gt's letters and notes: 02/07/2016

I don't know how to directly put a pdf file onto the blog, so I'm just going to grab the text and post it that way, which will probably lose some of the formatting. I'm going to post an amicus brief I recently filed in Anonymous Doe et al v Hosemann et al., a Mississippi disclaimer case.

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI NORTHERN DIVISION ANONYMOUS DOE; ANONYMOUS ROE; AND ANONYMOUS COMPANY, PLAINTIFFS CIVIL ACTION NO. 3:15-cv-609-CWR-LRA PHIL BRYANT, in his Official Capacity as Governor of the State of Mississippi; JAMES HOOD, in his Official Capacity as the Attorney General of the State of Mississippi; DELBERT HOSEMANN, in his Official Capacity as the Secretary of State of the State of Mississippi DEFENDANTS AMICUS BRIEF OF ROBBIN STEWART Robbin Stewart P O Box 29164 Indianapolis IN 46229 317.656.9233 gtbear@gmail.com TABLE OF CONTENTS 1 TABLE OF AUTHORITIES 2 STATEMENT OF IDENTITY, INTEREST AND AUTHORITY TO FILE......5 SUMMARY OF ARGUMENT..........................................................................5 ARGUMENT.....................................................................................................6 A: Controlling precedents of the supreme court and fifth circuit govern the case. 6 1. Standard of review is strict scrutiny.............................................................10 2. Effect of Citizens United on natural and corporate plaintiffs......................12 B. Persuasive precedent from other courts support following Talley and McIntyre.14 C. The state constitution supports plaintiffs. …................................................16 D. The standard for injunctive relief is met. …..............................................18 Conclusion. …..............................................................................................19

