Case No IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT. SUSAN B. ANTHONY LIST, et al., Plaintiffs-Appellees,

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1 Case: Document: 31 Filed: 04/07/2015 Page: 1 Case No IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT SUSAN B. ANTHONY LIST, et al., Plaintiffs-Appellees, v. STEVEN B. DRIEHAUS, et al., Defendants and OHIO ELECTIONS COMMISSION, et al. Appellants-Defendants. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO, CASE NOS. 1:10CV00720 AND 1:10CV00754 BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION OF OHIO FOUNDATION, INC. AS AMICUS CURIAE IN SUPPORT OF APPELLEES SUSAN B. ANTHONY LIST AND COALITION OPPOSED TO ADDITIONAL SPENDING AND TAXES David J. Carey David.Carey@thompsonhine.com Thompson Hine LLP 41 South High Street, Suite 1700 Columbus, Ohio Phone: (614) Fax: (614)

2 Case: Document: 31 Filed: 04/07/2015 Page: 2 Freda J. Levenson flevenson@acluohio.org The American Civil Liberties Union of Ohio Foundation, Inc Chester Avenue Cleveland, Ohio Phone: (216) Attorneys for Amicus Curiae The American Civil Liberties Union of Ohio Foundation, Inc.

3 Case: Document: 31 Filed: 04/07/2015 Page: 3 DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTERESTS Pursuant to Sixth Circuit Rule 26.1, Amicus Curiae the American Civil Liberties Union of Ohio Foundation, Inc. (the ACLU ) makes the following disclosures: 1. The ACLU is not a subsidiary or affiliate of a publicly owned corporation. 2. No publicly held corporation that is not a party to the appeal has a financial interest in the outcome by way of any alignment or affiliation with the ACLU. s/ David J. Carey David J. Carey Date: April 6, 2015 i

4 Case: Document: 31 Filed: 04/07/2015 Page: 4 TABLE OF CONTENTS Page DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTERESTS... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iii STATEMENT OF INTEREST OF AMICUS CURIAE... vi AUTHORSHIP STATEMENT... vii SUMMARY...1 ARGUMENT...2 I. Free Political Discourse Is Indispensable To Democratic Self-Governance...2 A. Democratic Government Relies Upon Unrestricted Political Speech...2 B. Previous Attempts To Legislate Political Truth Or Create A Government Truth-Telling Authority Have Led To Partisan Abuse...4 II. It Is An Affront To The First Amendment For Government To Decide Political Truth...7 A. Determining Falsity In Political Speech Is Extremely Problematic, And Attempting To Do So Creates An Unavoidable Chilling Effect...7 B. The Statute Wrongly Presumes That False Speech Necessarily Causes Harm That Cannot Be Remedied By Counterspeech...9 CONCLUSION...13 CERTIFICATE OF SERVICE...14 ii

5 Case: Document: 31 Filed: 04/07/2015 Page: 5 TABLE OF AUTHORITIES Page(s) Cases Brown v. Hartlage, 456 U.S. 45 (1982)...8, 9 Buckley v. Valeo, 424 U.S. 1 (1976)...2 Cantwell v. Connecticut, 310 U.S. 296 (1940)...7 Citizens United v. FEC, 558 U.S. 310 (2010)...2 Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)...12 Hustler Magazine v. Falwell, 485 U.S. 46 (1988)...7 Illinois ex rel. Madigan v. Telemarketing Assocs., Inc., 538 U.S. 600 (2003)...8 McIntyre v. Ohio Elections Comm n, 514 U.S. 334 (1995)...12 New York Times Co. v. Sullivan, 376 U.S. 254 (1964)...3, 4, 11, 12 Pestrak v. Ohio Elections Comm n, 670 F. Supp (S.D. Ohio 1987)...6 Planned Parenthood v. Am. Coal. of Life Activists, 244 F.3d 1007 (9th Cir. 2001)...8 State ex rel. Public Disclosure Comm n v. 119 Vote No! Comm., 937 P.2d 691 (Wash. 1998)...6, 10 Republican Party of Minn. v. White, 536 U.S. 765 (2002)...2 iii

