be ignored if unpopular? Partly this may be due to conflict within the court itself. McConnell, Hiibel,_U.S. _(2004), ACLU v. Ashcroft, _ U.S. _ (2004), fail to reach a strong consensus on whether there is a right to speak and a right to remain silent. But on the issue of election disclaimers, Buckley v. ACLF and Watchtower v. Stratton do show a strong consensus that McIntyre is good law, a point repeated in McConnell note 88. The Seventh Circuit’s analysis of McConnell confuses suppression of campaign speech with regulation, via
reporting, of campaign finance. This trap has been carefully set by Common Cause, the Brennan Center, and other opponents of potentially politically incorrect speech, who would burn the village to roast a pig.

If the Seventh Circuit is correct that anything goes, what might an election official think they can get away with now under Harlow v. Fitzgerald qualified immunity?
Is this a dark day for the First Amendment? We urge the court to grant cert to show that McConnell did not overrule McIntyre, or the court’s other election speech precedents.

It is in the interests of the 4 dissenters in McConnell to take this case to set limits to McConnell’s reach. It is in the interests of the ACLF court, and the majority in Watchtower, to show that those cases remain both authoritative and persuasive.

The McConnell majority also has an interest in taking this case, to show that it was not the harbinger of the apocalypse, but upheld narrowly tailored reporting requirements to redirect potentially corrupting dollars into other channels. In a partial dissent, regarding section 305, J. Stevens indicated that his views on anonymous speech may have changed since McIntyre, at least as to speech by the rich and powerful, not implicated here.

McConnell was not just another case. It received expedited review, an unusual summer hearing, consolidation of multiple cases, extra time for oral argument. In both length and impact, it is highly significant. But no one knows quite what it means, and this lack of clarity has a chilling effect beyond its relatively limited holding, which upheld most of a statute carefully drafted to survive review. The Court should take this case to clarify McConnell.

This case could shed light on the constitutionality of FECA 318 and BCRA 311 under McIntyre, which was not reached in McConnell for jurisdictional reasons and due to the questions presented. McConnell upheld 311, but only as to an express advocacy challenge, not as an anonymous speech issue.

Those who think this is an important case include not only those who think it should be reversed, but those who think it should be upheld. The court will have to face this split some day if not here.

There is a split in authority as to whether anonymous campaign speech by or about candidates is constitutionally protected, which dates back nearly to Talley. On one side,
Wilson v Stocker, 819 F.2d 943, 950 (10th Cir. 1987), Arkansas Right to Life v. Butler, 29 F.Supp.2d 540, sustained on other grounds146 F.3d 558 (8th Cir 1998), ShrinkMo v. Maupin, 892 F. Supp. 1246 (E.D. Mo. 1995), aff'd, 71 F.3d 1422 (8th Cir. 1995), Griset v CalFPPC (1999), reversed on other grounds, Louisiana v. Burgess, Louisiana. v. Moses, 655 So. 2d 779 (La. Ct. App. 1995), Illinois v. White 506 NE2d 1284 (Ill 1987), Idaho v. Barney, 448 P.2d 195 (1968), New York v. Duryea,351 NYS2d 978 (1974) Dennis v. Massachusetts, 329 N.E.2d 706 (Mass. 1975, Gulf Coast v. Hill 382 F.Supp 8011 (SD Tx 1974), dismissed as moot 1976, Texas v. Doe,(Tx. Cr.App. 5/14/2003) Yes to Life PAC v.
Gardner, Anonymous v. Delaware, 2000 Del. Ch. Lexis 84 (2000), Stewart v. Taylor, 953 F.Supp. 1047 (S.D.Ind. 1997), N.D. v. N.D. Ed. Assoc., Vermont Right to Life v. Sorrell, 221 F.3d 376, 392 (2d Cir. 2000), No on 119!, West Virginians for Life, Inc. v. Smith, 919 F. Supp. 954 (S.D. W. Va. 1996), Minnesota Right to Life, Ogden v. Marendt, (S.D. Ind 2004), ACLU of Georgia v. Miller, 977 F.Supp. 1228 (N.D.Ga 1997), Booksellers v. Dean,342 F.3d 96 (2003) ALA v. Pataki,969 F.Supp 160 (1997) ACLU v. Johnson,194 F.3d 1149, Doe v. 2theMart, 140 F.Supp2d 1088, and Cyberspace v. Engler, 55 F.Supp.2d 737 (E.D.MI), upheld unpublished 6th Cir., have indicated that the constitution protects anonymity and advocacy. Ex Parte Harrison, 110 S.W. 709 (Mo 1908) is a state constutional precursor.

