Tuesday, August 17, 2004
here's a page or so. i'll put the rest in this blog with a date of july 4th, so it's not crowding out the top.
see also 934 fsupp2d 1040
United States District Court,
Robbin STEWART, Plaintiff,
v Sarah TAYLOR
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 (missing?)
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
 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 (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).
 "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).
 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 ...
Monday, August 16, 2004
Appeals court strikes down Nevada campaign law
By Cy Ryan <firstname.lastname@example.org>SUN CAPITAL BUREAU
CARSON CITY -- A federal appeals court Friday struck down a Nevada law that required political pamphlets and campaign publications to contain the names of those who financed them.
The 9th U.S. Circuit Court of Appeals said the law "is facially unconstitutional because it violates the Free Speech Clause of the First Amendment" in a case brought by the American Civil Liberties Union of Nevada.
The court, in a decision written by Judge Marsha S. Berzon, said Nevada's law is overly broad because it applies to all publications in an election and there is no time limit when it should apply.
The decision overturns the ruling of U.S. District Judge David Hagen of Reno, who found the law was valid. The appeals court also refused the argument of the state, on behalf of Secretary of State Dean Heller, that the case should be referred to the Nevada Supreme Court.
The law was first invoked in the case of public relations executives Tom Skancke and Mark Brown of Las Vegas and Station Casinos, who were accused of distributing some 39,000 anonymous campaign fliers criticizing Clark County Commissioner Lance Malone for voting to support a casino in southwest Las Vegas that he had earlier pledged to oppose. That casino had been opposed by Station Casinos.
Brown was a vice president at Station and Skancke was on contract with the casino company.
Malone was defeated in the primary election in 2000.
Civil suits were filed by the secretary of state's office. An out-of-court settlement was reached in which Skancke paid a $3,500 fine and Brown and Station each agreed to pay a $5,000 penalty to the secretary of state's office. Station Casinos also agreed to pay a $450,000 penalty to the state Gaming Control Board for failing to properly supervise Brown.
When informed of the 9th Circuit's decision, Skancke quipped, "Do I get a refund?"
He said the appeals court "has upheld the original considerations and premises of the U.S. Constitution and that their (the 9th circuit) ruling has upheld the First Amendment and our freedom of expression in our culture and in our politics."
He said the ruling is "bigger than the Lance Malone mailer. It is about what we do every day."
Brown could not be reached for comment.
Gary Peck, executive director of the ACLU for Nevada, said, "We have not had a chance to read and analyze it but it seems it is a victory for the First Amendment. We are certainly heartened by that."
Allen Lichtenstein, a lawyer for the ACLU of Nevada, said "This is an important ruling in light of the upcoming political season. The court reiterates the point of the need for free and unfettered discussion."
"There's nothing in the decision that talks about retroactivity," Lichtenstein said when asked whether the previous fines imposed could be refunded.
"The decision makes a distinction between the reporting of contributions and putting your name on a document being circulated," he said.
Nevada laws requires political contributions to be reported.
The secretary of state's office withheld immediate comment until it had a chance to study the 41-page opinion.
The law requires that campaign materials must identify the persons paying for their publication. There are exemptions if a candidate or political party pays for billboards, signs or other advertisements referring to that candidate. It also exempts a person who acts independently and not in cooperation with any business or social organization.
The law was enacted to prevent anonymous smear tactics in a campaign.
The ACLU brought suit in behalf of Peck, who said the group's members wanted to engage in anonymous speech in an upcoming city of Las Vegas referendum concerning pay raises for the City Council and mayor and a ballot initiative of North Las Vegas concerning public comment at council meeting.
The ACLU said it wanted to produce and distribute anonymous political fliers on various initiatives in the 2002 election "but did not for fear of prosecution" under the law.
The appeals court said the Nevada law applies to material or information "relating to an election, candidate or any question," a description that is overbroad. For instance, the court decision said the state law could apply to clearly constitutionally protected discussions of election procedures, analyses of polling results and nonpartisan get-out-the-vote drives.
The state attorney general's office, which represented Heller, argued that the law is narrowly tailored to protect candidates from unscrupulous attacks by requiring those who seek to mislead the public to disclose their identities.
The appeals court said, however, this law affects far more speech than just some misleading comments.
Judge Berzon also noted inconsistencies in the law. She said an anonymous flier created by a single rich individual for $1 million is permitted while a small group raising a few hundred dollars for an anonymous political flier would be breaking the law.