6 Case: Document: 31 Filed: 04/07/2015 Page: 6 Rickert v. Pub. Disclosure Comm n, 168 P.3d 826 (Wash. 2007)...5, 8 Rosenaur v. Scherer, 105 Cal. Rptr. 2d 674 (Cal. Ct. App. 2001)...8 Thomas v. Collins, 323 U.S. 516 (1945)...7 United States v. Alvarez, U.S., 132 S. Ct (2012)...9, 10, 11 United States v. Associated Press, 52 F. Supp. 362 (S.D.N.Y. 1943)...3 Watts v. United States, 394 U.S. 705 (1969)...7 Whitney v. California, 274 U.S. 357 (1927)...3 Statutes An Act for the Punishment of Certain Crimes Against the United States, 5th Cong., 2d Sess., ch. 74 (1798) [Sedition Act]...4, 6, 11 Espionage Act of Ohio Revised Code (B)(9)-(10)...passim U.S. Const. amend. I....passim Other Authorities 5 Annals of Congress 2112 (1798)...4 Geoffrey R. Stone, American Booksellers Association v. Hudnut: The Government Must Leave to the People the Evaluation of Ideas, 77 U. Chi. L. Rev (2010)...3 Geoffrey R. Stone, Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism (2004)...4, 5 iv

7 Case: Document: 31 Filed: 04/07/2015 Page: 7 Michael Kent Curtis, The Curious History of Attempts to Suppress Antislavery Speech, Press, and Petition in , 89 Nw. U. L. Rev. 785 (1995)...2 William P. Marshall, False Campaign Speech and the First Amendment, 153 U. Pa. L. Rev. 285 (2004)...8 v

8 Case: Document: 31 Filed: 04/07/2015 Page: 8 STATEMENT OF INTEREST OF AMICUS CURIAE The ACLU incorporates by reference the Statement of Interest set forth in the accompanying Motion of the American Civil Liberties Union of Ohio Foundation, Inc. to File a Brief as Amicus Curiae in Support of Appellees Susan B. Anthony List and Coalition Opposed to Additional Spending and Taxes. With regard to authority to file, the ACLU seeks the leave of this Court pursuant to Federal Rule of Appellate Procedure 29(a). Accordingly, the ACLU files this brief alongside its motion for leave to file, pursuant to Federal Rule of Appellate Procedure 29(b). vi

9 Case: Document: 31 Filed: 04/07/2015 Page: 9 AUTHORSHIP STATEMENT Pursuant to Federal Rule of Appellate Procedure 29(c)(5), Amicus Curiae the American Civil Liberties Union of Ohio Foundation, Inc. ( ACLU ) declares: 1. No party s counsel authored this brief in whole or in part; 2. No party or party s counsel contributed money intended to fund the preparation or submission of the brief; and 3. No person, other than the ACLU, its members, or its counsel, contributed money intended to fund the preparation or submission of the brief. vii

10 Case: Document: 31 Filed: 04/07/2015 Page: 10 SUMMARY Ohio Revised Code (B)(9)-(10), Ohio s political false-statements statute, presents a clear facial violation of the First Amendment for the reasons set forth below. First, the First Amendment protects free political expression foremost among all areas of speech. American self-governance requires that the public be well-informed not only in facts, but in the broad range of political opinions present in the marketplace of ideas. Restrictions on political speech must therefore be regarded with particular suspicion. Second, previous attempts to legislate a concept of objective truth have ended in failure and partisan abuse. The institutions of government cannot be wielded in this fashion, and attempts to do so will be co-opted for partisan gain. Third, political speech is by nature hyperbolic, vitriolic, and imprecise. It presents unique difficulties in distinguishing fact from opinion, and truth from falsity. Attempts to regulate its veracity are doomed to overbreadth, and will result in a chilling effect on political speech. Fourth, Ohio s statute assumes that general public harm will result from any false statement about a candidate during an election season, whether defamatory or complimentary. The Supreme Court has repeatedly made clear that falsity alone does not strip speech of First Amendment protection. Moreover, absent a clear