Table of Authorities:
ACLU v. Heller, 378 F3d 979 (9th cir. 2004), 10, 16
Agency for International Development v Alliance for Open Society International, Inc, _ U.S. _ (6/20/2013). 8, 12, 14
Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). 8
Anonymous v Delaware, 2000 Del. Ch. Lexis 84 (2000). 6
Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990) 14
Bates v Little Rock 361 U.S. 516 (1960) 11
Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182, 199-200, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999) (“ACLF”), 8, 11
Buckley v. Valeo, 424 U.S. 1 (1976) 11, 12
Citizens for Responsible Gov't PAC v. Davidson, 236 F.3d 1174, (10th Cir. 2000),16 Vt. Right to Life Comm., Inc. v. Sorrell, 221 F.3d 376, 392 (2d Cir. 2000), 16 Citizens United v. FEC, 558 U.S. 310 (2010). 7, 8, 9, 13,14,15,
Dennis v. Massachusetts, 329 N.E.2d 706 (Mass. 1975), 18 Elrod v Burns, 427 U.S. 347 (1976) 19
Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 223 (1989) (quoting Monitor Patriot Co. v. Roy, 401 U. S. 265, 272 (1971)) 10
Ex Parte Harrison, 110 S.W. 709 (Mo 1908) 18
Free Enterprise Club PAC v. Bennett, 564 U.S. _, 131 S.Ct. 2806 (2011) 9 Green Mountain Future, v. Vermont 2012-072 (Vt.2013) 13 Idaho v. Barney, 448 P.2d 195 (1968) 18
Illinois v. White, 506 NE2d 1284 (Ill. 1987) 18 In re Opinion of the Justices, 324 A.2d 211 (Del. 1974) 18 Justice for All v Faulkner, 410 F.3d 760 (2005) 6, 8
Louisiana. v. Moses, 655 So. 2d 779 (La. Ct. App. 1995) 19 Majors. Majors v Abell, 317 F.3d 719 (7th Cir. 2003), 792 NE2d 18 (Ind. 2003), 361 F.2d 349 (7th Cir 2004.) 6, 9, 10
McConnell v FEC, 540 U.S. 93 (2003) 9, 10,14
McIntyre v. Ohio Elections Comm'n., 514 U.S. 334, 115 S.Ct. 1511, 131 L.Ed.2d 426(1995); 6, 8, 10, 11, 12,14,15, 18, 19 Mulholland v Marion County Election Board (7th Cir 2014), 10, 16
NAACP v Alabama ex rel. Patterson, 357 U.S. 449 (1958) 11
Nat’l Org. for Marriage v. McKee I, 649 F.3d 34, (1st Cir. 2011), cert. denied, 132 S. Ct. 1635 (2012), Nat’l Org. for Marriage, Inc. v. McKee II, 669 F.3d 34, (1st Cir. 2012), cert. denied, 133 S. Ct. 163 (2012) 13
New York v. Duryea, 351 NYS2d 978 (1974) 18 Opinion of the Justices, 306 A.2d 18 (Maine 1973) 18
Reed v Town of Gilbert, 576 U.S. __ (2015) 12
Riley v Nat’l.Fed’n of the Blind, 487 U.S 781 (1988) 8, 12
Salerno, U.S v., 481 U.S. 739 (1987)
Schuster v. Imperial County Mun. Ct., 167 Cal. Rptr. 447 (Cal. Ct. App.1980), cert. denied, 450 U.S. 1042 45. 19 ShrinkMo v. Maupin, 892 F. Supp. 1246 (E.D. Mo. 1995), aff'd on other grounds, 71 F.3d 1422 (8th Cir. 1995), 15
State of Louisiana v. Fulton, 3.37 So.2d 866 (La. 1976) 18 State v. North Dakota Educ. Ass'n, 262 N.W.2d 731 (N.D. 1978) 18-19 Stewart v Taylor, 953 F. Supp. 1047 (1997) 6
Swaffer v Cane, 610 F.Supp.2d 962 (2009) 10
Talley v. California, 362 U.S. 60, 64, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960).
6, 8, 11, 12, 14, 15,
Tattered Cover v Thornton, 44 P.3d 1044 (Co. 2002) 19
Tornillo v. Miami Herald, 418 U.S. 241 (1974) 8, 12, 15
Van Hollen v FEC, (D.C. Cir. 1/21/2016), slip op at 24, 27. 9
Watchtower Bible & Tract Soc’y of New York City v. Vill. of Stratton, 536 U.S. 150, (2002) 8 West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943) 8, 12
Wilson v Stocker, 819 F.2d 943, 950 (10th Cir. 1987), 16 Wooley v. Maynard, 430 U. S. 705, 717 (1977) 8, 12
WRTL I, 551 U. S. 449 (2006), at 464. and II, 551 U.S. 449 (2007) 9, 10, 15
Other Authorities:
MS Code Sec. 23-15-899 (2013) 7
MS Constitution, sections 5,6,11,13,14. 18
18 USC 241 7, 20 http://ballots.blogspot.com 6
Interest of Amicus Defendant's most recent brief cites and relies on Majors v Abell, which brought this case
to my attention. I was counsel in Majors. Majors v Abell, 317 F.3d 719 (7th Cir. 2003),
792 NE2d 18 (Ind. 2003), 361 F.2d 349 (7th Cir 2004.) I was the plaintiff in Stewart v
Taylor, 953 F. Supp. 1047 (1997), which found Indiana's disclaimer statute
unconstitutional, in the context of my sign that read Robbin Stewart for Township Board
Vote Tuesday. I was also counsel in Anonymous v Delaware, 2000 Del. Ch. Lexis 84
(2000), which found that Delaware's disclaimer statute was so indisputably
unconstitutional that there was no remaining case or controversy. Since 1997, I have
been monitoring states' compliance with the McIntyre and Talley decisions. I am a
former partner in Tavel & Stewart Public Interest Law Firm, currently retired. I blog
about election law at ballots.blogspot.com.
I have submitted amicus briefs to the Indiana, South Carolina and United States
Supreme Courts. An amicus brief to the Harrison County, WV, Superior Court helped
get charges dropped against Martin Shaffer, a city council member who had been
arrested in connection with the disclaimer on a newspaper critical of city officials. I am a
natural person, not a corporation. I (and no other person or entity) have funded the
preparation and submission of this amicus brief.
Summary of Argument
The disclaimer statute is facially and as-applied unconstitutional and void per Talley v
California, 362 U.S. 60, 64, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960) and Justice for All v
Faulkner, 410 F.3d 760 (2005), providing a strong likelihood of success, so the
injunction should issue. Ten Supreme Court cases find that such compelled speech is
unconstitutional, while twenty-five lower court cases have found similar disclaimer
statutes unconstitutional. Citizens United's discussion of a federal disclaimer rule was
expressly limited to corporate speech, was dicta, and dealt only with a kind of failed as
applied challenge not at issue here. Parts I-III and V of Citizens United have language
that helps this case as much as Part IV hurts. Because plaintiffs are entitled to prevail on
the merits, and each other factor for injunction is favorable, it would be legal error and
abuse of discretion to refuse injunctive relief.
Issue presented: Is MS Code Sec. 23-15-899 (2013) unconstitutional?