Many Supreme Court cases have expressed reservations about banning or compelling speech. ACLU v. Reno,117 S.Ct. 2329(1997), ACLU v. Ashcroft,_ U.S. _ (2004), Free Speech Coalition v. Ashcroft,535 U.S. 234 (2002), Wooley v. Maynard, 430 u.S. 705 (1977), Riley v. Federation of the Blind,487 U.S. 781 (1998) W.VA. v.Barnette,319 u.S. 624 (1943) Smith v California, 361 U.S. 147 (1959).

On the other is what could be called the Kentucky exception to the right of anonymous speech. Kentucky Right to Life v. Terry,108 F.3d 637 (6th Cir), Wilkinson v. Jones, Moorehead v. Moore,Gable v. Patton, 142 F.3d 940 (6th Cir. 1998), Peterslie v. N.Carolina,(N.C. 1993), Griset 884 P.2d 116 (Cal, 1994) (reversed on merits 1999),(re-reversed 2001) FEC v. Public Citizen, 268 F.3d 390, Seymour v. Elections, 762 A.2d 880 (Conn. 2000), Tennessee v. Acey,633 SW2d 307 (Tn. 1982) and now Majors.

The statute at issue prescribes prison for those who print “vote for Smith.”
It outlaws democracy. It violates well-established rights to speech, press, petition, assembly, voting and privacy. While no 4th or 5th a claim has been raised, the case is supported by policies against unwarranted search and against self-incrimination, implicit in the concept of ordered liberty protected under the Fourteenth Amendment. Even Hiibel required a valid Terry stop.

The Seventh Circuit’s reliance on McConnell fails to address plaintiff-petitioners claim that Smith v. California prohibits criminal prosecution of speech with no mens rea standard, which would be an adequate and independent ground even if McIntyre had been overruled

Equal protection, due process, and privileges and immunities:
The privileges and immunities clause protects, among other things, campaigns for federal office. Here, it is a candidate for state office who is threatened with imprisonment.
But that chills speech by and for federal candidates. The Libertarian Party, with 600 in office at the local or state level, has yet to elect a federal official. The federal and state campaigns support each other, and interference with one is interference with the other.

This statute is only one of many which prevents the Libertarian Party from free and equal participation in elections. Valeo, 424 U.S. 1 (1976), McConnell, Democratic Party
v Jones, 530 U.S. 567 (2000), Chandler v Miller, 520 U.S. 305 (1997). Here plaintiffs do not seek an exception for themselves, but seek liberty for all. As McIntyre showed, these laws are used by the winners to punish the losers.

This case is well suited both to the faction of the court which prefers a strict scrutiny test, and to those who look to the intent of the founders. McIntyre and Talley do not just apply a formula, but review the history of the First Amendment, telling the stories of Zenger and Lilborne. The case should appeal both to conservatives, who seek to preserve the right of freedom of the press secured by the revolution, and to liberals, who see the full flower of freedom of speech and voting rights emerging out of the Internet and today’s general prosperity. The case should appeal both to the 4 dissenters in McConnell, who would want that case interpreted narrowly, but also to the majority, when McConnell is unfairly characterized as sweeping away all the court’s previous protections of voting and political speech.

It should appeal to the eight justices in Watchtower, 536 U.S. 150 (2002), and the nine in American Constitutional Law Foundation, 525 U.S.182 (1999), who said that McIntyre protects this sort of speech.

The case itself cries out for review. Judge Posner never claims the statute is a good idea, only that McConnell has cast everything into doubt leaving no standards for lower courts to apply. “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.” Majors, slip op. at 11. This is not an affirmation of McConnell; it is a cry for help.

Relief Sought:

If the court does take the case, it has multiple options for how to dispose of it. As with Leake, it could remand for further consideration in light of McConnell. It could summarily reverse, citing Watchtower or McIntyre.
It could remand, citing Farrar v. Hobby, indicating that the court erred in denying prevailing party status after plaintiffs obtained a dispositive narrowing construction. Plaintiffs would waive the other issues in return for such a ruling.
Or, it could take the case and decide whether McConnell overrules McIntyre and Talley.
In 1960, the court held that anonymous campaign speech is protected. For forty-four years, Indiana, and most other states, have refused to follow Talley, just as Brown v. Board was resisted prior to Cooper v. Aaron. One result has been tainted elections that are neither free nor equal. Plaintiffs seek another Cooper v. Aaron, in which the court would direct states to end their defiance of Talley. One way to make this point would be to re-institute damage claims against the county the officials in their personal capacity who knowingly and continuously violated rights well-established by McIntyre.
In the event that there are not four votes for certiorari, we at least ask each justice to make a written dissent to denial, as a signal that the case is unreliable as precedent.

There are three issues presented. Plaintiffs-appellants claim the court wrongfully upheld the statute, wrongfully denied prevailing party status, and wrongfully dismissed damage claims.

