Wednesday, April 15, 2015
The Supreme Court has consistently held that "an author's decision to remain anonymous . .
. is an aspect of the freedom of speech protected by the First Amendment." McIntyre v. Ohio
Elections Comm'n, 514 U.S. 334, 342 (1995). See also Buckley v. Am. Constitutional Law Found.,
525 U.S. 182, 200 (1999); Talley v. California, 362 U.S. 60, 65 (1960).
Sedersten v. Taylor, 2009 WL 4802567 (W.D. Mo. Dec. 9, 2009)
http://www.dmlp.org/sites/citmedialaw.org/files/2009-12-09-Order%20Denying%20Motion%20to%20Compel.pdf
Additionally, while applying this standard, the Court must keep in mind other First Amendment principles, such as the strict scrutiny applied to restrictions on political speech.' See McIntyre, 514 U.S. at 346-47. The Supreme Court has long held that discussions centered around
governmental or political issues are the "core" or "essence" of the First Amendment and therefore restrictions on such speech must be "narrowly tailored to serve an overriding state interest." Id. Keeping the strict scrutiny of political speech restrictions in mind, the Court finds this is not the exceptional case that warrants disclosure of an anonymous speaker's identity. Id.
Sedersten v. Taylor, 2009 WL 4802567 (W.D. Mo. Dec. 9, 2009)
http://www.dmlp.org/sites/citmedialaw.org/files/2009-12-09-Order%20Denying%20Motion%20to%20Compel.pdf
Additionally, while applying this standard, the Court must keep in mind other First Amendment principles, such as the strict scrutiny applied to restrictions on political speech.' See McIntyre, 514 U.S. at 346-47. The Supreme Court has long held that discussions centered around
governmental or political issues are the "core" or "essence" of the First Amendment and therefore restrictions on such speech must be "narrowly tailored to serve an overriding state interest." Id. Keeping the strict scrutiny of political speech restrictions in mind, the Court finds this is not the exceptional case that warrants disclosure of an anonymous speaker's identity. Id.
Sunday, April 12, 2015
United States Court of Appeals
For The Eighth Circuit
Thomas F. Eagleton U.S. Courthouse
111 South 10th Street, Room 24.329
St. Louis, Missouri 63102
Michael E. Gans
Clerk of Court
VOICE (314) 244-2400
FAX (314) 244-2780
www.ca8.uscourts.gov
March 30, 2015
Mr. Anthony E. Rothert
AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION
454 Whittier Street
Saint Louis, MO 63108-0000
RE: 15-1645 John Doe v. Charles Weedman, et al
Dear Counsel:
The district court clerk has transmitted a notice of appeal in this matter, and we have
docketed it under the caption and case number shown above. Please include the caption and the
case number on all correspondence or pleadings submitted to this court.
Counsel for the appellant has stated that an Emergency Motion will be filed in the
appellate case upon docketing. Once the motion is filed, the case will be submitted to the court
for review.
Counsel in the case must supply the clerk with an Appearance Form. Counsel may
download or fill out an Appearance Form on the "Forms" page on our web site at
www.ca8.uscourts.gov.
On June 1, 2007, the Eighth Circuit implemented the appellate version of CM/ECF.
Electronic filing is now mandatory for attorneys and voluntary for pro se litigants proceeding
without an attorney. Information about electronic filing can be found at the court's web site
www.ca8.uscourts.gov. In order to become an authorized Eighth Circuit filer, you must register
with the PACER Service Center at https://www.pacer.gov/psco/cgi-bin/cmecf/ea-regform.pl.
Questions about CM/ECF may be addressed to the Clerk's office.
If you have any questions about the schedule or procedures for the case, please contact
our office.
Michael E. Gans
Clerk of Court
EDG
Enclosure(s)
Appellate Case: 15-1645 Page: 1 Date Filed: 03/30/2015 Entry ID: 4259548
Case 2:15-cv-04054-DW Document 26 Filed 03/30/15 Page 1 of 4
cc: Mr. Grant R Doty
Mr. John Andrew Hirth
Mr. Andrew McNulty
Ms. Ann Thompson
Ms. Gillian R. Wilcox
District Court/Agency Case Number(s): 2:15-cv-04054-DW
did today: looked up the TRO opinion and opp brief in john doe v weedman.