The appeals court said, however, that the state might be able to craft a law that could achieve its goal. "As we have developed, Nevada's statute is particularly ill-designed for this purpose.
"An on-publication identification requirement carefully tailored to further a state's campaign finance laws, or to prevent the corruption of public officials, could well pass constitutional muster," the ruling said. "Nevada's statute, however, is simply not a viable example of such legislation."
APPEALS COURT RULING: Campaign literature law tossed
Judges: Statute banning anonymous distribution violates ConstitutionBy ED VOGEL REVIEW-JOURNAL CAPITAL BUREAU
A mailer sent to residents in Clark County Commissioner Lance Malone's district in March 2000 failed to identify the sender. The 9th U.S. Circuit Court of Appeals ruled Friday that a Nevada statute that prohibited anonymous campaign materials was unconstitutional.REVIEW-JOURNAL FILES
CARSON CITY -- The 9th U.S. Circuit Court of Appeals in San Francisco on Friday threw out a 1997 state law that prohibited distribution of anonymous campaign literature.
"Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind," stated Judge Marsha Berzon in the 41-page decision. "Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all."
Berzon noted that the Federalist Papers, which were published to muster support for the U.S. Constitution, were distributed anonymously.
The case originated with anonymous fliers sent to 39,000 Las Vegas households in 2000 that showed a cartoon of then-Clark County Commissioner Lance Malone with cash stuffed in his pocket, shirts sleeves and shoes. The caption read "You Just Can't Trust Lance Malone."
Later it was revealed the flier was sent out by Station Casinos and its then-Vice President Mark Brown. Station Casinos was fined $475,000 over the flier by the Gaming Control Board. It also made an undisclosed settlement to Malone to end a libel case.
The flier was sent out after the commissioner reversed his position and supported construction of a Spring Valley neighborhood casino that would have competed with Station Casinos properties. The casino was never built. Malone blamed the flier for his subsequent election defeat.
Brown and Station Casinos agreed in 2002 to pay $10,000 to end state litigation over breaking the anonymous campaigning law. Each was fined $5,000.
Political consultant Tom Skancke, who worked with Brown on the flier, paid a $3,500 fine to end litigation brought against him.
Late Friday, he said he was was thrilled by the ruling. "The decision is my vindication. Anonymous free speech is allowed. It is exactly what the founding fathers set up the Constitution to be."
Skancke added he does not know if he has any legal right to get his money back, but said regardless, the victory will have ramifications for election campaigns.
Brown did not immediately return phone calls seeking comment.
U.S. District Judge David Hagen had ruled in 2001 that the law did not violate the Bill of Rights, contending the state's desire to have "clean" political campaigns outweighed free speech considerations.
But the American Civil Liberties Union moved to challenge the constitutionality of the law. And on Friday, two years and three months after hearing the case, Judges Berzon, Procter Hug Jr. and James Browning threw out the law.
Senate Majority Leader Bill Raggio, R-Reno, who was a leading backer of the 1997 law, was disappointed by the decision.
"We were attempting to prevent scurrilous campaign material and hold someone responsible for it," said Raggio in a phone interview from Alaska. "If you are willing to say something about someone, you ought to be willing to tell you said it."
The law was approved after a rancorous state Supreme Court campaign between Bob Rose and Myron Leavitt.
Assembly Elections Committee Chairwoman Chris Giunchigliani, D-Las Vegas, hailed the court's decision. She said she has been trying for two legislative sessions to repeal the anonymous campaign law and a law that designates the state Ethic Commission to serve as a campaign truth squad.
"None of us care for negative campaigns, but I don't think you can violate the constitutional right of free speech to stop them," she said.
ACLU lawyer Allen Lichtenstein said Friday the best response to negative campaigning is more speech, not limits on speech. He noted the state's anonymous campaign law goes beyond election campaigns and would limit speech in many instances.
"The desire to control speech in political campaigns does not and cannot trump First Amendment rights," added Lichtenstein who argued the case before the Appeals Court.
Lichtenstein said there has been horribly negative campaigning in America dating back to the John Adams-Thomas Jefferson presidential race in 1800.
"Their campaign matched or exceeded anything we see today," he said. "The answer now as then, is more speech, not less speech."
State ACLU Executive Director Gary Peck called the decision a victory for everyone who supports free speech.
"We have been saying all along the best antidote to bad speech is good speech," Peck said.
posted at 09:50 by Howard Bashman
"I tell people, whoever you think is not going to read your Web site will find your Web site," Armstrong says. "They specifically will find it and read it, and all hell will break loose."
from a wapo story about a hill girl who gets wonketted, wound up in playboy with a book deal.
