Nobody slugged it out in federal court last Friday with the Mississippi Attorney General over an investigation into anonymous flyers and mailers that appeared in the August 4 elections in Madison County. Secretary of State Englebert Hosemann and Attorney General Jim Hood are investigating the flyers. They said the use of anonymous flyers violate state law and those responsible may be prosecutred. Nobody filed suit in U.S. District Court last week and asked Judge Carlton Reeves to issue a temporary restraining order that would stop the investigation. The complaint states the plaintiff is Anonymous. Attorney Graham Carner represented the plaintiff.
Attorney Harold Pizetta defended the A.G. Judge Reeves said he would not rule during that day but would allow Nobody to argue why a TRO should be issued and allow a full hearing within ten days.
Reeves asked if faxes and pamphleteering are the same thing as speech and how are they different from the Federalist Papers. Carner said the mailers involved individuals spending their own money and expressing their own beliefs. He said they were governed by a different set of rules than candidates or PAC's and that the statute circumvented the speech of individuals.
The attorney for Nobody relied almost entirely on the McIntyre case in Ohio (McIntyre was an “as-applied” challenge to an Ohio law that sought to prohibit anonymous handbills to be distributed at a school board meeting.) Mr. Carner repeatedly compared the current case to McIntyere and said the cases were very similar. He argued that anonymous pampheleteering was part of the history of America's founding. Carner said the law overturned in McIntyre was narrower than the Mississippi statute. Carner repeatedly said the law was broad and covered "everything". It covered any and all speech of any type.
One interesting point was raised when Carner addressed the Younger extension- a federal court will not stop a state criminal prosecution while it is ongoing. He said the case was limited to Madison County and that he was "sure" that there was no prosecution underway in Madison County.
Carner wrapped up his argument by stating that once the case began, the plaintiff's anonymity will be "forever lost". The TRO will protect his identity until the case is actually adjudicated. The anonymity will be dropped and thus moot if the state can prosecute the case.
Carner sat down and Pizetta stepped up to take his swings at bat. He said this case was different than McIntyre. He said the court can't find a statute to be unconstitutional based upon a hypothetical case because one could always create another hypothetical case. There must be some limits to the court's discretion. However, Pizetta made his strongest argument as he claimed the Mississippi statute is similar in all aspects to the federal statute and those of most other states. The defender for the Attorney General said Citizens United clearly held that speech limitations were unconstitutional but disclosures and disclaimers would pass muster. Pizetta further argued:
If this particular mailer is a specific item for a specific election, this is not ‘general political speech’ but is electioneering as defined in Citizens United.The facts of this case are not similar to those in McIntyre – a phamplete distributed to influence school board members on a proposed tax increase; a couple of local citizens had distributed to the members of the local school board a small number of pamphlets encouraging the board to vote against a tax increase.In this case we have a mass mailing to residents throughout Madison County encouraging them to vote for or against a particular candidate
Thus the applicable case is Citizens United, not McIntyre. Pizetta also argued that paragraph 16 of Nobody's complaint states "the purpose of the mailing was to inform residents of a candidate’s actions, provide facts that the voters might want to know in making their decisions about specific candidates in the upcoming election.
Pizetta also attempted to rebut the claim that there was no ongoing criminal investigation. He said that the federal statute does not “restrict” speech. It just requires who is making the speech or paying for its distribution. Addresses Younger Extension. States that there is an ongoing criminal proceeding – there have been supeonas and search warrants issued by a state court.
Judge Reeves asked if the law would apply to an individual in Little Yazoo (his hometown) who passes out a few dozen leaflets on a street corner. Pizetta said the state would probably lose that case but each case had to be considered on an individual - "as applied"- basis instead of hypothetical scenarios.
McIntyre v. Ohio
Citizens United v. FEC
Mississippi statutes at issue.