[EL] Doe v. Reed, more news
JBoppjr at aol.com
JBoppjr at aol.com
Tue Oct 18 06:45:14 PDT 2011
Trevor, I don't think that the government should require people to identify
their political views, if it is likely to lead to retaliation for the
exercise of First Amendment rights. The problem is that it is government action
that triggered this. Jim Bopp
In a message dated 10/18/2011 2:54:12 A.M. Eastern Daylight Time,
tpotter at capdale.com writes:
I cannot speak for Adam, but as for myself I will note that Brad's
caricature of my position is amusingly kafkaesque-but not accurate. No citizen is
obligated to initiate anyof this legal process, but when one voluntarily
does enter the public arena one sould be prepared for a public debate. Taking
steps to put a measure on the ballot begins a public legal process that
has specific legal effect. One is asserting that one meets the state's
requirements for having a signature counted towards a state-mandated minimum
number of signatures. The signature has specific results- -it may result in
the placement of a measure on the ballot for popular vote, and in the
enactment of law (or over-ruling of law, as the case may be). When a citizen
takes advantage of state legal provisions to initiate a change of the law,
our democracy can require that this initiation of public action be
public--if only to allow others to ascertain whether the signatures meet the legal
requirements for such action.
The separate question is whether Jim thinks firing someone for non-job
related reasons should be limited by the state. He is certainly free to take
the view that private employers should be free to discriminate on any
non-work related basis they choose--though this would appear to be the triumph of
a political value over an economic one (contra to Brad's claim), and to
undermine Jim's objection to employers exercising this right where it exists.
Trevor
Sent by Good Messaging (www.good.com)
-----Original Message-----
From: Smith, Brad [mailto:BSmith at law.capital.edu]
Sent: Monday, October 17, 2011 11:24 PM Eastern Standard Time
To: law-election at uci.edu
Subject: Re: [EL] Doe v. Reed, more news
There is an interesting divide here. The Bonin/Potter position seems to be
that government should force speakers who are concerned about harassmanet
to disclose their identities, thus creating a potential harassment problem.
They then propose that government attempt to solve that harassment problem
by making it more difficult to fire people - forcing employers, including
gays, to hire and retain people they may not want to hire, and causing
further sclerosis in labor markets, which, I'm going to guess, they will then
ask government to solve with stimulus plans and job plans and the like. And
they seem to think it woefully hypocritical for Jim to disagree.
Jim's position as I understand it - which would be mine - is that it is
better for government not to create the first problem in the series. And that
difference reflects a fairly broad fault line in political thinking that
goes well beyond this particular issue.
Meanwhile, as Steve Klein noted, petition signatures as in Doe may be
different from general advocacy in that they have a legal effect. But at least
on other forms of advocacy, the government has no interest - compelling or
non-compelling - in assisting persons in organizing boycotts and
harassment, or even in knowing who to "criticize."
But some have suggested that this is no problem, since harassed persons
can call the police, or perhaps bring a lawsuit. I am looking forward to
greater reliance on post-hoc policing by the police and lawsuits. Having this
philosophy catch on could leave to a dramatic reduction in the regulatory
state, which I would favor. I would rather not begin with constitutional
rights, but you've got to start somewhere, I guess.
Finally, it is unfortunate that Justice Scalia is wrong on this issue. I
doubt that he really has thought much about whether the disclosure craze has
made our politics more genteel, but for now that is his view. Justice
Scalia is a very fine judge, as Kevin Hamilton's comment seems to recognize.
Nevertheless, as when conservatives like to point to Justice Stevens decision
upholding Indiana's voter ID law, but I don't put much special weight on
his opinion merely because he is allied a bit differently than usual. I just
think he's wrong on this one.
Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
(614) 236-6317
http://www.law.capital.edu/Faculty/Bios/bsmith.asp
________________________________
From: law-election-bounces at department-lists.uci.edu on behalf of Trevor
Potter
Sent: Mon 10/17/2011 9:12 PM
To: Bonin, Adam C.; JBoppjr at aol.com; rhasen at LAW.UCI.EDU;
law-election at uci.edu
Subject: Re: [EL] Doe v. Reed, more news
I too was interested in Jim's complaint that contributors in CA were fired
from their jobs for non-work performance related reasons. In context, he
clearly thinks these employer actions were wrong. Does he therefore support
laws to protect employees from such firings ( a protection long sought by
gay people). Or does his objection to such actions only apply to
protecting anti-same sex marriage activists?