The statute is unconstitutional, under McConnell note 88, Watchtower, ACLF, McIntyre, Talley, Smith, Wooley, New York Times v. Sullivan 376 U.S. 254 (1964), and Barnette.

Under Farrar v Hobby, plaintiffs are a prevailing party because the lawsuit has changed the legal relations between the parties. The change is a small one, and is less than was sought, but was dispositive. The Indiana Supreme Court, footnote 11, construed the statute to exempt up to 100 copies, in order to avoid an equal protection violation. Lead plaintiff Brian Majors made less than 100 of his signs. In denying him costs and fees, and assessing costs against him, the court has added injury to insult.

The Seventh Circuit upheld dismissal of damage claims, citing official immunity. There is no such official immunity, under Monell, against the county (named here by naming the county officials in their official capacity.) There is no such official immunity against county officials in their personal capacity when they deliberately and continuously violate rights well-established by McIntyre and Stewart v. Taylor, 953 F.Supp. 1047 (S.D.Ind. 1997). Once the three-judge panel ruled in McConnell, it could be argued that the law was no longer clear, but this does not relate back to absolve liability for what at the time the suit was filed was a tortious and felonious interference in the most fundamental of rights. Qualified immunity does not attach on the basis that some court some day may overrule the rights plaintiff relies on. McIntyre held that there is no elections exception to Talley, and found a candidate disclaimer statute facially void. The circumstances which gave Mrs. McIntyre standing had to do with a referendum, but the holding of the case reached candidate advocacy. Stewart v. Taylor found that McIntyre applied to candidate elections in Indiana, and bound defendants by the law of the case. The county defendants are in privity with the state defendants on that point. The Court’s interest is not so much in doing justice to these particular defendants, as it is to state broad principles of law, to protect democratic process both against censorship and against corruption. This case presents an opportunity to resolve some of the indeterminacy caused by McConnell as well as to state that the footdragging over Talley should end.


Petitioners respectfully request that the Supreme Court grant review of this case.

Monday, July 05, 2004

http://caselaw.lp.findlaw.com/data2/circs/7th/033433p.pdfodd posner case on standing, effectively reverses majors.
merits have to do with flag burning, a megan lawson.
i'll need to contact her.
anyway, it gives a cite for majors, 361 F.2d 349 (7th Cir. 2004).

Sunday, July 04, 2004

United States District Court,
S.D. Indiana,
Indianapolis Division.

Robbin STEWART, Plaintiff,
Sarah TAYLOR, Clerk of the Circuit Court of Marion County, Indiana, and member
of the Marion County Election Board, Richard Milan, member of the Marion County
Election Board, John Muller, member of the Marion County Election Board, David
Perkins, a member of the Ward 2, Precinct 3 Election Board, in their official
and individual capacities, and John Doe; Jeffrey Mallamad, Chairman of the
Indiana Election Commission, Butch Morgan, Member of the Indiana Election
Commission, Dudley Cruea, Member of the Indiana Election Commission; and
Joseph Perkins, Member of the Indiana Election Commission, in their official
and individual capacities, Defendants.

No. IP 96-1085-C-B/S.

Jan. 22, 1997.

*1049 Michael T. Schaefer, Indianapolis, IN, for Plaintiff.

Douglas J. Webber, Webber & Barber, Indianapolis, IN, for Defendants.


BARKER, Chief Judge.

Plaintiff Robbin Stewart, a Republican candidate for a seat on the Center Township Advisory Board in last November's election, has brought an Amended Complaint against the named Defendants seeking a declaratory judgment that Indiana Code section 3-9-3-2, a state election campaign statute which prohibits anonymous electoral campaign literature, is unconstitutional. Stewart alleges that the provision is an unconstitutional abridgement of his right of free speech guaranteed by the First and Fourteenth amendments to the United States Constitution and by Articles 1 and 2 of the Indiana Constitution. Stewart also seeks an award of compensatory damages against Defendants pursuant to 42 U.S.C. § 1983 for having violated his constitutional rights under color of state law and an award of attorney fees and costs pursuant to 42 U.S.C. § 1985. The matter is presently before the Court on Stewart's motion for summary judgment on his declaratory judgment claim. For the following reasons, the Court grants the motion.

