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Md. flier ban may be unconstitutionalA Maryland judge’s ban on distribution of campaign literature that state officials contend is misleading likely amounts to a prior restraint that runs afoul of the First Amendment, two prominent lawyers in the field told POLITICO.
Acting on an emergency request from Maryland Attorney General Doug Gansler, Prince George’s County Circuit Court Judge Larnzell Martin Jr. issued an order Tuesday evening barring anyone from disseminating a sample ballot for the Sept. 14 primary that was recently mailed to Democratic voters and distributed at an early voting site in Oxon Hill, Md.
"No materials in the form attached shall be distributed by mail, in person or otherwise under penalty of law," Martin wrote in the temporary restraining order. “Immediate, substantial and irreparable harm in the form of presentation of false and misleading advocacy information to the electorate will result if such violations were to continue.”
The flier, styled as an "Official Democratic Ballot," contains at least one error, listing a candidate as running for a county office she isn't running for. The main objection from some local candidates, however, is that photos of Gov. Martin O'Malley (D-Md.), Rep. Steny Hoyer (D-Md.) and others on the pamphlet suggest the men endorse the candidates marked inside, which in several cases is not true.
But attorneys said Martin acted too hastily in banning the brochure before hearing from whoever produced it.
“If the injunction is a preliminary injunction entered without a full trial on the merits, then it is an unconstitutional prior restraint,” Eugene Volokh, a professor of First Amendment law at the UCLA School of Law, wrote in an e-mail. *snip* http://dyn.politico.com/members/forums/thread.cfm?catid=1&subcatid=2&threadid=4483272
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