Trevor Potter
Sent by Good Messaging (www.good.com)
-----Original Message-----
From: Bonin, Adam C. [mailto:ABonin at cozen.com]
Sent: Monday, October 17, 2011 08:29 PM Eastern Standard Time
To: JBoppjr at aol.com; rhasen at LAW.UCI.EDU; law-election at uci.edu
Subject: Re: [EL] Doe v. Reed, more news
The answer to harassment at work and the like is to extend civil rights
laws to protect employees from being discriminated against on the basis of
political beliefs expressed outside the workplace. Prof. Volokh compiled a
few such statutes back in the day:
http://volokh.com/archives/archive_2006_04_30-2006_05_06.shtml#1146594920
Of course, it would also be nice for folks to have such protections for
*being* gay.
________________________________
From: JBoppjr at aol.com [JBoppjr at aol.com]
Sent: Monday, October 17, 2011 8:06 PM
To: Bonin, Adam C.; rhasen at LAW.UCI.EDU; law-election at uci.edu
Subject: Re: [EL] Doe v. Reed, more news
They will be harassed, if there is an organized campaign to do so, like
was directed at the Prop 8's contributors. That is a decision for the
homosexual rights strategist to make.
As far as the police, most harassment is not criminal in nature, like
firing an employee, as happened to some Prop. 8 contributors. When the
harassment raises to the level of criminal activity, the record in Doe shows that
not a single perpetrator was caught by the police and brought to justice,
because the perpetrators just don't leave their business cards. So even if
the police were willing to enforce the law, they are unable to do so. So
calling the police is meaningless and futile.
So it is let it rip time. How fun for all the pseudo revolutionaries out
there.
And Adam, when the worm turns, as it inevitably will, call me. Jim Bopp
In a message dated 10/17/2011 6:05:24 P.M. Eastern Daylight Time,
ABonin at cozen.com writes:
FYI (well, not yours Jim, because you know it already), the State of
Washington has already released the names:
http://hosted.ap.org/dynamic/stories/U/US_DOMESTIC_PARTNERSHIPS_SIGNATURES?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT&
CTIME=2011-10-17-17-42-39
So we'll see if what results is robust First Amendment activity or
something else. (And even if we do, that's why we have police to enforce the
law.)
From: JBoppjr at aol.com [mailto:JBoppjr at aol.com]
Sent: Monday, October 17, 2011 5:42 PM
To: Bonin, Adam C.; rhasen at LAW.UCI.EDU; law-election at uci.edu
Subject: Re: [EL] Doe v. Reed, more news
Yes, and that is because there was no organized campaign to harass the
R-71 contributors like the organized campaign to harass the Prop 8
contributors. The names and addresses of the Prop 8 contributors were posted on the
Internet and one site map quested them. No one did this to the R-71
contributors. However, one of the organizations asking for the R-71 signers were
one of the very organizations that organized the harassment of the Prop 8
contributors. So, in California, the strategy was harassment of the Prop 8
contributors while in Washington the strategy was to harass the r-71 signers.
If this ruling stands, then it is open season on all contributors,
petition signers, etc. Those with scant regard for the democratic process will be
free to employ tactics of harassment and intimidation against political
opponents. Blacks, gays and leftist were harassed yesterday; conservatives and
Christians are harassed today. And no one is safe from the thugs and
bullies tomorrow. Jim Bopp
In a message dated 10/17/2011 5:25:52 P.M. Eastern Daylight Time,
ABonin at cozen.com writes:
Jim, as you know, the Court also notes that the financial contributors to
the anti-gay efforts in Washington had long been disclosed, and they
suffered no harm as a result:
Further still, [Protect Marriage Washington] secured donations to finance
the campaign for R-71. It is undisputed that between May and November of
2009, PMW reported 857 contributions to its cause. The names and other
personally identifying information of these donors has been public knowledge for
over two years. Doe has had ample time and opportunity to contact these
individuals, some of which likely signed the R-71 petition in addition to
donating to PMW's R-71 campaign. Even if none of these donors signed the R-71
petition, their experiences are far more closely related to the issues at
hand than the random "evidence" supplied by Doe based on experiences of
individuals around the country and the now stale experiences of those persons
involved with Proposition 8. However, Doe has failed to supply sufficient,
competent evidence that the publically known donors - as active supporters of
R-71 - have experienced sufficient threats, harassment, or reprisals based
on the disclosure of their information in connection to R-71 that would
satisfy the reasonable probability standard that Doe must meet in this case.