I. Statement of Facts

The material facts of this case are not in dispute. See Def.'s Resp.Br., pp. 2-3. Stewart, a resident of Marion County, Indiana, was a successful candidate for the Republican nomination for the District 3 seat on the Center Township Advisory Board in the May 7, 1996 primary election. The day of the primary election, Stewart placed a sign near the Ward 2, Precinct 3, polling station, located at Indianapolis Public School 101, which read "Robbin Stewart for Township Advisory Board Vote Tuesday." The sign did not identify the party who paid for it. David Perkins, a Ward 2 precinct election official, told Stewart that he intended to remove the sign at the insistence of a Democratic poll watcher, whom Stewart has identified as John Doe in his Amended Complaint, on the grounds that the sign did not comply with Indiana Code section 3-9-3-2. That statute states in relevant part as follows:
(a) Except as provided in subsection (c), this section applies to an individual ... that purchases advertisement time or space or circulates or publishes material in support of or in opposition to:
(1) a candidate;

* * * * * *
*1050 (b) The individual, organization, or committee shall include in the advertisement or material the following statement or the equivalent:
"Paid for by ___ (insert the name of the individual who paid for the advertisement and, if the advertisement is paid for by an organization or a committee, include the name of the chairman or treasurer of the organization or committee) and (if presented in support of a candidate or more than one (1) candidate) presented ___ (insert either "with" or "without") the approval of ___ (insert the name of each candidate), candidate for ___ (the office or offices for which each candidate is running)." Plaintiff Robbin Stewart, a Republican candidate for a seat on the Center Township Advisory Board in last November's election, has brought an Amended Complaint against the named Defendants seeking a declaratory judgment that Indiana Code section 3-9-3-2, a state election campaign statute which prohibits anonymous electoral campaign literature, is unconstitutional. Stewart alleges that the provision is an unconstitutional abridgement of his right of free speech guaranteed by the First and Fourteenth Following the primary election, Stewart filed on August 1, 1996 a complaint for preliminary and permanent injunction, declaratory judgment and damages against Sarah Taylor, the Clerk of the Court of Marion County, Richard Milan and John Muller, members of the Marion County Election Board, David Perkins, a member of the Ward 2, Precinct 3 Election Board, and a Democratic poll watcher whom Plaintiff identified as John Doe ("County Defendants"). This original complaint contained two principal claims. First, Plaintiff moved for a preliminary injunction against the enforcement of Indiana Code sections 3-8- 7-21 and 3-8-7-22 prohibiting dual party nominations as an unconstitutional abridgment of his right of political association. Second, Plaintiff sought a judgment declaring Indiana Code section 3-9-3-2 prohibiting anonymous electoral campaign literature to be unconstitutional. After a hearing on Plaintiff's motion for a preliminary injunction, Judge Dillin of this Court found that sections 3-8-7-21 and 3-8-7-22 passed constitutional muster and denied Stewart's motion on August 19, 1996. Stewart filed a notice of appeal on August 22.

On August 30, 1996 Plaintiff moved for summary judgment on the issue of the constitutionality of section 3-9-3-2 prohibiting anonymous electoral campaign literature. [FN1] County Defendants submitted a response brief on September 16, 1996. During an October 29, 1996 telephone conference, which the Court conducted with counsel for Plaintiff and County Defendants, it was agreed that, to properly challenge the constitutionality of section 3-9-3-2, Plaintiff would need to name members of the Indiana Election Commission as additional defendants so as to properly represent the State's interests. Plaintiff filed an Amended Complaint on November 4, 1996 and named, in addition to the County Defendants, Indiana Election Commission members Jeffrey Malamad, Butch Morgan, Dudley Cruea, and Joseph Perkins ("State Defendants"). [FN2] After making an appearance, State Defendants moved on December 23, 1996 to adopt County Defendants' brief in response to Plaintiff's summary judgment motion, which motion to adopt the Court hereby grants. [FN3]

FN1. Plaintiff's motion does not seek summary judgment on Plaintiff's claims for damages under 42 U.S.C. § 1983 or attorney fees and costs under 42 U.S.C. § 1985. These claims remain unbriefed and unresolved.

FN2. Stewart included in his Amended Complaint the same claim for preliminary and permanent injunctive relief in regard to sections 3-8-7- 21 and 3-8-7-22 that Judge Dillin denied on August 19, 1996. Judge Dillin's decision, of course, serves as res judicata and precludes Stewart from relitigating that claim merely by adding new defendants. Moreover, Stewart's filing of a notice of appeal of Judge Dillin's decision strips this Court of any jurisdiction over that claim. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 402, 74 L.Ed.2d 225 (1982).

FN3. Because Plaintiff's Amended Complaint differs from his original complaint only in its addition of State Defendants as parties to the lawsuit, we construe Plaintiff's motion for summary judgment, filed and served prior to the amendment of the complaint, as nevertheless directed in regard to Plaintiff's Amended Complaint. We similarly construe Defendants' response briefs as made in regard to the Amended Complaint.