Finally catching up on Howard's How Appealing, I noticed that John Gilmore's suit, Gilmore v. Ashcroft, has been filed in the 9th circuit.
Is it unlawful to require that passengers on commercial airline flights show identification before being allowed to travel? The case of Gilmore v. Ashcroft, which is now pending on appeal before the U.S. Court of Appeals for the Ninth Circuit, presents that issue. You can view the brief for appellant, filed today, at this link. And you can learn more about the case via this link.
posted at 14:24 by Howard Bashman
He relies on several grounds, anonymity under the first A, right to travel, fourth amendment violation. I unpacked the pdf into a word file. My computer crashed so i may have to go do that again. Can't blame microsoft, something came unplugged. Here is the wired article. http://www.wired.com/news/privacy/0,1848,64599,00.html?tw=wn_tophead_4
What I'd like to do is put out a call for an open source amicus brief supporting Gilmore. Several such have already been filed. Being part of a larger effort would avoid some of my particular limits and challenges, and might get my feet wet at being active again.
I have in mind to check the cyberia-l list (which is not what it once was) and to see if the Berkman center's openlaw project is still functioning.
In some ways, this would be a distraction from other aspects of my life, stuff that is personally pressing. I need to get a job, I need to attend to stuff like getting the laundry done.
But, John is someone I know, and have talked about this stuff with.
He's right, and he has a case that is both good and important.
I'm already involved; the leading Ninth Circuit decision on First Amendment anonymity is ACLU v. Heller, which focuses in detail on Majors v. Abell, the case I lost in the 7th circuit.
John would be a potential asset in where I'd like to go next -
revive the Griset issue, seek an injunction as to the regulation at issue in Griset.
If that wins, could then take on the FEC 318 issue, using the 9th circuit as a friendly forum.
There are some memos I could write to flesh out that idea.
Steps along the way:
recover the brief, find the Howard article, revise this post.
Check the status of the Berkman Center project.
Catch up on the cyberia-l list.
Draft a memo to john's lawyers.
Keep Bill Stewart informed.
Check EFF page to see what they are doing on it.
Draft a memo linking Majors v. Abell with ACLU v. Heller to Gilmore v. Ashcroft,
with a bit of (the texas cowboy case - at least required a terry stop.)
Look for connections with the right to travel aspect as being expressive conduct. how that relates to due process, standard of scrutiny, O'brien test, and the Indiana research I'm doing on that.
Look for privileges and immunities aspects that would make the case appealing to the institute for justice.
Return mail to (that guy from ohio, fundraiser for Paul plaintiffs in McConnell.)
Maybe touch base with McConnell's office re secret laws - could a senator find out some of the issues in discovery?)
So, between Heller, and active cases like Gilmore, I'm beginning to feel back in the game, a little.
In Stewart v. Taylor, I was the plaintiff, rather than the lawyer. Maybe that's the right role for me. This post gives me a jumping off place, work to do, a book's worth of stuff to write.
As I've been telling heidi, the jump from a blog to a book is small leap. Take a blog, self-publish one copy via cafe press, shop that around to small presses, (think Rounder records and George Thoroughgood - a small press can break a major artist.) On the other hand, think of George, the crazy guy who comes to bread not bombs, who thinks his crazy writings are of value. Don't be him. Or do be him; George works for a living, supports the cause, manages his anxieties, gets published; he's doing more than i am.
This is the danger of blogging on the fly. perhaps some carefully craft their blog posts off-line and postt hem when they are satisfactory. Most of us blog out loud, fingers to keyboard, minor editing here and there. I want to hit post now, soon, and update later or revise.
So that's what I'll do.
I used this tool to convert from pdf to text.
The decision in Majors v. Abell (Majors I), 317 F. 3d 719 (7th Cir.
2003), certifying a question to the Indiana Supreme Court is consistent
with our analysis. In Majors I, a case in which the state of Indiana advocated
a narrowing construction, the Seventh Circuit agreed to certify a
question concerning statutory language. Id. at 724-25. The statute "re-quires
that political advertising that 'expressly advocat[ es] the election or
defeat of a clearly identified candidate' include 'adequate notice of the
identity of persons who paid for . . . the communication. ' " Id. at 721
(alteration in original). Confronted with the issue of whether the term
"persons" is "limited to candidates, authorized political committees or
subcommittees of candidates, and the agents of such committees or sub-committees,"
id. at 725, the Indiana Supreme Court declined to adopt such
a narrowing construction: "If we construe the statute as the State suggests,
we agree it removes most doubt as to the constitutionality of the statute,
but we think it also eliminates most of what the statute was seeking to
accomplish." See Majors v. Abell, 792 N. E. 2d 22, 29 (Ind. 2003). As a
result, the Seventh Circuit, in the end, did have to decide the constitutionality
of the statute at issue in Majors II. See Majors v. Abell (Majors II),
361 F. 3d 349, 355 (7th Cir. 2004). Certifying a statutory question to the
state Supreme Court when the statute was not fairly open to the proffered
interpretation thus accomplished nothing but delay.