Adam C. Bonin | Cozen O'Connor
1900 Market Street | Philadelphia, PA, 19103 | P: 215.665.2051 | F:
215.701.2321
abonin at cozen.com<mailto:abonin at cozen.com> | www.cozen.com
From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of JBoppjr at aol.com
Sent: Monday, October 17, 2011 5:16 PM
To: rhasen at LAW.UCI.EDU; law-election at uci.edu
Subject: Re: [EL] Doe v. Reed, more news
This statement in the court's opinion is the key to the court's erroneous
decision:
"While Plaintiffs have not shown serious and widespread threats,
harassment, or reprisals against the signers of R-71, or even that such activity
would be reasonably likely to occur upon the publication of their names and
contact information, they have developed substantial evidence that the public
advocacy of traditional marriage as the exclusive definition of marriage,
or the expansion of rights for same sex partners, has engendered hostility
in this state, and risen to violence elsewhere, against some who have
engaged in that advocacy."
The court required the Plaintiffs to prove that the signers of the R-71
petition were themselves subject to harassment. Of course, this is to
require an impossibility since the petitions have never been released to the
public, so that the public does not know who to target for harassment. However,
the court does find that the Plaintiffs have proven that "public advocacy
of traditional marriage as the exclusive definition of marriage, or the
expansion of rights for same sex partners, has engendered hostility in this
state, and risen to violence elsewhere, against some who have engaged in that
advocacy." We believe under the law that this is all that one has to
prove, since making public the signers of R-71 would disclose the identity of
people who advocate traditional marriage to the public for harassment. Jim
Bopp
In a message dated 10/17/2011 3:06:12 P.M. Eastern Daylight Time,
rhasen at law.uci.edu writes:
Breaking News: District Court Rejects Harassment Claims in Doe v.
Reed<http://electionlawblog.org/?p=24330>
Posted on October 17, 2011 12:05 pm<http://electionlawblog.org/?p=24330>
by Rick Hasen<http://electionlawblog.org/?author=3>
The state of Washington just won summary
judgment<http://electionlawblog.org/wp-content/uploads/doevreed-summary-judgment.pdf> on remand in the Doe
v. Reed case involving disclosure of the names of people signing a
referendum concerning Washington State's gay rights law.
>From the opinion:
Applied here, the Court finds that Doe has only supplied evidence that
hurts rather than helps its case. Doe has supplied minimal testimony from a
few witnesses who, in their respective deposition testimony, stated either
that police efforts to mitigate reported incidents was sufficient or
unnecessary. Doe has supplied no evidence that police were or are now unable or
unwilling to mitigate any claimed harassment or are now unable or unwilling to
control the same, should disclosure be made. This is a quite different
situation than the progeny of cases providing an as-applied exemption wherein
the government was actually involved in carrying out the harassment, which
was historic, pervasive, and documented. To that end, the evidence supplied
by Doe purporting to be the best set of experiences of threats,
harassment, or reprisals suffered or reasonably likely to be suffered by R-71 signers
cannot be characterized as "serious and widespread."
Here is another excerpt from the Court's conclusion:
Considering the foregoing, Doe's action based on Count II falls far short
of those an as-applied challenge has been successfully lodged to prevent
disclosure of information otherwise obtainable under the PRA. Thus, the
State's undoubtedly important interest in disclosure prevails under exacting
scrutiny.
While Plaintiffs have not shown serious and widespread threats,
harassment, or reprisals against the signers of R-71, or even that such activity
would be reasonably likely to occur upon the publication of their names and
contact information, they have developed substantial evidence that the public
advocacy of traditional marriage as the exclusive definition of marriage,
or the expansion of rights for same sex partners, has engendered hostility
in this state, and risen to violence elsewhere, against some who have
engaged in that advocacy. This should concern every citizen and deserves the full
attention of law enforcement when the line gets crossed and an advocate
becomes the victim of a crime or is subject to a genuine threat of violence.
The right of individuals to
speak openly and associate with others who share common views without
justified fear of harm is at the very foundation of preserving a free and open
society. The facts before the Court in this case, however, do not rise to
the level of demonstrating that a reasonable probability of threats,
harassment, or reprisals exists as to
the signers of R-71, now nearly two years after R-71 was submitted to the
voters in Washington State.
[http://www.addtoany.com/share_
save#url=http://electionlawblog.org/?p=24330&title=Breaking News: District Court Rejects Harassment Claims in Doe v.
