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MOTION FOR PARTIAL SUMMARY JUDGMENT Pure speech, Interactive Core Political Speech, Prior Restraints and Facial Attack on Statutes

MOTION FOR PARTIAL SUMMARY JUDGMENT Pure speech, Interactive Core Political Speech, Prior Restraints and Facial Attack on Statutes

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Published by Sheriff_Joe_Arpaio
The government, as usual, undermining the bill of rights.
The government, as usual, undermining the bill of rights.

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Categories:Types, Business/Law
Published by: Sheriff_Joe_Arpaio on Sep 18, 2013
Copyright:Attribution Non-commercial


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1In The
United States Court District Court (Florida)
, for himself and )Those similarly situated, ) CIVIL ACTIONP
)v. ) DOCKET
. ) 2013-
. )
MOTION FOR PARTIAL SUMMARY JUDGMENTPure speech, Interactive Core Political Speech, Prior Restraints and FacialAttack on StatutesandSTATEMENT OF MATERIAL FACT
 NOW COMES, Scott Huminski ("Huminski") and moves pursuant to F.R.Civ.P. 56 for a partial summary judgment as follows:1)
Huminski seeks a declaration that there is no time limitation to mount a direct or collateral facial attack upon a statute or police communications under the color of State law as is the case in this litigation which attacks the harassment statutes of Arizona, Connecticut and the Common law of Vermont and police conductthereunder.2)
Huminski seeks a declaration that there is no time limitation for launching an attack upon a prior restraint contained in State Statute or police conduct under the color of such a statute.MEMORANDUM OF LAWSubstantive due process and First Amendment claims such as the statutory threatsagainst Huminski
s litigation are not subject to a statute of limitations. See Lavey v. City of TwoRivers, 994 F. Supp. 1019, 1023 (E.D. Wis. 1998) (rejecting argument that section 1983
2challenge to local sign ordinance was untimely, noting that plaintiff sought only declaratory andinjunctive relief), judgment aff'd, 171 F.3d 1110 (7th Cir. 1999); cf. Nat'l Adver. Co. v. City of Raleigh, 947 F.2d 1158, 1168 (4th Cir. 1991) (cited in Lavey) ("it is doubtful that an ordinancefacially offensive to the First Amendment can be insulated from challenge by a statutorylimitations period"); Maldonado v. Harris, 370 F.3d 945, 955 & n.6 (9th Cir. 2004) (secondingFourth Circuit's doubts and collecting district court cases in like vein).Huminski and his litigation and other means of publicizing perceived corruption of lawenforcement has been labeled by the Second Circuit as a
legitimate gadfly
, speech contained inHuminski
s litigation is
 pure speech
and interactive
core political speech
. Huminski v.Corsones, 396 F.3d 53 (2nd Cir. 2005). His participation as a member of the press and a citizenreporter engaging in
 pure speech
(civil litigation) has been well established for over a decade.Although the threat of damages or criminal action may chill speech, a prior restraint "freezes"speech before the audience has the opportunity to hear the message. Nebraska Press Assoc. v.Stuart, 427 U.S. at 559 ("If it can be said that a threat of criminal or civil sanctions after  publication 'chills' speech, prior restraint 'freezes' it at least for the time.") The plain language of the Arizona and Connecticut harassment statutes and of the Vermont common law clearlycriminalize civil litigation. The actual threats under State law from the defendants drives the point home that un-favored civil litigation against police and government will not be tolerated."prior restraints upon speech and publication are the most serious and least tolerableinfringement on First Amendment rights". Nebraska Press Assoc., 427 U.S. at 559.The principal purpose of the First Amendment's guaranty is to prevent prior restraints. Near v. Minnesota, 283 U.S. at 713. The Supreme Court has declared: "Any prior restraint onexpression comes to this Court with a 'heavy presumption' against its constitutional validity."Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S. Ct. 1575, 29 L. Ed. 2d 1(1971); see also Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S. Ct. 631, 9 L. Ed. 2d 584
3(1963). When, as here with Huminski
s litigation, the prior restraint impinges upon the right of the press to communicate news and involves expression in the form of pure speech -- speech notconnected with any conduct -- the presumption of unconstitutionality is virtually insurmountable. Nebreska Press Assoc., 427 U.S. at 558, 570 (White, J., concurring) "We emphatically reject thenotion . . . that the First and Fourteenth Amendments afford the same kind of freedom to thosewho would communicate ideas by conduct such as patrolling, marching, and picketing on streetsand highways, as those amendments afford to those who communicate ideas by pure speech."Walker, 388 U.S. at 315-16 (citations omitted). Huminski
s litigation is
speech. "Anysystem of prior restraint . . . `comes . . . bearing a heavy presumption against itsconstitutional validity.'" (Southeastern Promotions, Ltd. v. Conrad, (1975) 420 U. S.546, 558.)In its two centuries of existence, the Supreme Court has never upheld a prior restraint on
 pure speech
. Even in wartime concerning the Pentagon Papers case. See New York Times Co. v.United States, 403 U.S. 713, 91 S. Ct. 2140, 29 L. Ed. 2d 822 (1971)In its decision on previous restraints on pure speech, Nebraska Press Association v.Stuart,
 427 U.S. 539,96 S. Ct. 2791, 49 L. Ed. 2d 683 (1976)
the Court struck down agag order issued to ensure the protection of a criminal defendant's Sixth Amendment right to afair trial. Intending to keep "the barriers to prior restraint . . . high unless we are to abandon whatthe Court has said for nearly a quarter of our national existence and implied throughout all of it",Id. at 561, the Court established a test so difficult to meet that Justice White was led to expresshis "grave doubt" that any prior restraint in the area would "ever be justifiable". Id. at 570(White, J., concurring); see also Goodale, The Press Ungagged: The Practical Effect on GagOrder Litigation of Nebraska Press Association v. Stuart, 29 Stan. L. Rev. 497, 497-98 (1977)("[T]he practical impact of the rule announced [in Nebraska Press Association v. Stuart] is to

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