Defendants. )
ORDER
On March 27, 2015, the Court presided over a hearing on Plaintiff’s Motion for
Temporary Restraining Order (Doc. 2), Motion for Preliminary Injunction (Doc. 5), and Motion
for Leave to Proceed Under Pseudonym (Doc. 3). The purpose of this Order is to memorialize
the rulings made at the hearing. After considering the entire record and the arguments of
counsel, it is hereby ORDERED that:
(1) Plaintiff’s Motion for Temporary Restraining Order (Doc. 2), and Plaintiff’s Motion
for Preliminary Injunction (Doc. 5) are DENIED for the reasons stated by the Court at the
hearing and for the reasons stated in Defendants’ opposition brief (Doc. 17); and
(2) Plaintiff’s Motion for Leave to Proceed Under Pseudonym (Doc. 3) is DENIED.
IT IS SO ORDERED.
Date: March 27, 2015 ________/s/ Dean Whipple ______
Dean Whipple
United States District Judge
Friday, April 10, 2015
here's some notes i made toward an amicus in a missouri case.
Mulholland
v Marion County Election Board (7th
Circ 2014),
ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2014/D03-20/C:13-3027:J:Hamilton:aut:T:fnOp:N:1311081:S:0
UNITED
STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION
John
Doe,
Plaintiff,
v. No.
2:15-cv-4054
Charles
E. Weedman, et al.,
Defendants.
)
Amicus
Brief of Robbin Stewart
toc
contents
toc
cases
Interest
of Amicus Curiae:
I
hold a JD from U of Missouri-Columbia, 1993, and an LLM from UMKC,
1994.
While
I lived in Missouri I authored anonymous election flyers, held
appointed office, ran for local office, and was active politically. I
then moved to Indiana, where I was the plaintiff in Stewart v Taylor,
953
F. Supp. 1047 (S.D. Ind. 1997),
which found Indiana's disclaimer statute
unconstitutional. The court wrote “Stewart
contends that this case is controlled by McIntyre.
Stewart
is correct. 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.” I continue to advocate for
candidates and issues in Missouri, Indiana, and elsewhere, primarily
via the internet, without using disclaimers or otherwise letting the
government dictate the content of my speech.
Statement
of case:
Plaintiff,
with help from the ACLU, seeks to enjoin a statute, 130.031.8,
which makes it a criminal act to put up signs or flyers that say
“Vote for Smith” or the like, regarding the upcoming Ferguson
elections. The town of Ferguson has been the site of civil unrest
following a police killing,and it is hoped that free and open
elections will help channel this unrest into constructive paths.
Time
is of the essence as the election is soon. Although passage of the
election would not moot the issues in this case, irreparable harm
will result if the injunction is not granted.
Summary
of argument
I
Plaintiff has a very strong likelihood of success on the merits. A
long line of cases, controlling and persuasive, support plaintiff's
request.
II
Citizens United does not overrule McIntyre, and is inapplicable
here.
III State
cases show there is no state interest
Each
factor for injunctive relief is met.
Argument
I
Plaintiff should prevail on the merits. A long of cases, controlling
and persuasive, support plaintiff's request.
Controlling
cases include Talley, McIntyre, Buckley v ACLF and
Watchtower v Stratton.
This
court is obligated to follow these controlling precedents of the
Supreme Court, whether or not it likes those policy choices.
ShrinkMo
v Maupin, the leading Missouri
case in federal courts, addressed a more narrow question,and
did not reach the constitutionality of the disclaimer statute at
issue here, but applied McIntyre to strike down a statutory
provision that interfered with campaign speech.
Dozens
of decisions have reached the same conclusion. McIntyre is not
an isolated case limited to its facts, but is part of mainstream of
decisions which have found campaign speech protected against
government censorship.