*1051 II. Declaratory Action

[1][2] Stewart seeks a declaratory judgment that section 3-9-3-2 violates the First Amendment and Articles 1 and 2 of the Indiana Constitution. The Declaratory Judgment Act gives courts of the United States discretionary power to issue declarations regarding "the rights and other legal relations of any interested party seeking such declarations." 28 U.S.C. § 2201. [FN4] See Deveraux v. City of Chicago, 14 F.3d 328, 330 (7th Cir.1994). It is well recognized that the Act provides a way of challenging the constitutionality of state statutes, such as the Indiana statute at issue here. See 6A James W. Moore et al., Moore's Federal Practice ¶ 57.18[2] (2d ed. 1996). Nevertheless, courts may not exercise discretionary power provided by the Act in the absence of an "actual controversy" between the parties. 28 U.S.C. § 2201; Deveraux, 14 F.3d at 330. The Declaratory Judgment Act's "actual controversy" requirement tracks the "case" or "controversy" requirement of Article III. See Deveraux, 14 F.3d at 330; see also 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 2d § 1757. See also Trippe Mfg. Co. v. American Power Conversion, 46 F.3d 624, 627 (7th Cir.1995) (Declaratory Judgment Act allows federal courts to render judgments "only where there exists an 'actual controversy': the latter requirement is a 'jurisdictional prerequisite of constitutional dimensions' ") (internal citation omitted). In other words, the Act authorizes courts only to grant relief "which is consonant with the exercise of the judicial function in the determination of controversies to which under the Constitution the judicial power extends." Deveraux, 14 F.3d at 330 (quoting Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 240, 57 S.Ct. 461, 463, 81 L.Ed. 617 (1937)). Cf. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 757, 70 L.Ed.2d 700 (1982) ("Article III of the Constitution limits the 'judicial power' of the United States to the resolution of 'cases' and 'controversies' "). Consequently, we must determine whether Stewart has presented a justiciable claim. [FN5]

FN4. The Declaratory Judgment Act states:
In a case of actual controversy within its jurisdiction ... any court of the United States upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.
28 U.S.C. § 2201.

FN5. While Defendants do not question Stewart's standing to bring his declaratory action, we must, nevertheless, determine that we have jurisdiction over Stewart's suit. See Sherman v. Community Consol. Sch. Dist. 21 of Wheeling Tp., 980 F.2d 437, 440 (7th Cir.1992), cert. denied, 508 U.S. 950, 113 S.Ct. 2439, 124 L.Ed.2d 658 (1993) (jurisdiction is a court's first order of business).

[3][4] "In determining whether or not an actual controversy exists, 'the question in each case is whether the facts alleged, under all circumstances, show that there is a controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant issuance of a declaratory judgment.' " Trippe Mfg. Co. v. American Power Conversion, 46 F.3d 624, 627 (7th Cir.1995) (quoting Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941)). These are the same prudential concerns that inform the several doctrines that have evolved to elaborate Article III's "case or controversy" requirement. The Article III doctrine that requires a litigant to have "standing" to invoke the power of a federal court is perhaps the most important of these case-or-controversy doctrines. Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). To establish standing, a plaintiff must: (1) have suffered an "injury in fact," defined as "an invasion of a legally-protected interest" that is "concrete and particularized" and "actual or imminent, not conjectural or hypothetical"; (2) establish a causal connection between the conduct at issue and the injury; and (3) show that a favorable judicial decision would likely, rather than speculatively,*1052 redress the injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992) (restating case law). See also Marozsan v. United States, 90 F.3d 1284, 1288 (7th Cir.1996); Briggs v. Ohio Elections Commission, 61 F.3d 487, 491 (6th Cir.1995).