Argument: The statute is unconstitutional both facially and as applied.

A: Controlling precedents of the supreme court and fifth circuit govern this case. This is a case in which several politically active persons, two natural and one a

corporation, had been threatened by the secretary of state for allegedly distributing a

campaign flier without a statutorily mandated identification disclaimer. They filed suit to

enjoin the statute and any further such harassment of their protected speech. The statute

is void because it is unconstitutional. The secretary of state's actions are highly improper

and may constitute malfeasance in office and may be illegal under federal civil rights

law, 18 USC 241. The attorney general's participation in this improper conduct is

troubling. Each of the four factors for injunction are met. This brief focuses on the

merits, showing a strong likelihood of success. For the injunction to issue, it would be

enough to show serious questions going to the merits where, as here, the balance of

burdens strongly favors plaintiffs. Alliance for the Wild Rockies v. Cottrell, 632 F.3d

1127, 1135 (9th Cir. 2011). The court may take the motion for injunction as an

opportunity to issue declaratory relief and resolve the merits.

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)). Agency for International Development v Alliance for Open Society International, Inc, _ U.S. _ (6/20/2013). This case is more recent than Citizens United v. FEC, 558 U.S. 310 (2010), and

refutes any false claim that Citizens United overruled McIntyre v. Ohio, 514 U.S. 334

(1995), Talley v. California, 362 U.S. 60 (1960), Tornillo v. Miami Herald, 418 U.S. 241

(1974), Wooley v. Maynard, 430 U.S. 705 (1977), Buckley v. ACLF, 525 U.S. 182 (1999),

Riley v. Nat'l Federation of the Blind, 487 U.S. 781 (1988), Watchtower v, Stratton, 536

U.S. 150 (2002), Barnette v. West VA Board, 319 U.S. 624, etc.

As a general proposition, anonymous speech is protected by the First Amendment. See, e.g., McIntyre v. Ohio Elections Comm'n., 514 U.S. 334, 115 S.Ct. 1511, 131 L.Ed.2d 426(1995); Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182, 199-200, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999); Talley v. California, 362 U.S. 60, 64, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960). Justice for All v Faulkner, 410 F.3d 760 (2005). Faulkner is binding precedent in the 5th Circuit, and is nowhere mentioned in the state's brief. It solidly resolves this case. The Supreme Court has vigorously protected the public's right to speak

anonymously, even recognizing that anonymous speech has played an important role in the progress of mankind. Talley v. California, 362 U.S. 60, 64 (1960). Anonymity, the Court elsewhere observed, is a shield from the tyranny of the majority and exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular: to protect unpopular individuals from retaliation and their ideas from suppression at the hand of an intolerant society. McIntyre v. Ohio Elections Comm., 514 U.S. 334, 357 (1995). Van Hollen v FEC, (D.C. Cir. 1/21/2016), slip op at 24. https://www.cadc.uscourts.gov/internet/opinions.nsf/E90D7BF9ECC39D1085257 F41006AF4EC/$file/15-5016-1594896.pdf. The Van Hollen opinion cites four times to Judge Easterbrook's dubitante opinion in Majors v Abell. The ones who would truly bear the burden of Van Hollen’s preferred rule would not be the wealthy corporations or the extraordinarily rich private donors that likely motivated Congress to compel disclosure in the first place. Such individuals would have “little difficulty complying” with these laws, as they can readily hire “legal counsel who specialize in election matters,” who “not only will assure compliance but also will exploit the inevitable loopholes.” Majors, 361 F.3d at 357–58 (Easterbrook, J., dubitante). Instead, such requirements “have their real bite when flushing small groups, political clubs, or solitary speakers into the limelight, or reducing them to silence.” Id. at 358. Van Hollen, slip op at 27. Majors was a case that held, erroneously, that McConnell v FEC, 540 U.S. 93 (2003),

