Brian Majors v. Marsha Abell (3/15/04 USCA 7th Cir.)
POSNER, Circuit Judge. An Indiana statute, challenged in this suit as an infringement of free speech, requires that political advertising that “expressly advocat[es] the election or defeat of a clearly identified candidate” contain “a disclaimer that appears and is presented in a clear and conspicuous manner to give the reader or observer adequate notice of the identity of persons who paid for . . . the communication,” Ind. Code §§ 3-9-3-2.5(b)(1), (d), and makes violation a misdemeanor. § 3-14-1-3. “Disclaimer” is a misnomer; the correct word would be “disclosure”—but as we’ll see, that word has been appropriated to describe a reporting requirement.There is much more, but you will need to read it for yourself. Judge Posner's concluding paragraph:The district court dismissed the suit on jurisdictional grounds that we concluded were unsound, 317 F.3d 719, 721-23 (7th Cir. 2003), but we decided that we should not attempt to decide the merits of the plaintiffs’ constitutional challenge until we obtained an authoritative interpretation of the statute from the Indiana Supreme Court.
As an original matter it could be objected that speech and the press would no longer be free if the government could insist that every speaker and every writer add to his message information that the government deems useful to the intended audience for the message, and that it is arbitrary for the government to single out the identity of the writer or speaker and decree that that information, though no other that potential voters might value as much or more, must beEASTERBROOK, Circuit Judge, dubitante. His opinion runs from page 12 through 17. His concluding paragraph:
disclosed. But the Supreme Court crossed that Rubicon in McConnell. Reluctant, without clearer guidance from the Court, to interfere with state experimentation in the baffling and conflicted field of campaign finance law without guidance from authoritative precedent, we hold that the Indiana statute is constitutional. The decision of the district court is modified to place the dismissal of the suit on the merits, and as so modified is AFFIRMED.
Indiana does not contend that requiring disclosure by plaintiffs Carol Antun, Perry Metzger, and Bruce Martin— who want to use their own resources to speak on behalf of candidates of the Libertarian Party (and oppose incumbents, for libertarians do not occupy any major office in Indiana)— is essential to avert a material risk of underground favor-trading or bribery. Nor does the state try to justify mandatory disclosure by any truly independent speaker. Instead Indiana contends that it is entitled to regulate all electioneering by every speaker in order to avoid drawing lines. Given McConnell, I cannot be confident that my colleagues are wrong in thinking that five Justices will go along. But I also do not understand how that position can be reconciled with established principles of constitutional law.BTW: The Latin term "Dubitante" means, in a UK legal context: "doubting the correctness of the decision." The term "dubitante" means doubting: BLACK'S LAW DICTIONARY 499 (6th ed. 1990). Is such an opinion a concurrence or dissent? Here is a discussion from a document titled "The Operation and Jurisdiction of the Florida Supreme Court," found at part II(C)(5) of the document (access it here):
The rarest category of separate opinions are those issued "dubitante,"[90] a notation expressing serious doubt about the case. Only one such opinion has been issued in the Court's history, although it is recent.[91] With this sparse usage, it still is not entirely clear in Florida whether a dubitante opinion should be regarded as a type of concurrence or dissent or something else,[92] or indeed, whether a dubitante opinion can constitute the fourth vote necessary to fulfill the constitutional requirement that four justices must concur in a decision.[93]Here are the footnotes related to the federal system discussion:In the federal system, an opinion designated "dubitante" at least sometimes appears to constitute a very limited form of concurrence,[94] and some federal judges have gone to the trouble of designating their opinions as "concurring dubitante."[95] At least one has issued a dubitante opinion that expressly concurred in part and dissented in part, although the author seemed to indicate doubts only as to the partial concurrence.[96]
In Georgia, the courts have sometimes issued "dubitante" dissents, apparently meaning dissenting views in which the author has serious doubt.[97] Thus, a "dubitante dissent" would seem to constitute a species of dissenting opinion less vigorous than a full dissent. However, there also seem to be times when an opinion marked merely "dubitante" is neither a dissent nor a concurrence, but an expression of doubts so grave that the judge or justice can neither agree nor disagree with the majority.[98] This probably is the best construction, for example, in those rare cases in other jurisdictions in which a judge votes "dubitante" without writing a separate opinion.[99]
Because of the still uncertain nature of dubitante opinions in Florida, the better practice would be for the authors to indicate whether they intend to concur, to dissent, or neither to concur nor to dissent. Perhaps a statement to that effect could be included in the text of the opinion.
In any event, a statement that the justice "concurs dubitante" certainly would seem necessary where the dubitante opinion is relied upon as the fourth vote needed to create a binding decision; but even then, it remains to be seen whether that concurrence would give the written opinion itself the value of precedent. Some diminished form of precedential value might be in order in such a situation, but only where it is clear from a careful reading of the different opinions that at least four members of the Court, in fact, have agreed on some rationale, not merely the result. Otherwise, there would be no court opinion, and the plurality's view would not create precedent beyond the case at issue.
94. Indeed, some federal judges have marked their separate opinions with the heading "concurring" but have indicated in the text that the opinion is "dubitante." New York v. Halvey, 330 U.S. 610, 619 (1947) (Rutledge, J., concurring); see also Case-Swayne Co. v. Sunkist Growers, Inc., 389 U.S. 384, 403 (1967) (Douglas, J., dubitante); Radio Corp. v. United States, 341 U.S. 412, 421 (1951) (Frankfurter, J., dubitante).Posted by Marcia Oddi at March 15, 2004 04:18 PM95. E.g., Feldman v. Allegheny Airlines, 524 F.2d 384, 392-93 (2d Cir. 1975) (Friendly, J., concurring dubitante).
96. United States v. Walker, 9 M.J. 892, 894 (A.F.C.M.R. 1980) (Mahoney, J., dissenting in part, concurring in part, & dubitante).