notes on latest bopp case. 1:50 am 12/18/07.
I interests of amicus
Plaintiff is an organization with a 12 million dollar budget and a film to promote.
Plaintiff's counsel is an national expert on constitionality of election law, who has made a successful carreer of litigating express advocacy.
Amicus is a little guy with no millions and no movie.
His interest is in being able to put up a few signs now and then, without disclaimers, without being threatened with again being arrested and tortured in Indiana's jails. A ruling that 311 is unconstitutional as applied here would set an example for the states to follow, a step toward ending the long reign of censorship of core political speech by state agents. The state election authorities often look to the FEC for standards and practices, so a ruling on disclaimers would have national implications beyond whether or not Citizens Untied gets to promote its movie in a timely manner.

II
statement of the case

Citizens United is an as-applied challenge to disclosure and disclaimer requirements under McCain-Feingold, in a three judge court pursuant to the rapid review jurisdiction set out by McCain-Feingold.

The issues include whether the disclaimer requirements, section 311, violate the First Amendment.
This amicus brief in support of a preliminary is directed towards that issue.

The starting place for this court would be to consider the Supreme Court's precedents on McCain-Feingold, which are McConnell v FEC, WRTL I and WRTL II.
Plaintiffs memo in support of a preliminary injunctions focuses nearly exclusively on these cases.
Plaintiff argues that Citizens United's ads promoting a movie about Hillary Clinton are not express advocacy and are not the functional equivalent of express advocacy.
If issue advocacy (or implied advocacy not the functional equivalent of express advocacy), they do not count as electioneering communications regulated by McCain-Feingold, including section 311.

In McConnell, the plaintiffs did not make a general argument that the disclaimer regulations of 311 violate the freedom of speech. They made a more narrow argument, that Valeo had held that non-express advocacy could not be regulated. This argument failed in McConnell, a facial challenge, although it later largely won in WRTL II.

Because McConnell did not address the general constitutionality of disclaimer regulation under the First Amendment, and Plaintiff's argumnt under WRTL II may not exhaust the likelihood of success on the merits,it is appropriate to look beyond the three McCain-Feingold cases, to the Supreme Court's more general principles of First Amendment law and election speech.

III
Disclaimers on political literature under the First Amendment:

Right to Privacy:
Alabama ex rel Patterson v NAACP 1958
Bates v Little Rock 1962 (61?)
Manuel Talley v California

Right to Privacy - 5th Amendment - Self-incrimination/Due Process/Miranda.
legacy of trial by ordeal, third degree, waterboarding.

Disclaimers:
Talley v California
McIntyre v Ohio
ACLF v Victoria Buckley
Watchtower v Stratton
McConnell note 88
McConnell Thomas dissent
division among lower courts.
stewart v taylor
majors v abell - not appealed why
aclu v heller - not appealed why


Compelled speech:
Wooley v Maynard
Miami Herald v Tornillo
Riley v Federation of the Blind
Mn GOP v White

conclusion: binding authority holds that disclaimer regulations are unconstitutional.
even if this court disagrees, the supreme court would be likely to take the case to resolve the split between the circuits.
if this court reaches the merits, in order to weigh a likelihood of success, it should find that Talley is controlling and disclaimer regulation is unconstitutional.
but if it decides, in defiance of the controlling precedents of the supreme court, that disclaimers are hunky-dory, it should still weight the possibility of supreme court review and reversal, along with the balance of the burdens to the parties, and the public interest, and conclude that a temporary inunction should issue to prevent irreparable harm, until such time as judgment becomes final.
all for now, it's late, i'm drunk, just wanted to jot down a few notes.
2:39 am.