Reed&description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectio
nlawblog.org%2F%3Fp%3D24330&title=Breaking%20News%3A%20District%20Court%20Re
jects%20Harassment%20Claims%20in%20Doe%20v.%20Reed&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>,
referendum<http://electionlawblog.org/?cat=56> | Comments Off
">From $25 to $10,000,000: A Guide to Political
Donations"<http://electionlawblog.org/?p=24328>
Posted on October 17, 2011 12:01 pm<http://electionlawblog.org/?p=24328>
by Rick Hasen<http://electionlawblog.org/?author=3>
NYT launches very interesting interactive campaign finance
guide<http://www.nytimes.com/interactive/2011/10/17/us/politics/a-guide-to-political-donati
ons.html?hp>.
[http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=24328&
title=âEURoeFrom $25 to $10,000,000: A Guide to Political
DonationsâEUR&description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlaw
blog.org%2F%3Fp%3D24328&title=%E2%80%9CFrom%20%2425%20to%20%2410%2C000%2C000
%3A%20A%20Guide%20to%20Political%20Donations%E2%80%9D&description=>
Posted in Uncategorized<http://electionlawblog.org/?cat=1> | Comments Off
"Deep Sea Burial forms first corporate 'super
PAC"<http://electionlawblog.org/?p=24325>
Posted on October 17, 2011 10:23 am<http://electionlawblog.org/?p=24325>
by Rick Hasen<http://electionlawblog.org/?author=3>
WaPo
reports<http://www.washingtonpost.com/politics/deep-sea-burial-forms-first-corporate-super-pac/2011/10/17/gIQABaRnrL_story.html>. My earlier
coverage is here.<http://electionlawblog.org/?p=24304>
[http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=24325&
title=âEURoeDeep Sea Burial forms first corporate âEUR~super
PACâEUR&description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblo
g.org%2F%3Fp%3D24325&title=%E2%80%9CDeep%20Sea%20Burial%20forms%20first%20co
rporate%20%E2%80%98super%20PAC%E2%80%9D&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10> | Comments
Off
"U.S. District Court Judge in Ohio Orders Secretary of State to Put
Libertarian Party on 2012 Ballot"<http://electionlawblog.org/?p=24322>
Posted on October 17, 2011 10:21 am<http://electionlawblog.org/?p=24322>
by Rick Hasen<http://electionlawblog.org/?author=3>
Libertarians win
one<http://www.ballot-access.org/2011/10/17/u-s-district-court-judge-in-ohio-orders-secretary-of-state-to-put-libertarian-party-on-201
2-ballot/>.
[http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=24322&
title=âEURoeU.S. District Court Judge in Ohio Orders Secretary of State to
Put Libertarian Party on 2012
BallotâEUR&description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D24322&title=%
E2%80%9CU.S.%20District%20Court%20Judge%20in%20Ohio%20Orders%20Secretary%20o
f%20State%20to%20Put%20Libertarian%20Party%20on%202012%20Ballot%E2%80%9D&des
cription=>
Posted in ballot access<http://electionlawblog.org/?cat=46> | Comments Off
"Appeal filed in NJ voting-machines
lawsuit"<http://electionlawblog.org/?p=24319>
Posted on October 17, 2011 10:19 am<http://electionlawblog.org/?p=24319>
by Rick Hasen<http://electionlawblog.org/?author=3>
Andrew Appel has posted this
item<https://freedom-to-tinker.com/blog/appel/appeal-filed-nj-voting-machines-lawsuit> at Freedom to Tinker.
[http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=24319&
title=âEURoeAppeal filed in NJ voting-machines
lawsuitâEUR&description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3
Fp%3D24319&title=%E2%80%9CAppeal%20filed%20in%20NJ%20voting-machines%20lawsu
it%E2%80%9D&description=>
Posted in voting technology<http://electionlawblog.org/?cat=40> | Comments
Off
Absentee Ballot Fraud Leads to Mayoral
Resignation<http://electionlawblog.org/?p=24316>
Posted on October 17, 2011 9:01 am<http://electionlawblog.org/?p=24316> by
Rick Hasen<http://electionlawblog.org/?author=3>
See
here<http://www.wsbtv.com/news/news/local/mayor-resigns-following-voter-fraud-investigation/nFG6R/> (via
RNLA<https://twitter.com/#%21/TheRepLawyer/status/125954902311714816>). Once again voter fraud a state voter id
law would not deter.
[http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=24316&
title=Absentee Ballot Fraud Leads to Mayoral
Resignation&description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%
3D24316&title=Absentee%20Ballot%20Fraud%20Leads%20to%20Mayoral%20Resignation
&description=>
Posted in absentee ballots<http://electionlawblog.org/?cat=53>, election
administration<http://electionlawblog.org/?cat=18> | Comments Off
--
Rick Hasen
Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org <http://electionlawblog.org/>
<http://electionlawblog.org/>
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