had thrown First Amendment law into such a state of indeterminacy that lower courts

could not properly decide whether Indiana's disclaimer statute was constitutional, and

resolved that tie by ruling against plaintiffs, who as the moving party had the burden of

persuasion. Subsequent cases including WRTL v, FEC I, 547 U.S. 449 (2006) and II,

551 U.S. 449 (2007), Davis v FEC, 554 U.S. 724 (2008), Free Enterprise Club v.

Bennett, 564 U. S. _ , 131 S.Ct. 2806 (2011), American Tradition Partnership, Inc. v.

Bullock, 567, U.S. __ (2012), and Citizens United have limited and clarified or overruled

McConnell to remove these doubts. Under WRTL II, and Citizens, a tie goes to the

speaker, not the state. Majors was a product of its specific moment in history, and is no

longer persuasive if ever, and was never controlling outside of the 7th Circuit. The Ninth

Circuit in ACLU v. Heller, 378 F3d 979 (9th cir. 2004), specifically criticized and

rejected Majors for failing to understand that McIntyre remained good law after

McConnell. Note 88 of McConnell specifically states that McIntyre remains good law.

Even within the 7th circuit, McIntyre rather than Majors has controlled subsequent

disclaimer cases. Mulholland v Marion County Election Board (7th Cir 2014), Swaffer v

Cane, 610 F.Supp.2d 962 (2009).

Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. See Buckley, supra, at 14–15 (“In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential”). The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it. The First Amendment “‘has its fullest and most urgent application’ to speech uttered during a campaign for political office.” Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 223 (1989) (quoting Monitor Patriot Co. v. Roy, 401 U. S. 265, 272 (1971)); see Buckley, supra, at 14 (“Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution”). For these reasons, political speech must prevail against laws that would suppress it, whether by design or inadvertence. Laws that burden political speech are “subject to strict scrutiny,” which requires the Government to prove that the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest.” WRTL, 551 U. S., at 464. Citizens United v. FEC, 558 U.S. 310, slip op at 23 (2010). Citizens United can be cited both for and against plaintiffs here and is discussed further

below. One part strikes down a ban on spending by corporations, another part uphlds

disclaimers and disclosures of corporate speech under the looser Valeo standard against a

specific failed kind of express advocacy as-applied challenge not present in this case.

Neither part of Citizens United directly controls the instant case, because the challenge is

brought by two natural persons who directly attack the statute instead of making a failed

argument based on express advocacy grounds.

The modern First Amendment right to privacy has its origins in a trio of civil rights

cases, NACCP v Alabama ex rel Patterson 357 U.S. 449 (1958), Bates v Little Rock

(1960) and Talley v California, 362 U.S. 60, 64, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960).

NAACP and Bates were disclosure cases, holding that the persecuted organization did

not have to disclose its members to a hostile state government. Talley held that

disclaimer statutes, such as the one here, violate the First Amendment.

The Standard of review is strict scrutiny.

Estate of McIntyre v Ohio Elections Comm'n., 514 U.S. 334, 115 S.Ct. 1511, 131

L.Ed.2d 426 (1995) clarified that there is no “elections exception” to the rule in Talley.