Concurring
in McIntyre, Justice Thomas traces the origins of the First
Amendment and finds that anonymous political speech was a norm at the
time of the adoption of the constitution. John Peter Zenger's case,
(1735), was highly influential on the founders and led to both the
First and Seventh Amendments.
Zenger
was prosecuted for anonymously printing two books critical of the
king's administration. A jury refused to convict him. The First
Amendment was designed to protect speech like Zenger's, which is the
same sort of speech at issue in this case, anonymous discussion of
the government. Similarly the right to trial by jury was put into the
constitution as a check and balance of government oppressing people
like Zenger.
The
First Amendment protects many things, art literature poetry and
music, but its core function is enable debate about government,
especially in the election context. Missouri seeks to make certain
campaign statements a jailable offense. This is prohibited by the
First Amendment.
The
right to free speech includes a right to not have one's speech
compelled. Wooley v Maynard, Tornillo v Miami Herald, Riley v
Federation of the Blind, all establish this principle. Even if
Talley and McIntyre had never happened, these cases
would be enough to compel this court to grant the injunction.
Talley
v California, 1960, was the first case to rule specifically on
the issue of whether a state could require a disclaimer on political
literature. It found that to do so would violate the First Amendment.
Talley
is part of a trio of civil rights era cases, along with NAACP v
Alabama ex rel. Patterson (1958) and Bates v Little Rock
(1960) that found a right of privacy and a right of political
association.
Recent
events in Ferguson and Alabama show that the civil rights struggle is
a live issue. State authorities have resisted the ruling in Talley,
much as they have resisted the ruling in Brown v Board that
public schools must be desegregated, but there is no excuse in 2015
for allowing any further delay in complying with what the court ruled
in 1960.
The
issue presented in McIntyre was whether there is an “elections
exception” to the rule in Talley. The court found none,
ruling that strict scrutiny applies and Ohio's statute is
unenforceable and void. The Missouri statute must fall based on that
authority.
A
number of lower court cases have followed Talley or McIntyre.
ShrinkMo
v. Maupin, 892 F. Supp. 1246 (E.D. Mo. 1995), aff'd on other grounds,
71 F.3d 1422 (8th Cir. 1995), Citizens for Responsible Gov't State
PAC v. Davidson, 236 F.3d 1174, (10th Cir. 2000), Vt. Right to Life
Comm., Inc. v. Sorrell, 221 F.3d 376, 392 (2d Cir. 2000), ACLU v
Heller 378 F3d 979 (9th cir. 2004).
Here
is a chart, by year, of cases on disclaimers or related free speech
cases.
1961
United States v. Scott (D.N.D.) 195 F. Supp. 440 (1961)
1962
People v. Bongiorni, 205 Cal. App. 2d Supp. 856 (Sup. Ct. 1962)
1964
Canon v. Justice Court for Lake Valley, 61 Cal.2d 446, 39 Cal.Rptr.
228, 393 P.2d 428 (1964),
1968
Idaho v. Barney, 448 P.2d 195 (1968),
1969
Zwickler v Koota 389 U.S. 241 (1967), 290 F.Supp. 244, mooted 394
U.S. 103 (1969) sub nom Golden v Zwickler
1973
Opinion of the Justices, 306 A.2d 18 (Maine 1973)
1973
United States v. Insco, 365 F. Supp. 1308 (M.D. Fla. 1973)
1974
Miami Herald v. Tornillo, 418 U.S. 241 (1974)
1974
In re Opinion of the Justices, 324 A.2d 211 (Del. 1974)
1974
New York v. Duryea, 351 NYS2d 978 (1974)
1974
Printing Industries of the Gulf Coast v. Hill, 382 F.Supp. 8011
(S.D.Tx 1974), 42 L.Ed.26 33 dismissed as moot.
http://openjurist.org/422/us/937/hill-v-printing-industries-of-gulf-coast
1975
Dennis v. Massachusetts, 329 N.E.2d 706 (Mass. 1975),
http://masscases.com/cases/sjc/368/368mass92.html
1976
State of Louisiana v. Fulton, 3.37 So.2d 866 (La. 1976)
1977
Wooley v. Maynard, 430 U.S. 705 (1977)
1978
State v. North Dakota Educ. Ass'n, 262 N.W.2d 731 (N.D. 1978)
1980
Schuster v. Imperial County Mun. Ct., 167 Cal. Rptr. 447 (Cal. Ct.
