BUCKHANNON — On May 27th, the Upshur County Prosecuting Attorney unexpectedly dropped the charges against Asad Derya Khan and Michael Lee Morehead after violating laws pertaining to election interference in the 2020 Buckhannon Municipal Election. Khan and Morehead were charged for anonymously circulating material to aid the defeat of Shelia Sines, a former candidate for Buckhannon City Council. Morehead was also charged for violating WV Code §3-8-11(c), which prohibits defamation from being used to aid the defeat of a political candidate.
West Virginia Code §3-8-12 reads, “A person may not publish, issue, or circulate, or cause to be published, issued, or circulated, any anonymous letter, circular, placard, radio or television advertisement, or other publication supporting or aiding the election or defeat of a clearly identified candidate.”
West Virginia State Code §3-8-11 states, “Any person who shall, knowingly, make or publish, or cause to be made or published, any false statement in regard to any candidate, which statement is intended or tends to affect any voting at any election whatever; Is guilty of a misdemeanor, and, on conviction thereof, shall be fined not more than $10,000, or confined in jail for not more than one year, or, in the discretion of the court, shall be subject to both such fine and imprisonment.”
Recently appointed Magistrate L.J. McCue presided over both cases, after former Upshur County Magistrates recused themselves due to conflicts of interest.
Assistant Prosecuting Attorney Kelly Cunningham conveyed to the court that the Upshur County Prosecutor’s Office was dropping the charges against both Asad Derya Khan and Michael Lee Morehead as the charges allegedly “cannot withstand a First Amendment Constitutional challenge; therefore, the State moves to dismiss.”
The victim, Shelia Sines, asked to address the court and stated, “These people tried to destroy my wellbeing and they came close to it. And again, Mr. Khan, you allowed him off and he makes a hand gesture going out the door to us. This is what you’re allowing to happen when you just dismiss these types of things.” Sines also pleaded for an explanation.
Before dismissing the charges in the State of West Virginia v. Michael Lee Morehead, Magistrate McCue responded, “The State—they’re the ones that do the research as to whether the evidence is there or not. We can only have a hearing and judgement on what is presented to us.”
This means that the Upshur County Prosecutor’s Office alone determined that both provisions in the West Virginia State Code are unconstitutional and unenforceable. The Upshur County Prosecutor’s Office would not provide an explanation to the press for legal precedents cited to explain their conclusions.
However, Attorney General Patrick Morrisey provided an opinion explaining how he felt WV Code §3-8-12 is in violation of McIntyre v. Ohio Elections Commission, in which the U.S. Supreme Court ruled a state law prohibiting the anonymous distribution of leaflets in the context of a political campaign is unconstitutional.
“The Ohio statute at issue mandated the inclusion of identifying information (e.g., the name and address of the person responsible for
the material being distributed) on any ‘notice, placard, dodger . . . or any other form of general publication’ that was designed to ‘promote the nomination or defeat of a candidate or promote the adoption or defeat of any issue, or to influence the voters in any election,'” Morrisey expressed in 2017.
“Relying on the principles first established in Talley, the Supreme Court held that ‘an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.'”
In the McIntyre decision, the Supreme Court essentially created the legal precedent that there is a “right to remain anonymous” in terms of lawful speech, but not defamatory speech. The manner in which WV Code 3-8-12(a) is worded, it broadly bans all anonymous speech. Therefore, it could be reasonably argued that the entire code is perhaps invalidated by this decision. However, the only issue is that the ‘right to anonymity’ is not mentioned in the Constitution. Any strict originalist or textualist would not agree with this decision.
Justice Antonin Scalia expressed it best in his dissent.
“At a time when both political branches of Government and both political parties reflect a popular desire to leave more
decision-making authority to the States, today’s decision moves in the opposite direction, adding to the legacy of inflexible central mandates (irrevocable even by Congress) imposed by this Court’s constitutional jurisprudence.
The… question relevant to our decision is whether a ‘right to anonymity’ is such a prominent value in our constitutional system that even protection of the electoral process cannot be purchased at its expense. The answer, again, is clear: no.