11 Case: Document: 31 Filed: 04/07/2015 Page: 11 showing of very tangible harm, the government may not take on the role of arbiter of truth in the political realm. To do so would be to disregard the role of counterspeech and instead cast the government as the final say in political discourse. ARGUMENT I. Free Political Discourse Is Indispensable To Democratic Self- Governance A. Democratic Government Relies Upon Unrestricted Political Speech Political speech, whether on the qualifications of candidates or on substantive issues affecting elections, lies at the very heart of First Amendment freedoms. E.g., Republican Party of Minn. v. White, 536 U.S. 765, 780 (2002); Buckley v. Valeo, 424 U.S. 1, 14 (1976); see U.S. Const. amend. I. It has been so since the Amendment s inception, for very practical reasons. Whereas an eighteenth century English monarchy could impose limitations on public debate without compromising Parliament s ability to govern, in the American system it is the people who rule. They cannot do so effectively or wisely when denied access to the full range of political opinions and viewpoints. See, e.g., Michael Kent Curtis, The Curious History of Attempts to Suppress Antislavery Speech, Press, and Petition in , 89 Nw. U. L. Rev. 785, 850 (1995); Buckley, 424 U.S. at 14; Citizens United v. FEC, 558 U.S. 310, 340 (2010) ( political speech must prevail against laws that would suppress it, whether by design or inadvertence ); 2

12 Case: Document: 31 Filed: 04/07/2015 Page: 12 New York Times Co. v. Sullivan, 376 U.S. 254, (1964) ( [T]he right of free public discussion of the stewardship of public officials was thus, in Madison s view, a fundamental principle of the American form of government[.] ). This founding principle informs what is surely the most important rule of First Amendment jurisprudence, namely: [I]n no case may the majority conscript the power of government to suppress the advocacy of an idea because the majority believes the idea to be false or unwise or wrongheaded or dangerous and does not trust other citizens to make the right decisions about such views in the political process. Geoffrey R. Stone, American Booksellers Association v. Hudnut: The Government Must Leave to the People the Evaluation of Ideas, 77 U. Chi. L. Rev. 1219, 1227 (2010) (describing this rule as the prime directive of the First Amendment). The corollary to this rule is Justice Brandeis oft-quoted maxim that the remedy for falsehood and fallacies is more speech, not enforced silence. Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring); see also United States v. Associated Press, 52 F. Supp. 362, 372 (S.D.N.Y. 1943) (Hand, J.) (the First Amendment presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection ). 3

13 Case: Document: 31 Filed: 04/07/2015 Page: 13 B. Previous Attempts To Legislate Political Truth Or Create A Government Truth-Telling Authority Have Led To Partisan Abuse Suppression of political speech on the grounds that its content is dangerous or false is hardly a novel idea. Past implementations of this notion have invariably led to the suppression of minority political opinions. Most infamous was the Sedition Act of 1798, rightly counted among the nation s worst offenses against free political discourse. Like R.C (B)(9)-(10), it prohibited only a subcategory of factually false statements though the Sedition Act limited itself to false and defamatory statements, unlike Ohio s statute. See An Act for the Punishment of Certain Crimes Against the United States, 5th Cong., 2d Sess., ch. 74 (1798). It was enacted on the premise that public political discourse had devolved into venomous and unfounded attacks, fueled by opposition newspapers that the Federalist Party considered to be dishonest, abusive, and utterly irresponsible. Geoffrey R. Stone, Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism (2004). Its proponents argued that it was absurd to suggest that freedom of speech could be abridged by a ban on malicious lying. See 5 Annals of Congress 2112 (1798). Though it was never taken before the Supreme Court, the Act s constitutional invalidity was unquestionable; it has been cited in the decades and centuries since as a perhaps the paradigmatic example of a First Amendment violation. E.g., New York Times, 376 U.S. at