Talley had not set out a standard of review. Below, the Ohio Supreme Court had applied

Buckley v Valeo intermediate scrutiny and upheld a $100 fine. The Supreme Court

reversed and applied strict scrutiny. While the case was technically as-applied, the court

ruled that the statute was unconstitutional, instead using a limiting construction or

carving out an exception for little old ladies. It is worth noting the statute applied to

candidates as well as the referenda directly at issue, and the court did not limit its

holding to allow disclaimers for candidates. In Buckley v. ACLF (1999) all nine justices

agreed that under McIntyre's strict scrutiny standard a petitioner could not be forced to

disclaim his identity with a badge, but could be required to disclose it to state officials

under the more permissive Buckley v Valeo (1974) standard. The instant case is a

disclaimer case, not a disclosure case, and McIntyre's strict scrutiny applies here. Both

McIntyre and Valeo use the term “exacting scrutiny”, but one test is “fatal in fact” where

the other is lax. Dissenting in McIntyre, J. Scalia called it a “kiss of death” standard, and

here it operates to declare Mississippi's statute dead on arrival, void ab initio. Reed v

Town of Gilbert, 576 U.S. __ (2015) recently re-affirmed the principle that strict scrutiny

is the standard for statutes like this which discriminate on the basis of content. In Talley

and McIntyre, only small fines were involved, $10 and $100 respectively. The criminal

penalties of Mississippi are far more chilling to core political speech.

These cases are not alone; a long line of cases including Barnette, Wooley v

Maynard, Riley v Nat'l. Federation of the Blind, Tornillo v Miami Herald, and AID v

Open Society have held that government cannot compel speech. Any of these cases

could be relied on to find Mississippi's statute void.

Plaintiffs have raised both a facial and as-applied challenge to the statute. The statute

fails both approaches. There are three plaintiffs here, each anonymous. [It is entirely

proper for each to be anonymous in a case such as this where anonymity is the very legal

issue the case is about, one of the exceptions to the general rule that plaintiffs must use

their own name.] Two are natural persons, one is a corporation. Anonymous Doe is

certainly entitled, under Talley and the other above cases, to an as-applied victory. The

case of the corporation would be more complex if it were acting alone, but here may

share in the relief to which the other parties are entitled, because to act against the

corporation would impermissably chill the speech of the other plaintiffs. In the First

Amendment context, courts do not apply the Salerno rule of facial challenges. It does

not defeat a First Amendment facial challenge to show that somewhere somehow the

statute could be enforced against someone. It is enough to show that the statute is

overbroad and would chill speech, interfering with the public interest in free and open

elections informed by unfettered free speech. Citizens United, 558 U.S at 14, has a

useful discussion of how facial and as-applied challenges overlap and are not mutually

exclusive. Because the statute is facially void, even the corporate plaintiff is a prevailing

party here. The posture of this case makes it distinguishable from recent cases where a

corporation as sole plaintiff lost disclaimer cases. E.g. NOM v McKee I,649 F.3d 34,

(1st Cir. 2011), cert. denied, 132 S. Ct. 1635 (2012), Nat’l Org. for Marriage, Inc. v.

McKee II, 669 F.3d 34, (1st Cir. 2012), cert. denied, 133 S. Ct. 163 (2012), Vermont v.

Green Mountain Future, 2012-072 (Vt.2013).

2. Effect of Citizens United on natural and corporate plaintiffs.

Citizens United has recently complicated disclaimer cases, especially when as here a

corporation is involved as a party. “In for a calf is not in for a cow,” J. Ginsberg wrote,

concurring in McIntyre. Citizens United is an example of the kind of limited exception

she referred to. It allowed both disclaimer and disclosure requirements for previously

banned speech by corporations in federal elections, without really distinguishing

between the two, in brushing aside a failed as-applied challenge based on an argument

that the Hillary Movie was not express advocacy. The court found that the movie was

the functional equivalent of express advocacy, so that challenge failed. It was not

entirely waived by the plaintiffs; one paragraph in a brief addressed it, but it was not

discussed at either oral argument and was not the focus of the case, especially after

Citizens United replaced James Bopp with Ted Olsen as their counsel. Bopp is the

leading expert on express advocacy, Olsen was more interested in overruling Austin v.