Several of our cases have held that in peculiar circumstances the compelled disclosure of a person’s identity would unconstitutionally deter the exercise of First Amendment associational rights. But those cases did not acknowledge any general right to anonymity, or even any right on the part of all citizens to ignore the particular laws under challenge. Rather, they recognized a right to an exemption from otherwise valid disclosure requirements on the part of someone who could show a ‘reasonable probability’ that the compelled disclosure would result in ‘threats, harassment, or reprisals from either Government officials or private parties.'”
In the State of West Virginia v. Asad Derya Khan and in the State of West Virginia v. Michael Lee Morehead they arguably did not desire to remain anonymous primarily out of the fear of “threats, harassment, or reprisals from either Government officials or private parties.” Their desire to remain anonymous was presumably because they wanted to conceal their identities for the purpose of disseminating defamatory statements and preventing personal repercussions. Anonymity was not used to prevent negative repercussions from making factual statements. It was used to anonymously violate state law and commit defamation against a political candidate. This is why they even went to the extent of using the alias ‘Ray Sines,’ the name of the victim’s husband, to commit these unlawful acts.
The name Ray Sines, was not viewable publically. Rather a search warrant was required to find the payment information and operator of the site. Therefore, it could be argued that they used the name Ray Sines as a deterrent to investigators, so that the blame for the illegal activity would be placed upon him, rather than themselves. This also made Ray Sines a victim in their endeavors.
Justice Scalia also established that while anonymous speech has a long history in the United States, its long legacy does not provide a constitutional guarantee to anonymity.
“Anonymous electioneering was not prohibited by law in 1791 or in 1868. In fact, it was widely practiced at the earlier date, an understandable legacy of the revolutionary era in which political dissent could produce governmental reprisal. I need not dwell upon the evidence of that, since it is described at length in today’s concurrence,” Scalia wrote.
“The practice of anonymous electioneering may have been less general in 1868, when the Fourteenth Amendment was adopted, but at least as late as 1837 it was respectable enough to be engaged in by Abraham Lincoln. But to prove that anonymous electioneering was used frequently is not to establish that it is a constitutional right.“
Most prosecutors and attornies will follow established legal precedents over strict textualist and originalist interpretations. Therefore, while the decision that the Upshur County Prosecutor’s Office made to dismiss §3-8-12(a) is disagreeable, it was not unpredictable. The WV Code §3-8-11(c) is still on the books, and it could also be argued that this should have been a decision made by the courts rather than small-town prosecutors, as it directly pertains to state election law.
While there may be an explanation for Upshur County Prosecutors to drop §3-8-12(a), there was no provided explanation whatsoever for dropping §3-8-11(c), which prohibits defamation from being used to aid the defeat of a political candidate.
In a discussion with Mountaineer Journal, legal counsel for the West Virginia Secretary of State expressed that §3-8-11(c) is constitutional, enforceable, and still on the books in West Virginia. This means that the Upshur County Prosecutor’s Office single-handedly refused to enforce a crucial law that ensures the integrity of our elections in the state of West Virginia.
The Opinion of the Court briefing in McIntrye stated, “The state interest in preventing fraud and libel stands on a different footing. We agree with Ohio’s submission that this interest carries special weight during election campaigns when false statements, if credited, may have serious adverse consequences for the public at large.”
Therefore, in this decision, the United States Supreme Court ruled that state laws prohibiting anonymous defamatory speech in elections are permitted constitutionally, let alone state laws that prohibit defamatory speech in elections regardless of if the author chooses to remain anonymous.
Scalia even explained that the court agreed with him on this particular instance in his dissent.
“There is no doubt, for example, that laws against libel and obscenity do not violate ‘the freedom of speech’ to which the First Amendment refers; they existed and were universally approved in 1791.”
Attorney General Patrick Morrisey also concurred, expressing, “On the question of state interest, the Court accepted that States have a legitimate interest in ‘preventing fraud and libel’ in the election context.”
Therefore, the decision made by the Upshur County Prosecutor’s Office undermines the integrity of all future elections in Upshur County, including the elected position of Prosecutor itself.
Justice Scalia also expressed the negative consequences of the McIntrye decision, which directly correlates to what was observed in these two cases.
“I am not sure what this complicated comparison means. I am sure, however, that (1) a person who is required to put his name to a document is much less likely to lie than one who can lie anonymously, and (2) the distributor of a leaflet which is unlawful because it is anonymous runs much more risk of immediate detection and punishment than the distributor of a leaflet which is unlawful because it is false. Thus, people will be more likely to observe a signing requirement than a naked ‘no falsity’ requirement; and, having observed that requirement, will then be significantly less likely to lie in what they have signed.