14 Case: Document: 31 Filed: 04/07/2015 Page: 14 Notably, the Sedition Act s enforcement was a nakedly partisan enterprise in favor of its Federalist proponents. Federalist-appointed judges and overzealous prosecutors used the law as a cudgel against Jeffersonian Republican critics of the majority, convicting defendants ranging from a United States Congressman, to opposition journalists, to a vagabond radical who wandered from town to town preaching the evils of the Federalist Government. Stone, Perilous Times, supra at Subsequent attempts to legislate truth throughout American history have followed a similar path of unbalanced enforcement. A majority in power determines what is true in a live political debate and employs the mechanisms of law enforcement to suppress dissent, on the basis that such dissent presents some sort of danger. See, e.g., Curtis, supra, at (surveying antebellum attempts to prohibit discussion of the abolition of slavery); Stone, Perilous Times, supra at (describing how the purportedly narrow Espionage Act of 1917 was wielded by the Wilson administration to suppress antiwar sentiment). The Sedition Act s example bears directly on the present. Ohio s political false-statements statute criminalizes political speech in much the same way as its eighteenth-century predecessor. It limits free expression in political debate surrounding elections, which is precisely that area of public discourse most critical to our democracy s viability, and most sensitive to abuse by political institutions for partisan gain. See Rickert v. Pub. Disclosure Comm n, 168 P.3d 826, 850 5

15 Case: Document: 31 Filed: 04/07/2015 Page: 15 (Wash. 2007) (noting that a law very similar to R.C (B) bore resemblance to the Sedition Act and was accordingly deserving of condemnation ). Indeed, Ohio s statute effectively places authority to decide highly charged issues of political truth or falsity in the hands of a government institution. 1 Regardless of the intent at the outset, history and practicality tell us that this is an untenable measure, a well-intentioned tool that will inevitably become a weapon of partisan manipulation. See, e.g., Pestrak v. Ohio Elections Comm n, 670 F. Supp. 1368, 1376 (S.D. Ohio 1987) (noting that public hearings on political veracity may be manipulated for partisan gain), rev d in part on other grounds, 926 F.2d 573 (6th Cir. 1991); State ex rel. Public Disclosure Comm n v. 119 Vote No! Comm., 957 P.2d 691, (Wash. 1998) (noting that a similar false statements law was manipulated for political ends). It simply is not the business of government to determine with force of law what is or is not true in the realm of political debate, whether on a grand scale as with the anti-abolition movement or on an ad hoc basis, as with the Sedition Act or R.C (B)(9)-(10). In other words: [I]t cannot be the duty, because it is not the right, of the state to protect the public against false doctrine. The very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind through regulating the press, speech, 1 While criminal sanctions under are administered through the courts, the initial determination of falsity may be made by as few as two people on a threeperson panel. 6

16 Case: Document: 31 Filed: 04/07/2015 Page: 16 and religion. In this field every person must be his own watchman for truth, because the forefathers did not trust any government to separate the truth from the false for us. Thomas v. Collins, 323 U.S. 516, 545 (1945) (Jackson, J., concurring). II. It Is An Affront To The First Amendment For Government To Decide Political Truth A. Determining Falsity In Political Speech Is Extremely Problematic, And Attempting To Do So Creates An Unavoidable Chilling Effect The State of Ohio has chosen to regulate an area of speech in which it is extremely and abnormally difficult to distinguish between fact and opinion, or to determine veracity in any objective fashion. The restrictions it has imposed rest on the presumption that in this most carefully protected realm of expression where hyperbole and arguable mischaracterization are the norm, where the tenets of one man may seem the rankest error to his neighbor, and where caustic criticism of public figures is inevitable the government may nonetheless act as a neutral arbiter of truth. Cantwell v. Connecticut, 310 U.S. 296, 310 (1940); see also Hustler Magazine v. Falwell, 485 U.S. 46, (1988) (noting that public criticism is a prerogative of American citizenship, and such criticism will not always be reasoned or moderate ). Not only is this notion abominable to First Amendment doctrine and history, it is also simply impracticable. Numerous courts have recognized the difficulty of attempting to shoehorn a concept of objective truth into political discourse at all, let alone attempting to enforce it. E.g., Watts v. United States, 394 U.S. 705, 708 7