Because the notice requirement applies even if the expenditure merely paid for vanilla advertisements advocating
"Vote for Smith," or "Freedom Lovers for Jones Ð Re-elect Our Senator," § 16-917( A) burdens innocuous speech that does not even implicate the statute's stated purpose. Arizona Right to Life Political Action Committee v. Bayless at 1012, (citing Grossman v. City of Portland, 33 F. 3d 1200, 1207-08 (9th Cir. 1994)).
In Majors II, the Seventh Circuit upheld the constitutionality of an Indiana statute prohibiting anonymous campaign literature.
The statute requires advertising that "expressly advocat[ es] the election or defeat of a clearly identified candidate"
to include "adequate notice of the identity of persons who paid for . . . the communication." 361 F. 3d at 350 (quotation
marks and citation omitted). Elements of Majors II may be read to be inconsistent with our opinion.
In particular, the Majors II majority fails to accord sufficient significance, in our view, to the distinction we regard as
determinative between a prohibition of the circulation of communication based on its content and a requirement that the
financing of election-related communications be separately reported. While Majors II noted "the distinction the Supreme
Court has drawn between 'disclosure' (reporting one's iden-tity to a public agency) and 'disclaimer' (placing that identity in the ad itself)," id. at 354, it did not discuss the conceptual
distinction for First Amendment purposes between a regula-tion
that alters a communication and one that does not. Nor
did Majors II give any weight to the Supreme Court's distinc-tion,
concluding instead Ð incorrectly, we believe Ð that
there is no meaningful difference with regard to the protection
of anonymous speech between a requirement that the identity
of the publisher be revealed later and in less detail and a
requirement that identifying information be included on the
communication itself. See id. at 353 (" Like the Indiana stat-ute,
the provision of the Bipartisan Campaign Reform Act that
the [McConnell] Court upheld requires identifying any person
who contributes to the making of the ad, even if the person
is not a candidate or part of the candidate's campaign staff.
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 informa-tion,
' the identity of the contributor is available to the public
rather than secreted by the FEC." (Citation omitted)). But see id.
at 357 (opinion of Easterbrook, J., dubitante) (" The major-ity
in McConnell emphasized that the disclosure to the agency
did not include the content of the advertisement. In Indiana
. 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." (Internal citation omitted)).
We recognize that the distinction we stress may at first
glance appear fine cut. But, as McIntyre, Buckley v. American Constitutional Law Foundation,
and our decision in Califor-nia Pro-Life Council
discuss at some length, there is a difference
of constitutional magnitude between mandatory
identification with a particular message at the time the message
is seen by the intended audience and the more remote,
specific disclosure of financial information that, as McIntyre
itself recognized, "is a far cry from compelled self-identification
on all election-related writings." 514 U. S. at
10490 ACLU v. HELLER 40
40 Page 41
This disagreement regarding the significance of McIntyre aside, the result in Majors II (and in the cases upon which it
principally relies 14 ) does not clash with ours. As Majors II recognizes, the statute in McIntyre covered speech concerning
ballot questions, while the statute in Majors II does not. 361 F. 3d at 351. Majors II posited that after McConnell, McIntyre
is limited to statutes precluding anonymous speech regarding ballot questions. See id. at 353-54. While, for the reasons
already stated, we are not convinced that McConnell so narrowed McIntyre, if it did, the Nevada Statute falls on the
McIntyre side of the line and, even on Majors II's analysis,
 Nevada has not met its burden under strict scrutiny of distinguishing its statute from that held facially unconstitutional
in McIntyre. Section 294A. 320 reaches far more core political speech than is necessary to achieve the state's other-wise
legitimate interests, and advances those interests poorly if at all. We therefore VACATE the district court's grant of
summary judgment and REMAND for further proceedings consistent with this opinion.
VACATED AND REMANDED.