But the usefulness of a signing requirement lies not only in promoting observance of the law against campaign falsehoods (though that alone is enough to sustain it). It lies also in promoting a civil and dignified level of campaign debate— which the State has no power to command, but ample power to encourage by such undemanding measures as a signature requirement. Observers of the past few national elections have expressed concern about the increase of character assassination—’mudslinging’ is the colloquial term—engaged in by political candidates and their supporters to the detriment of the democratic process. Not all of this, in fact not much of it, consists of actionable untruth; most is innuendo, or demeaning characterization, or mere disclosure of items of personal life that have no bearing upon suitability for office.
Imagine how much all of this would increase if it could be done anonymously. The principal impediment against it is the reluctance of most individuals and organizations to be publicly associated with uncharitable and uncivil expression.
Consider, moreover, the increased potential for ‘dirty tricks.’ It is not unheard-of for campaign operatives to circulate material over the name of their opponents or their opponents’ supporters (a violation of election laws) in order to attract or alienate certain interest groups.”
Scalia also stated the sheer absurdity of the courts attempting to create a “right to remain anonymous.”
“It may take decades to work out the shape of this newly expanded right-to-speak-incognito,
even in the elections field. And in other areas, of course, a whole new boutique of wonderful First Amendment litigation opens its doors.
Must a parade permit, for example, be issued to a group that refuses to provide its identity, or that agrees to do so only under assurance that the identity will not be made public? Must a municipally owned theater that is leased for private productions book anonymously sponsored presentations? Must a government periodical that has a ‘letters to the editor’ column disavow the policy that most newspapers have against the publication of anonymous letters? Must a public university that makes its facilities available for a speech by Louis Farrakhan or David Duke refuse to disclose the on-campus or off-campus group that has sponsored or paid for the speech? Must a municipal ‘public-access’ cable channel permit anonymous (and masked) performers? The silliness that follows upon a generalized right to anonymous speech has no end.“
Additionally, another important question is why the Upshur County Sheriff’s Office charged Morehead alone for violating §3-8-11(c), when Khan also admittedly published posts distributing the defamatory website. Khan was only charged with the statute that was under question constitutionally.
Furthermore, both of these violations were provided to the Upshur County Sheriff’s Department by the office of the Secretary of State, who assisted with the investigation along with their legal counsel. If neither of these state code violations were enforcible under the defamatory circumstances, why would the legal counsel for the West Virginia Secretary of State’s office provide these violations to the investigating officer as a criminal referral?
At the conclusion of the hearing of the State of West Virginia v. Michael Lee Morehead, Sheila’s husband, Ray Sines asked to address the Court prior to the adjournment.
“To me, if somebody broke the law, they were arrested for it, they confessed to it, and she [Cunningham] turns around and tries to use a technicality to get them out… She is supposed to be fighting for my wife, she’s not supposed to be fighting for them,” he expressed. “This is not justice at all.”
It is also important to note that Magistrate McCue did not specify whether the dismissal with “with prejudice” or “without prejudice.”
When a case is dismissed “with prejudice,” it is ruled as being dismissed permanently and cannot be brought back to court. However, when a case is dismissed “without prejudice,” it is not a permanent decision. This means that both of these cases could potentially be legally tried again due to this technicality on the part of Magistrate McCue, and error on the part of the Upshur County Prosecutor’s Office erroneously invalidating a constitutionally valid and enforceable law (§3-8-11(c)).
A case dismissed without prejudice means the opposite. It’s not dismissed forever. The person whose case it is can try again.
The question remains who made the decision in the Upshur County Prosecutor’s Office that §3-8-11(c) is unconstitutional, and what was the legal precedent they cited for making their decision? The defamation campaign leveled against Shelia Sines was very public in her campaign for a municipal council seat, and likely influenced the results of the election. The lack of transparency from the Upshur County Prosecutor’s Office disrespects not only the victim and a free press, but it also disrespects our democratic process and every voter in Upshur County, including the many voters who elected Prosecutor Bryan Hinkle into his previously uncontested position.
If we are to demand fair and free elections at a national level, it had better start in our own community.