Chamber, 494 U.S. 652 (1990) and McConnell. Part IV of Citizens United has some

nice things to say about disclaimers that are at odds with Talley and McIntyre, but this is

all dicta because the holding was based on whether Hillary the Movie was express

advocacy, defeating the precise challenge that had been made. Further, the opinion was

limited to only corporate speech, and does not apply to a case like this where natural

persons facially attack the statute under the controling precedents. If Citizens had raised

a facial challenge, the opinion would have had to be quite different. AID v. Open Society,

cited above, shows that the Court has not given up the idea that government may not,

generally, compel speech. The Mississippi statute is not limited to coprorations, or libel,

or fundraising fraud, or other narrow exceptions such as J.Ginsberg hinted at. It is

solidly the kind of statute McIntyre and Talley said are unconstitutional. The federal

disclaimer statute is equally unconstitutional, only no one has ever directly challenged it

yet.

It would be a mistake to only read part IV of Citizens United. The rest of the case is

about expanding rather than limiting First Amendment protection of political speech,

and part IV should be understood in that context. For every statement in Citizens United

that could be taken as an endorsement of political censorship via disclaimers, there are

two which attack censorship. It would be possible to write a brief against Mississippi's

statute consisting solely of quotes from Citizens United.

We find no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers. The Court has recognized that First Amendment protection extends to corporations. Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974). The First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory rulings before discussing the most salient political issues of our day. Prolix laws chill speech for the same reason that vague laws chill speech: First Amendment standards, however, “must give the benefit of any doubt to protecting rather than stifling speech.” WRTL, 551 U. S., at 469 (opinion of ROBERTS, C. J.) (citing New York Times Co. v. Sullivan, 376 U. S. 254, 269–270 (1964)). “‘First Amendment freedoms need breathing space to survive.’” WRTL, supra, at 468– 469 (opinion of ROBERTS, C. J.) (quoting NAACP v. Button, 371 U. S. 415, 433 (1963)). Citizens United v FEC, (2010). B. Persuasive precedent from other courts supports following Talley and McIntyre. The Supreme Court and Fifth Circuit are not the only authorities that have invalidated

disclaimer statutes. Thirteen states have found disclaimer statutes to violate state

constitutions. Forty cases have pointed to McIntyre or Talley and struck down statutes or

ordinances. Courts have not been unanimous,and there are cases on the other side as

well, not listed here, but the strong trend has been to follow Talley and McIntyre. Cases

from other circuits include: Wilson v Stocker, 819 F.2d 943, 950 (10th Cir. 1987),

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), Mulholland v Marion

County Election Board, (7th Cir. 3/202014).

Here is a chart by year of cases about disclaimers or anonymous speech.

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 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-printingindustries-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) 1978 State v. North Dakota Educ. Ass'n, 262 N.W.2d 731 (N.D. 1978), http://www.ndcourts.com/court/opinions/612.htm 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); 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/93986.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 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) 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, 25 Cal.4th 688, 107 Cal.Rptr.2d 149; 23 P.3d 43 2001, reversed on other grounds,2004. 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); 2000 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 Ogden v Marendt 264 F.Supp.2d 785 (S.D. Ind. 2003) 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, 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,March 28, 2002, August 14, 2003 2010 Sampson v. Buescher, 625 F.3d 1247, (10th Cir. 2010)

2012 Hatchett v Barland, (E.D.Wi) , on appeal to 7th Cir. 2014 Mulholland v Marion County Election Board (7th Cir. 3/20/2014), C. The state constitution supports plaintiffs. Plaintiffs rely solely on the federal constitution. The state constitution could have also

been used. I am not aware of any cases directly on point, but the plain text of the

Mississippi constitution has multiple sections which are incompatible with defendants'

conspiracy to make political speech a crime.

SECTION 5. All political power is vested in, and derived from, the people; all government of right originates with the people, is founded upon their will only, and is instituted solely for the good of the whole. SECTION 6. The people of this state have the inherent, sole, and exclusive right to regulate the internal government and police thereof, and to alter and abolish their constitution and form of government whenever they deem it necessary to their safety and happiness; provided, such change be not repugnant to the constitution of the United States. SECTION 11. The right of the people peaceably to assemble and petition the government on any subject shall never be impaired. SECTION 13 The freedom of speech and of the press shall be held sacred; SECTION 14. No person shall be deprived of life, liberty, or property except by due process of law. Thirteen states have found disclaimer statutes unconstitutional under state

constitutions. Most of these cases do not set out a separate discussion of the state

constitution, but are persuaded by Talley or McIntyre. Ex Parte Harrison, 110 S.W. 709

(Mo 1908), Idaho v. Barney, 448 P.2d 195 (1968), Opinion of the Justices, 306 A.2d 18

(Maine 1973), In re Opinion of the Justices, 324 A.2d 211 (Del. 1974), New York v.