App.
1980),
cert. denied, 450 U.S. 1042 45.
http://ca.findacase.com/research/wfrmDocViewer.aspx/xq/fac.%5CCA%5CCA2%5C1980%5C19800828_0040409.CA.htm/qx
1987
Illinois v. White, 506 NE2d 1284 (Ill. 1987)
http://il.findacase.com/research/wfrmDocViewer.aspx/xq/fac.%5CIL%5CIL2%5Carchp%5C1987%5C19870220_0000193.IL.htm/qx
1987
Wilson v. Stocker, 819 F.2d 943, 950 (10th Cir. 1987);
199x
N.Dakota v. N.D. Ed. Assoc., 262 N.W.2d 731
http://www.ndcourts.com/court/opinions/612.htm
1995
Louisiana. v. Moses, 655 So. 2d 779 (La. Ct. App. 1995)
1995
McIntyre v. Ohio, 514 U.S. 334 (1995)
http://www.law.cornell.edu/supct/html/93-986.ZO.html
1995
ShrinkMo v. Maupin, 892 F. Supp. 1246 (E.D. Mo. 1995), aff'd, 71 F.3d
1422 (8th Cir. 1995),
http://www.ca8.uscourts.gov/opndir/95/12/952857P.pdf
1996
W. Va. for Life, Inc. v. Smith, 960 F. Supp. 1036, 1042 (S.D. W. Va.
1996)
1997
Stewart v Taylor, 953 F. Supp. 1047 (S.D. Ind. 1997),
https://casetext.com/case/stewart-v-taylor
1997
ACLU of Georgia v. Miller, (977 F.Supp. 1228 (N.D.Ga 1997)
http://www2.bc.edu/~herbeck/cyberlaw.acluvmiller.html
1997
ACLU v. Reno, 117 S.Ct. 2329 (1997)
http://en.wikipedia.org/wiki/Reno_v._American_Civil_Liberties_Union
1997
ALA v. Pataki, 969 F.Supp 160 (1997)
http://www.loundy.com/CASES/ALA_v_Pataki.html
1998
Doe v. Mortham, 708 So.2d 929 (Fla.1998)
1998
Washington ex rel Public Disclosure v. 119 Vote No!, 957 P.2d 691
(1998)
1998
Riley v. Federation of the Blind, 487 U.S. 781 (1998)
http://laws.findlaw.com/us/487/781.html
1999
Buckley v. American Constitutional Law Foundation, 525 U.S. 182
(1999)
1999
Cyberspace v. Engler, 55 F.Supp.2d 737 (E.D. Mich 1999)
http://www.cyberspace.org/cyberspace/lawsuit/
1999
Griset v. Fair Political Practices Commission, 69 Cal. App. 4th 818,
82 Cal. Rptr.2d 25 (1999), reversed on other grounds, @(fuller cite
needed)
2000
Anonymous v. Delaware, 2000 Del. Ch. Lexis 84 (2000),
2000
Citizens for Responsible Gov't State PAC v. Davidson, 236 F.3d 1174,
2000 (10th Cir. 2000);
2000
N.C. Right to Life, Inc. v. Leake, 108 F. Supp. 2d 498, 510 (E.D.
N.C. 2000)
2000
Vt. Right to Life Comm., Inc. v. Sorrell, 221 F.3d 376, 392 (2d Cir.