17 Case: Document: 31 Filed: 04/07/2015 Page: 17 (1969) ( The language of the political arena * * * is often vituperative, abusive, and inexact ); Planned Parenthood v. Am. Coal. of Life Activists, 244 F.3d 1007, 1019 (9th Cir. 2001) (acknowledging the well-recognized principle that political statements are inherently prone to exaggeration and hyperbole ) (citation omitted); Rickert, 168 P.3d at 829 (a purported interest in preventing false statements naively assumes that the government is capable of correctly and consistently negotiating the thin line between fact and opinion in political speech ); Rosenaur v. Scherer, 105 Cal. Rptr. 2d 674, 677 (Cal. Ct. App. 2001) ( That which might be a statement of fact under other circumstances may become a statement of opinion * * * when uttered in the political context. ). While surely there do exist some objectively false utterances in politics, the political realm is particularly rife with ambiguous or mixed statements of opinion and fact. William P. Marshall, False Campaign Speech and the First Amendment, 153 U. Pa. L. Rev. 285, 299 (2004) ( the question of whether a statement will be viewed as true or false, as fact or hyperbole, might depend largely on the perspective and/or the motivation of the decision maker ). Moreover, the Supreme Court has repeatedly acknowledged that free expression requires breathing space. E.g., Illinois ex rel. Madigan v. Telemarketing Assocs., Inc., 538 U.S. 600, 620 (2003); Brown v. Hartlage, 456 U.S. 45, 60 (1982). This is especially so in the political realm not only because 8

18 Case: Document: 31 Filed: 04/07/2015 Page: 18 free political expression is necessary for democratic governance, but because it is difficult to avoid a chilling effect when the range of what is actually being prohibited is even slightly unclear. Brown, 456 U.S. at 60; United States v. Alvarez, U.S., 132 S. Ct. 2537, 2547 (2012). In Alvarez the case correctly cited by Appellee Susan B. Anthony List as dispositive of this matter the law at issue dealt entirely with the simplest sort of false speech: that which is easily verifiable and obviously factual. 132 S. Ct (2012). A claim to have been decorated for military service is a cut-and-dried statement of fact; it is difficult to imagine how it could be perceived as an opinion. Its veracity is easily investigated. Id. at 2552 (Breyer, J., concurring). Yet even this speech retains its First Amendment protection. Notable among the Court s warnings was a practical one, that government authority to compile a list of subjects about which false statements are punishable * * * has no clear limiting principle. Id. at If punishing even the simplest false statement of obvious fact denies constitutional breathing space, the same certainly must be so for attempting to impose a concept of objective truth on the tangled web of political expression. B. The Statute Wrongly Presumes That False Speech Necessarily Causes Harm That Cannot Be Remedied By Counterspeech The Ohio Elections Commission has repeatedly cast (B)(9)-(10) as merely a protection against defamation and fraud. It is true that Alvarez does not change the law that defamation and fraud are unprotected; it is also true that in 9

19 Case: Document: 31 Filed: 04/07/2015 Page: 19 defamation and fraud cases, a fact-finder determines with the force of law whether a statement is factually false. The law at issue here, however, goes well beyond fraud or defamation law; indeed, any purportedly false statement may be punished regardless of whether it defames a person or deprives an individual of money. One conceptual distinction merits particular emphasis. Defamation and fraud are actionable precisely because a very clearly defined private right has been violated, one that cannot be effectively defended by counterspeech alone. The First Amendment does not protect defamatory or fraudulent speech, because the harm they bring is not generalized or vague. E.g., State ex rel. Public Disclosure Comm n v. 119 Vote No! Comm., 937 P.2d 691, 708 (Wash. 1998); Alvarez, 132 S. Ct. at The Court reinforced this principle in Alvarez, noting that the government s examples of unprotected false speech all derive from cases discussing defamation, fraud, or some other legally cognizable harm associated with a false statement. Id. It rejected unequivocally the contention that false statements are unprotected by the First Amendment simply because they are false. Id. Thus, it is not the mere falsity of a statement that makes fraud or defamation actionable, but clear and distinct damages. Section (B)(9)-(10) requires no such damage in order to subject the speaker to criminal prosecution. Instead, it assumes that damage to the public will 10