Duryea, 351 NYS2d 978 (1974), Dennis v. Massachusetts, 329 N.E.2d 706 (Mass. 1975),

State of Louisiana v. Fulton, 3.37 So.2d 866 (La. 1976), State v. North Dakota Educ.

Ass'n, 262 N.W.2d 731 (N.D. 1978), Schuster v. Imperial County Mun. Ct., 167 Cal.

Rptr. 447 (Cal. Ct. App.1980) , cert. denied, 450 U.S. 1042 45, Illinois v. White, 506

NE2d 1284 (Ill. 1987), Louisiana. v. Moses, 655 So. 2d 779 (La. Ct. App. 1995), 2002

Tattered Cover v Thornton, 44 P.3d 1044 (Co. 2002). Under the self-government,

petition, assembly, and freedom of the press clauses of the Mississippi constitution, the

plain meaning is that government officials cannot make it a crime to publish a flier

critical of a public official. If the statute is void under the state constitution, it cannot

meet the compelling state interest test prong of the strict scrutiny standard required

under McIntyre. Although plaintiffs have not raised independent state claims,

consideration of the state constitution is relevant to the strength of the state's interest, a

factor under the McIntyre standard.

D. The standard for injunctive relief is met. Because the statute is unconstitutional and void under controlling precedent, plaintiffs

have a strong likelihood of success. The harm is irreparable. Elrod v Burns, 427 U.S.

347 ((1976). The balance of hardships favors plaintiffs. Plaintiffs are threatened with

investigation, prosecution, and prison, for speech which is not only protected, but should

be praised. I do not know or care whether the allegations they raised in their flier will

turn out to be true. What I care about, as someone who has been a candidate, is that there

be unfettered public discussion of the candidates and the issues, because otherwise the

public cannot inform themselves so that their votes have meaning. What happens to

plaintiffs, even if they are unjustly jailed, is relatively unimportant. What is vitally

important is that the public be able to cast informed decisions, perhaps even to cast out

the defendants in this case, and that requires that the statute be struck down so that

people can speak freely in Mississippi. Defendents' burden, on the other hand, is merely

that they will not be able to do something which is not just unconstitutional, and a

breach of their oath of office, but which is likely illegal under federal civil rights law,

e.g. 18 USC 241. The public interest compels injunction to preserve the integrity of the

election process. CONCLUSION: The statute is unconstitutional both facially and as applied to at least two of the three plaintiffs. The standard for injunction is met.

Respectfully submitted, ___________________ gtbear@gmail.com Box 29164 Indianapolis IN 46229-0164 317.656.9233 Robbin Stewart #17147-53

CERTIFICATE OF SERVICE I certify that the foregoing brief was sent February ___ 2016 via first class mail to GRAHAM P. CARNER, PLLC 771 North Congress Street Jackson, MS 39202 601/949-9456 601/354-7854 (fax) graham.carner@gmail.com

Jonathan Matthew Eichelberger EICHELBERGER LAW FIRM, PLLC 775 North Congress Street Jackson, MS 39202 601/292-7940 601/510-9103 (fax) matt@ike-law.com Harold Edward Pizzetta, III OFFICE OF THE ATTORNEY GENERAL P.O. Box 220 550 High Street (39201) Jackson, MS 39205-0220 601/359-3680 hpizz@ago.state.ms.us ______________ Robbin Stewart CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32 a(7)(B) because this brief contains approximately 4146 words, 15 pages, excluding the parts of the brief exempted by Fed. R. App. P. 32 (a)(7) (B)(iii). This brief was prepared using OpenOffice. 2/____/2016 Robbin Stewart.

gt's letters and notes

Monday, February 08, 2016

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