14 See Majors II, 361 F. 3d at 354-55 (" A statute quite like the Indiana
statute was . . . upheld in Gable, [142 F. 3d at 944-45] . . . and Kentucky
Right to Life, Inc., [108 F. 3d at 646-48].").
10491 ACLU v. HELLER 41
Sunday, August 15, 2004
Office of the Attorney General
State of Nevada.
Dear Ms. Cavin,
We talked before, it's probably been several years now, about what the State of Nevada's policies were while we waited for an opinion in ACLU v. Heller, regarding anonymous speech.
You were very helpful in sending me the briefs and other filings.
It was my position at the time that such speech is a constitutional right, well established by Talley and McIntyre.
It was your position that you would rely on the lower court opinion until a decision.
We have each received some validation for our respective positions.
I am writing to see how things stand now.
Does the AG's office plan any further steps, or is the litigation complete?
Has the policy been changed to account for the court's ruling?
What is the current policy?
Were there any enforcement actions taken under the apparent authority of the statute?
Has the status of those cases changed now?
If the case becomes final, and there are further procedings such as resolution of costs and fees, I would welcome
being kept in the loop. Similarly, if there additional motions or filings, I would like to recieve copies.
Email works best, or snailmail to (the same address) is fine.
I have a few specific questions in mind that I may follow up with later, but felt I should touch base first and find out where things stand.
Thanks in advance for your continued assitance.
I am assuming this is still on your desk; feel free to pass it to someone else if that responsibility has changed.
2d, I have filed a motion with the Indiana Supreme Court, in which I argue for fees based on dispositive narrowing construction under Farrar v. Hobby.
I’m confident it will be denied, since jurisdiction lies mainly with the 7th circuit, which has denied that issue, but it’s a last desperate shot.
I will have more comments especially if I can find a non- pdf version of Heller.
A few scattered thoughts:
They do a good job of demolishing the state’s argument that an exception for individuals is saving. But there’s an easier answer – McIntyre represented a group of at least three or four. Parents and Taxpayers. This implies at least two parents and at least two taxpayers, perhaps she and her husband. Her son and his girlfriend were also participants.
They make fun of the certification to state court, pointing out that in Majors all it did was slow things down. They, as so often happens, misconstrue Doe v. Mortham as a win, where it was part loss, part tie.
They get right the distinction between disclaimers and reporting, and ACLF as the case law pinning that down.
They rely on two cases for standing that rely on Majors I.
What they call Majors II, I would call Majors III. District court: Majors 0. Was there a cite for that? Posner 2003 – I Boehm 2003 – II. Posner 2004 –III.
Do I have the westlaw password handy? (not to be blogged.)
Three potential state interests are discussed and rejected.
Information – rejected in McIntyre.
Campaign libel – not narrowly tailored.
Further disclosure – poor fit, overbroad, unnecessary .
Attempt to distinguish majors in that Majors is candidate only, and here there was speech related to ballot measure. But it’s not a difference that makes a difference, and they make it clear they disagree with Majors.
Write demand letter to NV AG requesting return of the $450,000.00 to Station Casinos.
Draft of a hardball letter:
This is a draft. This is stream of consciousness thinking out loud. Any actual letter would be far more nuanced. I generally send a softball letter first, to which they respond with a smoking gun letter, admitting the course of conduct I seek to prove, then I send a second letter, explaining the problem, suggesting corrective action. When they blow that of, I send the hardball letter.
The fine against Station Casinos was unauthorized by law and was a violation of civil rights to free speech and free elections, under the US and Nevada Constitutions. As a person who engages in express advocacy about Nevada politicians, and whose speech has been chilled by such a huge fine, I have standing to raise the issue. Station Casinos has settled the case and waived its rights to challenge the fine, but I have not. Issue – retroactivity? Statute of limitations? The statute has only just now been authoritatively found to have been unconstitutional all along. The case is not yet final; perhaps some motion for rehearing or petition for cert will follow. We can engage in some preliminary discussions now. I am unwilling to be stalled. This is a rough draft.
Dear Nevada Attorney General,
Several years ago I contacted your office with reference to (Peck?) and ACLU v. Nevada, the anonymous speech case, asking what your current enforcement policy was. I was told that you were continuing to enforce the statute, in violation of rights clearly established by McIntyre, relying on the erroneous lower court opinion. Your staff was helpful in sending me the briefs and filings, for which thanks. Since at that time the case had been fully briefed and was awaiting decision, I chose not to intervene, not wanting to be the source of any further delay. Richard Winger of Ballot Access News brought to my attention that the case has been decided, and today I read that decision with great interest.