2000);
2000x
Doe v. 2theMart, 140 F.Supp.2d
1088,http://cyber.law.harvard.edu/stjohns/2themart.html
2001
Melvin v Doe, 2001 Pa. Super. 33044 P.3d 1044 (2002)
2002
Tattered Cover v Thornton, 44 P.3d 1044 (Co. 2002)
2002
Free Speech Coalition, Ashcroft v., 535 U.S. 234 (2002
)http://www.law.cornell.edu/supct/html/00-795.ZS.html
2002
Ogden v Marendt 264 F.Supp.2d 785 (S.D. Ind. 2003)
http://fortune.com/2012/09/18/bad-to-the-bone-a-medical-horror-story/2003
Doe v. Texas, 2003 Tex. Crim. App. LEXIS 88 (Tex. Crim. App. May 14,
2003).
2004
ACLU v Heller 378 F3d 979 (9th cir. 2004)
http://openjurist.org/378/f3d/979/american-civil-liberties-union-of-nevada-v-heller
2004
ACLU v. Ashcroft, _ U.S. _ (2004),
http://en.wikipedia.org/wiki/ACLU_v._Ashcroft_(2004) see Doe v
Gonzales, 546 U.S. 1301 (2005),
2008
The Broward Coalition v. Browning (N.D. Fla. 2008)
2009
Michael James Berger, aka Magic Mike v. City of Seattle (9th Cir.
2009)
Freedom’s
Heritage v. FEC, FEC v. Freedom's Heritage Forum, No. 3:98CV-549-S
(W.D. Ky September 29, 1999). FEC v. FREEDOM'S HERITAGE FORUM, ET
AL.,March 28, 2002, August 14, 2003
2012
Hatchett v Barland, (E.D.Wi) , on appeal to 7th Cir.
Additionally,
at least 13 states have found disclaimer statutes to violate their
own state constitutions. Missouri is one of these.
1908
ex Parte Harrison, 110 S.W. 709 (Mo 1908)
1968
Idaho v. Barney, 448 P.2d 195 (1968),
1973
Opinion of the Justices, 306 A.2d 18 (Maine 1973)
1974
In re Opinion of the Justices, 324 A.2d 211 (Del. 1974)
1974
New York v. Duryea, 351 NYS2d 978 (1974)
1975
Dennis v. Massachusetts, 329 N.E.2d 706 (Mass. 1975),
http://masscases.com/cases/sjc/368/368mass92.html
1976
State of Louisiana v. Fulton, 3.37 So.2d 866 (La. 1976)
1978
State v. North Dakota Educ. Ass'n, 262 N.W.2d 731 (N.D. 1978)
1980
Schuster v. Imperial County Mun. Ct., 167 Cal. Rptr. 447 (Cal. Ct.
App.
1980),
cert. denied, 450 U.S. 1042 45.
http://ca.findacase.com/research/wfrmDocViewer.aspx/xq/fac.%5CCA%5CCA2%5C1980%5C19800828_0040409.CA.htm/qx
1987
Illinois v. White, 506 NE2d 1284 (Ill. 1987)
http://il.findacase.com/research/wfrmDocViewer.aspx/xq/fac.%5CIL%5CIL2%5Carchp%5C1987%5C19870220_0000193.IL.htm/qx
1995
Louisiana. v. Moses, 655 So. 2d 779 (La. Ct. App. 1995)
2002
Tattered Cover v Thornton, 44 P.3d 1044 (Co. 2002)
In
Ex Parte Harrison, an election official had been jailed after
publishing a neutral description of who was running, that did not
comply with a disclaimer requirement. The Missouri Supreme Court
released him, finding that speech about elections is protected under
the state constitution.
This
is the earliest case on disclaimers that I have found, and remains
good law.
Unfortunately,
plaintiff here does not rely on the state constitution, either the
free speech clause or the free and open elections clause. But
Harrison and the state constitution remain relevant to this
case. Under McIntyre, the standard of review is strict
scrutiny. To survive strict scrutiny, a statute must be narrowly
tailored and use least restrictive means to further a compelling
state interest. Here, the legislative interest may have been to deter
election-eve false libelous anonymous rumors, which are among the
'dirty tricks' sometimes used in campaigns. But the legislature's
interest in forbidding anonymous speech is not legitimate, much less
compelling, if it violates the state constitution, as construed in
Harrison by the Missouri Supreme Court. Nor, of course, is the
statute narrowly tailored to dirty tricks. It forbids advocacy such
as “Vote for Smith” or “Robbin Stewart for Township Board –
Vote Tuesday” which was the text at issue in Stewart v Taylor.