[5][6][7][8] Our standing inquiry focuses on whether Stewart has suffered an injury in fact. In this case, an election campaign sign that Stewart had put up beside a polling station during his quest for the Republican nomination was removed on account of the challenged statute. The removal of Stewart's campaign sign most likely is not an event that by itself confers standing on Stewart because he would not be able to show any injury. Stewart won the primary without the sign. Therefore, if Stewart is to have standing to sue, it must be as a result of the Election Board's threat that it will continue to enforce the challenged campaign statute. While Stewart succeeded in securing the nomination and while he voluntarily discontinued the use of anonymous campaign literature during the remainder of the general electoral campaign, he nevertheless continued to be subject to enforcement of the statute through the November 5, 1996 General Election. Typically, the threat of an injury is enough to confer standing. As the Supreme Court noted in Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975), the "injury in fact" requirement is satisfied upon a finding that a plaintiff has suffered "some threatened or actual injury resulting from the putatively illegal action." This is especially so in the field of First Amendment law. See, e.g., Steffel v. Thompson, 415 U.S. 452, 458-60, 94 S.Ct. 1209, 1215- 16, 39 L.Ed.2d 505 (1974) (threats of prosecution for handbilling on sidewalk against American involvement in Vietnam established petitioner's standing to challenge state trespass law); Hoover v. Wagner, 47 F.3d 845, 847 (7th Cir.1995) (anti-abortion activist established standing based on reasonable probability of his suffering arrest, prosecution, and conviction as a result of his protest); Pestrak v. Ohio Elections Commission, 926 F.2d 573, 576 (6th Cir.), cert. dismissed, 502 U.S. 1022, 112 S.Ct. 672, 673, 116 L.Ed.2d 763 (1991) (plaintiff established standing where his previous political activities led to his charge and investigation by the state election commission and where he planned to continue in the same kind of political activities); West Virginians For Life, Inc. v. Smith, 919 F.Supp. 954 (S.D.W.Va.1996) (plaintiffs had standing to challenge state statutes regulating distribution of voter guides where plaintiffs faced prospective sanctions on account of distributing voter guides in manner they desired). The free speech cases cited above involved threats of prosecution. Stewart does not allege that any continued violation of section 3-9-3-2 by him would lead to his prosecution. He does, however, allege that a Marion County Election Board official told him that the statute would be enforced. Under Indiana law, an infraction of section 3-9-3-2 is a Class A misdemeanor. See Ind.Code § 3-14-1-3. Furthermore, the Marion County Election Board would be obligated to report any infraction of section 3-9-3-2 by Stewart to the Marion County prosecutor. See Ind.Code § 3-14-5-3(b) ("The state election board and each county election board shall report a violation of this title as a felony or misdemeanor to the appropriate prosecuting attorney and the alleged violator"). The Board's promise to enforce the statute consequently raised the specter that Stewart would have been prosecuted if he had continued to disobey the statute. This threat is enough to confer standing. As the Supreme Court stated in Steffel, where a plaintiff is threatened with prosecution "it is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights." 415 U.S. at 459, 94 S.Ct. at 1216. See also Bland v. Fessler, 88 F.3d 729 (9th Cir.), cert. denied, 519 U.S. 1009, 117 S.Ct. 513, 136 L.Ed.2d 403 (1996) ("That one should not have to risk prosecution to challenge a statute is especially true in First Amendment cases, '[f]or free expression--of transcendent value to all society, and not merely to those exercising their rights--might be the loser' ") (quoting Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1120-21, 14 L.Ed.2d 22 (1965)).

*1053 The remaining two required elements of standing are easily met. The threat of injury was clearly the result of the challenged statute and a declaration that the statute is unconstitutional would most likely dissuade the Marion County Election Board from attempting to enforce the statute.

[9][10][11] A second case-or-controversy doctrine implicated in the present case is that of mootness. A "case is moot when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1950, 23 L.Ed.2d 491 (1969). Since the time Stewart filed his original complaint, the November election has come and gone. This does not, however, necessarily render the lawsuit moot. The Supreme Court has recognized that often in cases challenging statutes that govern elections there is not sufficient time between the filing of the complaint and the election to obtain judicial resolution of the controversy before the election. As a result, the Court has allowed such challenges to proceed under the "capable of repetition yet evading review" exception to the mootness doctrine. See Norman v. Reed, 502 U.S. 279, 286- 89, 112 S.Ct. 698, 704-05, 116 L.Ed.2d 711 (1992); First National Bank of Boston v. Bellotti, 435 U.S. 765, 772-76, 98 S.Ct. 1407, 1414-15, 55 L.Ed.2d 707 (1978); Storer v. Brown, 415 U.S. 724, 737 n. 8, 94 S.Ct. 1274, 1282 n. 8, 39 L.Ed.2d 714 (1974); Moore v. Ogilvie, 394 U.S. 814, 814-16, 89 S.Ct. 1493, 1494, 23 L.Ed.2d 1 (1969). See also Citizens For John W. Moore v. Board of Election Com'rs of the City of Chicago, 794 F.2d 1254, 1256 (7th Cir.1986). This exception applies under two conditions: "(1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party would be subject to the same action again." Meyer v. Grant, 486 U.S. 414, 417 n. 2, 108 S.Ct. 1886, 1890 n. 2, 100 L.Ed.2d 425 (1988) (quoting Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350 (1975) (per curiam)). See also First National Bank of Boston v. Bellotti, 435 U.S. 765, 772-76, 98 S.Ct. 1407, 1414-15, 55 L.Ed.2d 707 (1978); Teper v. Miller, 82 F.3d 989, 992 n. 1 (11th Cir.1996) (citing Weinstein). In the instant case, neither party has informed the Court of the results of the November election, or whether Stewart plans to be a candidate in a future municipal, county, or state-wide election. Despite the absence of such information in the record, we find that Stewart's challenge satisfies both prongs of the test. For the most part, in cases involving challenges to election rules, the Supreme Court has found the two-prong test easily satisfied. See, e.g., Norman, 502 U.S. at 288, 112 S.Ct. at 705 ("There would be every reason to expect the same parties to generate a similar, future controversy subject to identical time constraints if we should fail to resolve the constitutional issues that arose in 1990"); Meyer, 486 U.S. at 417 n. 2, 108 S.Ct. at 1890 n. 2; Bellotti, 435 U.S. at 774-75, 98 S.Ct. at 1414-15. See also Patriot Party v. Allegheny County Dept. of Elections, 95 F.3d 253, 257 (3rd Cir.1996) (quoting Norman). In the instant case, we are skeptical that future local or county election campaigns will be long enough in duration to see both the commencement and resolution of a constitutional challenge to section 3-9-3-2. See Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 713, 35 L.Ed.2d 147 (1973) (finding that because the normal 266-day human gestation period is too short for the usual appellate procedure to run its course, pregnancy provides a classic justification for a conclusion of nonmootness). While we do not know whether Stewart is currently holding the office for which he ran, we can reasonably assume that he will participate in future election campaigns, either as candidate or supporter, and will again seek to avoid the requirements of the statute. Therefore, we find that Stewart's case is not moot.