As lead counsel in Majors v. Abell, I am firmly in support of the court’s reasoning and holding. I am writing today in reference to the Station Casinos case. I had not known what the status of that case was; the settlement was unreported or escaped my notice.
According to the 9th Circuit, the statute which was your apparent authority for the fine is unconstitutional. This means that it was void ab intitio, not just as of 8/5/04. A fine of $450,000 for engaging in constitutionally protected speech has an effect far beyond the particular parties involved. As a person in Indiana, who has used and will use the Internet to advocate the election of candidates in Nevada, such as James Dan, or, in a federal election, Michael Cloud, who doesn’t use disclaimers, and who is unable to afford the minor fines I get for parking or licensing fees, the prospect of such fines is severely chilling. In order to cure the chilling effect I have experienced, I require you to refund the $450,000 to its rightful owner.
I do not expect that you will be persuaded by a single letter on my part. I am accustomed to being laughed and scoffed at, at first. I have just spent 8 years litigating this issue in Indiana, as well as litigating in Delaware and participating in FEC deliberations. Some of the time, I lose. Occasionally, I win a round. Stewart v. Taylor (1997), for example. “Stewart contends that McIntyre is controlling. Stewart is correct.” I appeal, firstly, to your sense of ethics and propriety. To retain money obtained by unlawful means in violation of civil rights, even if there was some apparent authority at the time, would create an appearance of impropriety.
When I began this struggle, in Missouri in 1992, I was opposed by William Webster, the state Attorney General, and by Roy Blunt, the Secretary of State. Webster went to jail; Blunt went to congress. I worked on the Tobin case in Illinois, in which Jim Ryan misused his office as secretary of state to keep his opponent off the ballot. Ryan won the race and brought shame to his party as dozens of his underlings were convicted. President Clinton was impeached, reelected, and disbarred. Nevada has its own unique legacy of appearance of corruption. The facts of this case involve, in my analysis, unlawful extortion of a large sum of money by a public official from a casino owner. I would think the issue of appearance of impropriety arises. In addition to being a lawyer, I’m a bit of a muckraking journalist and author. I’d be willing to go to great lengths to make an issue out of this, if absolutely necessary. Perhaps I’m getting way ahead of the game. My undergraduate training was in governmental ethics. I am appealing to your sense of ethics, in both the normative and descriptive senses of the term. Refunding the fine against the casino is the right thing to do, morally. It is also the right thing to do, tactically. Legal ethics, as I was taught in law school, is not about right and wrong, but about what you can get away with. Some behaviors raise red flags, and should be avoided. Retaining a fine after settlement, when your authority for the fine turns out to be unconstitutional, and is oppressive to unrepresented parties, is such a case. You had reason to know at the time, based on Talley and McIntyre, that the disclaimer statute was unconstitutional and void. The victim of your extortion settled, and waived their right to contest it. But I have standing to raise the issue, and I intend to.
Perhaps in the courts, perhaps as a criminal referral, perhaps to various ethical boards with jurisdiction, perhaps just as a matter of public opinion.
I have no dog in this hunt. I have no financial interaction with Station Casinos. My concern is that the State of Nevada cease chilling free speech by retaining an inappropriately obtained fine, so huge that it has a chilling effect felt across the country.
I am writing partly to update my earlier inquiry, to find out how and whether your policies have changed in light of the decision.
I have a wide range of options. I could sigh and do nothing. I have other projects that require attention. I could litigate. I just spent 8 years doing that and by the end it wasn’t as much fun as I’d planned. We could work something out cooperatively. I’m open to mediation, formal or informal process to resolve this dispute in a way that works for both of us. Just for example, if, with the approval of Station Casinos, the money were given to the ACLU in satisfaction of their costs and fees in this case, I’d be satisfied.
I could concentrate on the publicity aspects, writing press releases and articles and a book and working on a documentary. I could retain, on a speculative basis, lobbyists, people who know how to cut deals. I could engage in low intensity partisan guerilla operations, or global thermonuclear war. These are only options. I have reached no firm decision on what my course of conduct will be. One of my ancestors, a Peter Ankeny, pledged his life, fortune and sacred honor, and participated in the American revolution, and I try to be true to his spirit.
It is my hope that my appeal to your sense of ethics will be enough, and that I will be hearing from you soon that the fine will be promptly refunded.
players” alan lichenstein, jonell Thomas plaintiffs.
D’s: Kateri Cavin, V. Oldenburg, Paul Taggart.Kateri is the one I talked to.