[EL] Question about AFP v. Bonta and "exacting scrutiny"

[robbin stewart]

Bonta, McIntyre, and Gaspee Project v Mederos.

I just saw a thread from 10 days ago on the election law listserve, asking
about the standard of scrutiny in Bonta. The thread includes answers from
Rick Hasen, Eugene Volokh, Brad Smith, and others.

<i>"A question I’m hoping the folks here can help me with: My understanding
is that one of the criticisms of the majority opinion in Americans for
Prosperity v. Bonta (2021) is that it changes the definition of “exacting
scrutiny” to require narrow tailoring even in the absence of evidence that
there are any real First Amendment burdens as a result of the required
disclosures. The dissenting opinion really hammers on this point, and I
know Rick Hasen has written on this before as well.
I’m curious how that criticism can be squared with McIntyre v. Ohio
Elections Commission (1995). "</i>

I think it helps to ask, is this a campaign speech case, or a campaign
finance case (or both?).

Is it a case about disclaimers, or a case about disclosure?

I've been thinking a lot about these issues in the context of a possible
amicus in Gaspee Project v Mederos. The First Circuit upheld a Rhode Island
disclaimer and disclosure statute which conflicts with McIntyre. Plaintiffs
have promised to file for cert although they have not yet done so. The
court relied mostly on dicta from CU, a corporate speech case, and did not
mention Talley, ACLF, Watchtower, Tornillo, Barnette, AID, Riley, etc.

There is a deep split in how the lower courts have handled this issue, and
the CU opinion left this area murky, so it could be a good case for cert.

The disclaimer issue is clearly erroneous and should be reversed. The
disclosure argument is weaker, but could provide the court an opportunity
to further discuss Bonta if it wanted to.

I would be very interested in hearing for people and groups that might want
to participate in an amicus brief in favor of cert. I have been in touch
with a lawyer who is probably willing to submit a brief, but he has
suggested it would be better to submit it on behave of some groups rather
than just myself.

Of course there is no way to be sure yet that a petition for cert will
actually be filed, or that it will squarely address the disclaimer issue,
but I'd like to be prepared.

Robbin Stewart gtbear at gmail.


On Fri, Nov 19, 2021 at 10:39 AM Rick Hasen <rhasen at law.uci.edu> wrote:

>
>
>
> In practice, in cases like McConnell, Citizens United, and even Doe v.
> Reed, the Court did not rely on McIntyre or change what “exacting scrutiny”
> has meant in practice. Bonta does so.
>
>
>
>
>
> *From: *Law-election <law-election-bounces at department-lists.uci.edu> on
> behalf of "Kogan, Vladimir" <kogan.18 at osu.edu>
> *Date: *Friday, November 19, 2021 at 7:24 AM
> *To: *Election Law Listserv <law-election at uci.edu>
> *Subject: *[EL] Question about AFP v. Bonta and "exacting scrutiny"
>
>
>
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