20 Case: Document: 31 Filed: 04/07/2015 Page: 20 necessarily result from political statements during election season that merely because a statement about a candidate is false, it must cause some form of diffuse damage to the public that requires the state s direct intervention. Statements need not be defamatory indeed, they may even be laudatory in order to be actionable. See R.C (B)(9)-(10). Even the infamous Sedition Act drew up short of such a broad prohibition. The Court in Alvarez again reminded the government that in the ordinary course of events, the remedy for false speech is true speech. 132 S. Ct. at It is an enormous overreach for the state to disregard this principle and insert itself into public political discussion not to prevent a private harm, but on the basis that political debate has been poisoned by what it perceives as falsity. The consequences of this action run even deeper than the inevitable chilling effect on speech. In effect, the government s decision to substitute its own judgment of veracity for that of the public amounts to a declaration that the public discourse has failed so badly that it need not be afforded an opportunity to right itself. This concept stands opposed to our entire self-governing idea. See Curtis, supra, at 850; New York Times, 376 U.S. at Judge Easterbrook decried such a drastic step in one of the defining free speech decisions of the past century: A power to limit speech on the ground that truth has not yet prevailed and is not likely to prevail implies the power to declare truth. At 11

21 Case: Document: 31 Filed: 04/07/2015 Page: 21 some point the government must be able to say * * * We know what the truth is, yet a free exchange of speech has not driven out falsity, so that we must now prohibit falsity. If the government may declare the truth, why wait for the failure of speech? Under the First Amendment, however, there is no such thing as a false idea, so the government may not restrict speech on the ground that in a free exchange truth is not yet dominant. At any time, some speech is ahead in the game; the more numerous speakers prevail. Supporters of minority candidates may be forever excluded from the political process because their candidates never win, because few people believe their positions. This does not mean that freedom of speech has failed. Id. at 331 (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974)). Section (B)(9)-(10) surely derives from more praiseworthy intentions than the Federalist desire to squelch their opposition, or the slaveholding South s desire to silence abolitionism as group libel. Yet it amounts to the same conceptual step: a government determination that it has the final knowledge of truth and falsity, and has the right to enforce that knowledge with force of law. The statute does not limit itself to libel or fraud, which fall within a zone of permissible restriction because of the tangible harm they inflict. See, e.g., McIntyre v. Ohio Elections Comm n, 514 U.S. 334, 344 (1995) (striking Ohio s prohibition on anonymous leafleting, where the law was not limited to libelous statements). The government has not shown any compelling need for protections beyond the law of defamation, nor has it narrowly tailored a solution to its claimed interest. Rather, it has exercised a nuclear option: bypassing our traditional 12

22 Case: Document: 31 Filed: 04/07/2015 Page: 22 counterspeech remedy on the basis that free speech has failed. Quite simply, no government entity can be trusted to make such a momentous decision absent a compelling interest and a clear showing of harm. CONCLUSION For the foregoing reasons, the judgment of the district court should be affirmed. Respectfully submitted, s/ David J. Carey David J. Carey David.Carey@thompsonhine.com Thompson Hine LLP 41 South High Street, Suite 1700 Columbus, Ohio Phone: (614) Fax: (614) Freda J. Levenson flevenson@acluohio.org The American Civil Liberties Union of Ohio Foundation, Inc Chester Avenue Cleveland, Ohio Phone: (216) Attorneys for Amicus Curiae The American Civil Liberties Union of Ohio Foundation, Inc. 13

23 Case: Document: 31 Filed: 04/07/2015 Page: 23 CERTIFICATE OF SERVICE I certify that on April 6, 2015, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to all attorneys of record. s/ David J. Carey David J. Carey 14

24 Case: Document: 31 Filed: 04/07/2015 Page: 24 CERTIFICATE OF COMPLIANCE WITH RULE 32(a) 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 3,069 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and type style requirements of Fed. R. App. P. 32(a)(6). Specifically, it has been prepared in a proportionally spaced typeface using Microsoft Word in 14-point Times New Roman. s/ David J. Carey David J. Carey 15