[12] Turning to the substantive issue in the case, we must determine whether section 3-9-3-2 violates Stewart's First Amendment right to freedom of speech. In McIntyre v. Ohio Elections Commission, 514 U.S. 334, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995), the Supreme Court struck down as unconstitutional an Ohio statute that required all printed political campaign literature in the state to contain the name and address of the person or head of the organization responsible *1054 for the publication of the literature. The Court held that the Ohio statute violated the First Amendment because it burdened core political speech in a manner that was not narrowly tailored to serve an overriding state interest. Id. at ---- - ----, 115 S.Ct. at 1519-24. Stewart contends that this case is controlled by McIntyre. Stewart is correct.

[13] The Supreme Court made clear in McIntyre that campaign literature in support of a candidate for elective office is "core political speech" that is entitled to the fullest protection of the First Amendment.
Discussion of public issues and debates on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order to assure the unfettered interchange of ideas for the bringing about of political and social changes desired by the people. Although First Amendment protections are not confined to the exposition of ideas, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs, of course including discussions of candidates. This no more than reflects our profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open. In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential, for the identities of those who are elected will inevitably shape the course that we follow as a nation. As the Court observed in Monitor Patriot Co. v. Roy, 401 U.S. 265, 272, 91 S.Ct. 621, 625, 28 L.Ed.2d 35 (1971), "it can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office."
514 U.S. at ---- - ----, 115 S.Ct. at 1518-19 (internal quotations and citations omitted). When statutes and regulations burden core political speech, courts must apply "exacting scrutiny" when passing on the constitutionality of those laws and uphold them only when they are narrowly tailored to serve an overriding state interest. Id. at ----, 115 S.Ct. at 1519. See also Burson v. Freeman, 504 U.S. 191, 198, 112 S.Ct. 1846, 1851, 119 L.Ed.2d 5 (1992). The Ohio statute challenged in McIntyre, Ohio Rev.Code § 3599.09(A) (1988), like section 3-9-3-2, required that all campaign signs disclose the name of the person or the name of an official of the organization responsible for issuing or making the sign. [FN6] The Court found the state's putative interest in preventing fraudulent and libelous statements and in providing the electorate with relevant information did not justify the Ohio statute's ban on anonymous campaign literature, because the statute's strictures applied to all campaign literature, not just the misleading, fraudulent, or libelous. Id. at ---- - ----, 115 S.Ct. at 1519- 22. As with the Ohio statute, section 3-9-3-2 also makes no distinction among the various types of campaign literature that would narrowly tailor the statute's requirements to the furtherance of a legitimate state goal or interest. Section 3-9-3-2 applies to all campaign literature not specifically exempted on the basis of impracticality in subsection (c) of the provision. [FN7] The statute *1055 burdens dissemination of campaign literature that is informative as well as misleading, innocuous as well as libelous, truthful as well as fraudulent. Therefore, we find that section 3-9-3-2 is not narrowly tailored to meet a compelling state interest.

FN6. The Ohio statute provided in pertinent part:
No person shall write, print, post, or distribute, or cause to be written, printed, posted, or distributed, a notice, placard, dodger, advertisement, sample ballot, or any other form of general publication which is designed to promote the nomination or election or defeat of a candidate, or to promote the adoption or defeat of any issue, or to influence the voters in any election, or make an expenditure for the purpose of financing political communications through newspapers, magazines, outdoor advertising facilities, direct mailings, or other similar types of general public political advertising, or through flyers, handbills, or other nonperiodical printed matter, unless there appears on such form of publication in a conspicuous place or is contained within said statement the name and residence or business address of the chairman, treasurer, or secretary of the organization issuing the same, or the person who issues, makes, or is responsible therefor.
Ohio Rev.Code § 3599.09(A) (1988); McIntyre, 514 U.S. at ---- n. 3, 115 S.Ct. at 1514 n. 3.