III
Citizens United does not overrule McIntyre, and is
inapplicable here.
Each
factor for injunctive relief is met.
In
Citizens United, the Supreme Court approved a disclaimer
statute for political speech by corporations, against an argument
that the speech in question was not express advocacy.
Several
lower courts, in cases about speech by corporations, have upheld
disclaimer statutes based on that authority. Such an argument is not
applicable to this case
Concurring
in McIntyre,
Justice Ginsberg wrote “In for a calf is not in for a cow... We do
not thereby hold that the State may not in other, larger
circumstances require the speaker to disclose its interest by
disclosing its identity. Appropriately leaving open matters not
presented by Mclntyre's handbills, the Court recognizes that a
State's interest in protecting an election process 'might
justify a more limited identification requirement.”
Citizens
United was such a more limited identification requirement, for
corporate speech which had previously been banned entirely. Read in
context, Citizens United is a case that expands rather than
limits the speech protected by the First Amendment. Plaintiff here is
not a corporation,and the Missouri statute is not directed solely
toward corporations. It might be possible for this court to construe
the statute as only applying to corporations, but that would be a
stretch; better to enjoin the statute in its entirety and let the
legislature handle the issue of a more narrowly tailored
constitutional statute if they wish to do so.
Citizens
United did not
overrule Talley
or McIntyre.
Had it meant to do so it would have explained what it was doing any
why, as it did in its disussion of why it was overruling Austin
v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), .
Subsequently
to Citizens United, the court has re-affirmed its commitment to the
principle that government may not compel speech, in Agency for
Int'l Dev. v. Alliance for Open Soc'y Int'l, 133 S. Ct. 2321, 186 L.
Ed. 2D 398 (2013)
“It
is, however, a basic First Amendment principle that "freedom of
speech prohibits the government from telling people what they must
say." Rumsfeld v. Forum for Academic and Institutional
Rights, Inc., 547 U.S. 47 , 61 (2006) (citing West Virginia Bd. of
Ed. v. Barnette, 319 U.S. 624 , 642 (1943), and Wooley v. Maynard,
430 U.S. 705 , 717 (1977)). "At
the heart of the First Amendment lies the principle that each person
should decide for himself or herself the ideas and beliefs deserving
of expression, consideration, and adherence." Turner
Broadcasting System, Inc. v. FCC, 512 U.S. 622 , 641 (1994); see Knox
v. Service Employees, 567 U.S. ___ , ___-___ (2012) (slip op., at 8-9
) ("The government may not
... compel the endorsement of ideas that it approves.").”
In
addition to contolling cases from the federal and state Supreme
Courts, a previous federal case on the unconstitutionality of RSMo
130 is worth noting.
Shrink
Missouri Government PAC v. Maupin, 892 F. Supp. 1246 (E.D. Mo. 1995)
challenged, among other sections,
“(4)
the requirement that negative campaign advertisements state that they
were approved and authorized by the candidate on whose behalf they
were disseminated, id. § 130.031.”
The
state did not appeal this finding, although the 8th
circuit did affirm this ruling as to the other issues on which the
state appealed, saying “we conclude that the challenged provisions
violate the First Amendment. We therefore affirm the well-reasoned
decision of the District Court.”
http://media.ca8.uscourts.gov/opndir/95/12/952857P.pdf.
If
plaintiffs should prevail on the merits, as shown above, each of the
other factors for injunction is met. There is irreparable harm, no
burden to defendants, severe burden to plaintiff, the injury would be
cued by issuance of injunction,and the public interest in free and
open elections requires it.
Respectfully
submitted,
Robbin
Stewart.
@
Cert stuff goes here.
