Plaintiffs “Anonymous Company” and its two co-actors (collectively, “Anonymous
Company”) advance what could be categorized as a schizophrenic position.  

. D's begin by suggesting plaintiffs are showing symptoms of mental illness.

1.     Anonymous
Company seeks the benefit of the unlimited corporate spending to influence voters endorsed by
Citizens United in 2010 while at the same time arguing that the 1995 holding in McIntyre
regarding the distribution of handbills at a school board meeting shields Anonymous Company
from the very disclaimer requirements found to be both important and constitutional in Citizens
United. 
Citizens United did not change Mississippi's prohibition of corporate speech; it didnt have one.

CU is only a case about corporations. The two natural person plaintiffs have standing to facially challenge the statute under McIntyre, Talley, ACLF, Watchtower, Federation of the Blind, Tornillo v. Miami Herald, Rumsfeld, AID v Open Society.

CU did not purport to overturn any of these cases.

When CU did overturn, in whole or part, two cases, it explained in detail what it was doing and why; CU overturned Austin and partially overruled McConnell v FEC.  

The court need not address whether the 3rd plaintiff, a corporation, has 3rd party standing to argue overbreadth, because the 2 natural persons prevail, leaving the statute void. An alternative would be to construe the statute narrowly to reach only corporations. 

This makes the case distinguishable from cases where, after CU, a corporation was the sole plaintiff. Green Mountain Future, Yamada, CFIF v Tennent, Vermont Right to Life.

McConnell and CU are both cases orchestrated by James Bopp making indirect express advocacy arguments, rather than as here a direct facial and as-applied challenge under McIntyre.

Under Talley and McIntyre, most  states, as well as the federal government, have disclaimer statutes on the books. See note 2, Scalia dissenting in McIntyre. Many of these have gone unchallenged, some are unenforced, some have been found unconstitutional.
@give examples

A minority of cases have upheld statutes, perhaps based on the personal preferences of the judges. 

give examples.

CU has triggered a new set of  erroneous minority cases. 
Citizens United has been strongly criticized for its “shocking holding allowing unlimited
corporate spending” to influence voters.  See Ciara Torres-Spelliscy, Has The Tide Turned In
Favor of Disclosure? Revealing Money In Politics After Citizens United and Doe v. Reed, 27 Ga.
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St. U. L. Rev., 1057, 1058 (Summer 2011).  