FN7. Indiana Code section 3-9-3-2(c) states:
This section does not apply to business cards, tickets, bumper stickers, campaign buttons, pens, pencils, or other campaign items where identification is impractical because of the size or shape of the item.

Defendants contend that the facts of this case are distinguishable from the facts of McIntyre in three respects. Defendants' distinctions, however, are immaterial. First, Defendants note that Stewart is a candidate for elective office whereas the plaintiff in McIntyre was merely "a private citizen attempting to influence a bipartisan public issue." (Def.'s Resp. Br., p. 5) The Supreme Court's discussion of the First Amendment right to engage in anonymous political expression in McIntyre clearly identified this right as belonging to candidates for political office. We repeat the Supreme Court's observation in McIntyre that "it can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office." Id. at ---- - ----, 115 S.Ct. at 1518-19 (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272, 91 S.Ct. 621, 625, 28 L.Ed.2d 35 (1971)). See also Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 223, 109 S.Ct. 1013, 1020, 103 L.Ed.2d 271 (1989) ("the First Amendment 'has its fullest and most urgent application' to speech uttered during a campaign for political office").

Second, Defendants note that Stewart's placard was displayed on the day of the primary while Mrs. McIntyre's leaflets were distributed some days before the referendum vote. Neither the Ohio statute nor the current Indiana statute, however, contains any time limit or otherwise makes any exception to the scope of its proscription on the basis of when the anonymous campaign literature is disseminated. Indeed, Defendants' argument is specifically refuted in McIntyre where the Court found the Ohio statute not sufficiently tailored to meet the state's interest in avoiding eleventh-hour fraud because "[i]t applies not only to leaflets distributed on the eve of an election, when the opportunity for reply is limited, but also to those distributed months in advance." Id. at ----, 115 S.Ct. at 1521.

Defendants' last distinction is that Stewart was displaying a placard while Mrs. McIntyre was distributing leaflets. Defendants, however, are creating a distinction that the Court's opinion in McIntyre does not even adumbrate. As stated above, the Supreme Court's discussion of anonymous political expression specifically finds its value to campaigns for political office as great if not greater than its value to referenda.

Defendants next contend that even if section 3-9-3-2 is subject to the exacting scrutiny called for by McIntyre, Indiana has narrowly tailored the statute to a legitimate state interest in "insuring fundamental fairness in the voting process." (Def.'s Resp.Br., p. 7) Defendants, however, do not explain how the statute is narrowly tailored to promote that interest. Seeking some support for the measure, Defendants compare section 3-9-3-2 to a Tennessee statute prohibiting election campaigning within 100 feet of a polling place, which the Court upheld in Burson v. Freeman, 504 U.S. 191, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992). In Burson the four-justice plurality that applied the exacting-scrutiny standard specifically found that "some restricted zone is necessary in order to serve the States' compelling interests in preventing voter intimidation and election fraud." Id. at 206, 112 S.Ct. at 1855. The Court further found that a campaign-free zone with a 100-foot radius mandated by the Tennessee statute was sufficiently tailored to meet the state's goal. In contrast to that finding, the Supreme Court in McIntyre specifically found the Ohio statute, which is directly analogous to section 3-9-3-2, not narrowly tailored to further the same state interests identified by Defendants. In light of the Court's holding in McIntyre, Defendants' reliance on Burson is clearly misplaced.

The Supreme Court opinion in McIntyre leaves little doubt that, as a matter of substantive law, a blanket prohibition of anonymous political speech in the context of a campaign for elective office is unconstitutional. As the Court stated, a blanket prohibition such as was mandated by the invalidated *1056 Ohio law and such as section 3-9-3-2 currently mandates
encompasses documents that are not even arguably false or misleading. It applies not only to the activities of candidates and their organized supporters, but also to individuals acting independently and using their own modest resources. * * * It applies no matter what the character or strength of the author's interest in anonymity.
Id. at ---- - ----, 115 S.Ct. at 1521-22 (footnote omitted). In a footnote, the Supreme Court approvingly quoted People v. White, 116 Ill.2d 171, 180, 107 Ill.Dec. 229, 233, 506 N.E.2d 1284, 1288 (1987), in which the Illinois Supreme Court struck down an Illinois statute analogous to section 3-9-3-2: Implicit in the State's ... justification is the concern that the public could be misinformed and an election swayed on the strength of an anonymous smear campaign to which the candidate could not meaningfully respond. The statute cannot be upheld on this ground, however, because it sweeps within its net a great deal of anonymous speech completely unrelated to this concern. In the first place, the statute has no time limit and applies to literature circulated two months prior to an election as well as two days before.

This page is powered by Blogger. Isn't yours?