2. Not to be overlooked in Citizens United  was the 1
Supreme Court’s full-throated endorsement and encouragement of the federal and state
government’s use of disclosure and disclaimer requirements as a means to combat corruption and
to arm voters with information necessary to evaluate the flood of corporate election spending. 
“The First Amendment protects political speech; and disclosure permits citizens . . . to react to
 the speech of corporate entities in a proper way.  This transparency enables the electorate to make
informed decisions and give proper weight to different speakers and messages.”  Citizens United
v. Fed. Election Comm'n, 558 U.S. 310, 371 (2010).  
The Citizens United opinion explicitly reaffirmed the constitutionality of the federal
government’s requirement that election “communications funded by anyone other than a
candidate must include a disclaimer that  ‘_______ is responsible for the content of this
advertising.’ ”  Citizens United, 558 U.S. at 366 (citing 2 U.S.C. § 441d(d)(2));  see also Bailey
v. Maine Comm'n on Governmental Ethics & Election Practices, 900 F. Supp. 2d 75, 83-84 (D.
Me. 2012) (“Citizens United is important because in Part IV of the Court's opinion it revalidated
the constitutionality of disclosure requirements by an eight to one vote.”).  That eight justices
understood Citizens United to affirm the constitutionality of disclaimer requirements for
corporations and other speakers even in the face of McIntyre is evidenced by Justice Thomas’
separate opinion in Citizens United.  “Justice Thomas dissented from Part IV [of the opinion
addressing disclaimers] in part because the majority ignored McIntyre’s concern for anonymous
speech.”  Bailey, 900 F. Supp. 2d at 84 n.17; see Citizens United, 558 U.S. at 480 (Thomas, J.,
  Revealing Money In Politics provides an informative history of the evolution of1 campaign finance disclosure and disclaimer cases before and after Citizens United.  2
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concurring in part and dissenting in part).  Justice Thomas’ attempt to employ McIntyre to strike
down disclaimer requirements failed to garner the support of even a second justice.  “After
Citizens United and Doe, lower courts all over the country have adopted the Supreme Court’s
view that disclosure and disclaimers can be constitutionally applied to advertisements that feature
candidates for office directly before an election.”  Revealing Money In Politics, 27 Ga. St. U. L.
Rev. at 1060.  Citizens United struck a balance: increased money in politics balanced by
increased transparency through disclosures and disclaimers.  Anonymous Company is not free to
accept one and reject the other. 
In Justice v. Hosemann, 771 F.3d 285, 296 (5th Cir. 2014), the Fifth Circuit affirmed both
the constitutionality and importance of Mississippi’s campaign finance disclosure requirements. 
In Justice, a group of five individuals desired to work in cooperation to spend in excess of $200
to influence voters to vote in favor of a constitutional initiative.  771 F.3d at 289-290.  The
Justice plaintiffs, citing the First Amendment, argued that they could not legally be required to
register as a political committee and file disclosure reports.  They desired to influence voters
without disclosing their identity to the State of Mississippi or to voters.  The Fifth Circuit
followed the well-established Citizens United line of authority in rejecting that interpretation of
the First Amendment.  Specifically, the Fifth Circuit found that Mississippi’s campaign finance
disclosure requirements satisfy “exacting scrutiny” and are constitutional because the
requirements advance a “sufficiently important governmental interest that bears a substantial
relation” to disclosure.  Id. at 296.   The Fifth Circuit further found that Mississippi’s disclosure
requirements – even at “lower levels of fundraising and expenditure” such as $200 – are
“substantially related” to “Mississippi's interest in providing information to voters.” Id. at 299,
3
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300.  Having satisfied exacting scrutiny, the Fifth Circuit held that “Mississippi's calibrated
reporting and itemization requirements for committees engaged in campaigns related to
constitutional amendments survive First Amendment scrutiny at most levels—and certainly at
enough levels to withstand this facial challenge.”  Id. at 300.  Pursuant to Justice, a group of
persons who spend in excess of $200 to influence voters must register as a political committee
and must file financial disclosure forms documenting their contributions and expenditures.  
In this matter, Anonymous Company seeks to unravel all that was sewn by the Supreme
Court and the Fifth Circuit.  As in Justice, Anonymous Company claims a First Amendment right
to influence voters without publically identifying itself or its co-actors.  The Justice plaintiffs
argued that they had a First Amendment right to create posters, purchase newspaper
advertisements, and “distribute flyers” to Mississippi voters without being required to register as
a political committee or file publically available disclosure forms with the Secretary of State. 
771 F.3d at 290.  Anonymous Company mailed thousands of copies of an election ad urging
voters to vote against three candidates.  See Verified Complaint at ¶¶  6-8, 16.  The Justice
plaintiffs argued for anonymity by challenging the registration and disclosure requirements. 
Anonymous Company takes this unsuccessful argument one step further, asserting that the First
Amendment cloaks it in anonymity so that the company is not required to register as a political
committee, not required to file financial disclosure forms, and not required to even identify itself
in election advertisements sent directly to voters.  Anonymous Company’s argument that
McIntyre recognized a right to anonymously influence voters to vote against a candidate is
directly contrary to the eight justices who found otherwise in Citizens United and cannot be
reconciled with the Fifth Circuit’s holding in Justice.
4
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Factual Background
According to the Complaint, Anonymous Company and two anonymous co-actors have
confirmed that they designed, purchased, and paid to be mailed  at least 12,977 anonymous
mailers to voters in Madison County expressly advocating the defeat of three clearly identified
candidates for county supervisor and one clearly identified candidate for state auditor.  See
Verified Complaint at ¶¶ 6-8, 16.  A copy of the election ad entitled “Mayor Mary the 2
Puppeteer” is attached as Exhibit A.   Plaintiffs’ spent $9,275.00 to produce and mail the
advertisement.  See Carner Email, Exhibit E. 
The mailer, attached as Exhibit A, is a quintessential election advertisement.  It is
undisputed that the purpose of the mass mailing was to influence voters to cast their ballots
against clearly identified candidates in four contested elections.  According to the Complaint:
“The mailer informed residents of [candidate for Mississippi Auditor] Hawkins-Butler’s past and
present actions and provides facts that voters might reasonably have wanted to know in making
their decision about the three Supervisors races and the Auditor’s race.”  Verified Complaint at
  For purposes of the preliminary injunction proceeding only, the plaintiffs stated that2 they caused to be mailed 12,977 “Mayor Mary” flyers.  See Pizzetta Letter, Exhibit C; Carner Letter, Exhibit D; Carner Email, Exhibit E.   However, the Attorney General also asked plaintiffs to identify any other anonymous mailers sent by plaintiffs during the August 2015 primary.  See Pizzetta Letter, Exhibit C.  In response to that question, the plaintiffs’ invoked their Fifth Amendment right and refused to answer whether other anonymous mailers were sent.  See Carner Letter, Exhibit D. “[W]hile a person may refuse to testify during civil proceedings on the ground that his testimony might incriminate him ... his refusal to testify may be used against him in a civil proceeding.” Farace v. Independent Fire Ins. Co., 699 F.2d 204, 210 (5th Cir.1983), cited for that proposition, Hinojosa v. Butler, 547 F.3d 285, 291 (5th Cir.2008).   In fact, the “trier of fact in a civil proceeding may draw adverse inferences from a party’s refusal to answer questions without infringing on the Fifth Amendment's protections.”  United States v. Carriles, 832 F. Supp. 2d 699, 702 (W.D. Tex. 2010).  Here, plaintiffs refusal to answer whether other mailers were sent in August 2015 permits this Court to draw the inference that other anonymous flyers were indeed sent by these plaintiffs.    5
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¶ 16 (emphasis supplied).  
Anonymous Company and its associates are acting as a political committee.  A political
committee under Mississippi law is “any committee, party, club, association, political action
committee, campaign committee or other groups of persons or affiliated organizations which . . .
makes expenditures aggregating in excess of Two Hundred Dollars ($200.00) during a calendar
year for the purpose of influencing or attempting to influence the action of voters for or against
the nomination for election, or election, of one or more candidates . . . .”  Miss. Code Ann. § 23
15-801(c).  Anonymous Company and its co-actors acted as a group to create, pay for, and cause 3
to be distributed to voters an advertisement through which they sought to influence voters for or
against a candidate for election.  They used a method traditionally and extensively used by
candidates and political committees – direct mail to voters.  As recognized by state law, these
plaintiffs are a political committee spending funds to purchase advertisement to influence voters.  
Disclaimer Requirements are a Critical Component of Campaign Disclosure Laws Enacted by Mississippi, Other States, and the Federal Government.  
The State of Mississippi has enacted comprehensive campaign finance registration and
disclosure laws governing elections.  See Miss. Code Ann. §§ 23-15-801 et seq.  Among other
requirements, candidates, candidates’ committees, as well as individuals and groups of
individuals who make expenditures or collect donations for the purposes of influencing voters,
   For purpos