[EL] Check out F.D.A. Surveillance of Scientists Spread to Outside Critic...

Mon Jul 16 07:44:34 PDT 2012

If it’s not criminal, then isn’t it protected First Amendment activity?  What, exactly, is this middle zone of political speech which is not illegal but that the government nevertheless has a duty to … what, exactly?

Adam C. Bonin
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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, July 16, 2012 10:31 AM
To: dasmith at ufl.edu; law-election at department-lists.uci.edu; rhasen at law.uci.edu
Subject: Re: [EL] Check out F.D.A. Surveillance of Scientists Spread to Outside Critic...

    First, as to your questions, there were only a few persons publicly identified with R-71 and we documented that all were harassed.  Second, regarding harassment of R-71 petition signers, their identity was kept secret by our preliminary injunctions so, of course, none were harassed, because none were disclosed.  Third, they were publicly identified years later, when all of the heat went out of the issue and no campaign of harassment was actually launched against them by those that threatened ti.

    But the most important fact was that the announcement of the threat to map quest the petition signers was made early in the period of collecting the signatures, way before they would be submitted to the Sec of State.  The reason for the announcement was to intimidate people from even signing the petitions in the first place -- by threatening a repeat of the Prop 8 harassment campaign, now directed at signers of the R-71 petitions. So the whole point was not to actually harass them but to threaten to do it to discourage them from signing -- which worked to a certain degree.  

    Finally regarding police response to the harassment, first, much of it is not criminal and cognizable harassment does not have to be criminal, and second, the police did absolutely nothing about the incidents of harassment other than take a report.  Harassors do not leave their business cards and thus there is really nothing the police can do.  Jim Bopp

In a message dated 7/16/2012 10:16:02 A.M. Eastern Daylight Time, dasmith at ufl.edu writes:

Hi Jim

Again, where and when exactly did the harassment occur during the Washington state R-71 popular referendum signature gathering that led to Doe v. Reed?

As the lead author of the Direct Democracy Scholars amicus brief, that you may recall was mentioned twice during SCOTUS oral argument, I was unable much evidence at all of an individual being harassed for signing a petition due to the subsequent public disclosure of petitions.  And if there ever was a case of such harassment, there are--of course--criminal statutes that would apply.

If I'm not mistaken, on remand, the Federal District Court [http://electionlawblog.org/wp-content/uploads/doevreed-summary-judgment.pdf] in its summary judgment dismissing your as-applied challenge had this to say about the harassment due to public record requests of those signing R-71:

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.”

My Doe v. Reed amicus is available here <http://wei.secstate.wa.gov/osos/en/initiativesReferenda/Documents/Court-Federal_Court/27_Amicus_Briefs/Direct%20Democracy%20Scholars.pdf> , and and my recent comments, more broadly on disclosure, are here <http://electionsmith.wordpress.com/category/doe-v-reed/> . And I know you're familiar with my ELJ article <http://www.clas.ufl.edu/users/dasmith/Garrett&Smith.pdf>  with Beth Garrett: 

So, please correct the record for me about the incidents of untoward harassment that individuals signing a petition have incurred as a result of public disclosure laws. 

Best,

Dan

daniel a. smith, ph.d.
professor & uf research foundation professor (2010-2012)
coordinator, political science internship program
department of political science
003 anderson hall              |  phone: 352-273-2346
po box 117325                  |  fax: 352-392-8127
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On 7/16/2012 9:34 AM, JBoppjr at aol.com wrote:

Of course not, this involved scientific critics of the FDA.  The point is that government officials will go after critics however they find out about them and using the methods they have available.

Regarding campaign contribution, in Doe v. Reed and the Prop 8 case, we document over 250 incidents of harassment of supporters of Prop 8, many of which were only contributors who were map quested on the Internet. A campaign of harassment that occurred against them is unusual.  Public officials that retaliate against critics are usually very careful to make sure that no one knows they are doing it.  The FDA did not send out a press release on their actions against their scientific critics either.  Jim Bopp

In a message dated 7/15/2012 11:03:48 P.M. Eastern Daylight Time, rhasen at law.uci.edu writes:

I didn't see any evidence in this article that anyone was being harassed for making campaign contributions, and as we've discussed on this list ad nauseum (and as spelled out in more detail here <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1948313> ), my view of the evidence from two recent cases involving allegations of harassment of campaign contributors is that there is no systemic evidence that harassment of campaign contributors is a problem.  Rare instances of genuine threats of harassment may be dealt with through an "as applied" exemption to disclosure laws.

On 7/15/12 8:06 AM, Joe La Rue wrote:

It is interesting that Van Hollen is upset about THIS disclosure. Of course, he was number 14 on the list. I guess disclosure is only good when it's somebody else's speech that is being disclosed.

On Jul 15, 2012, at 6:28 AM, JBoppjr at aol.com wrote:

Click here: F.D.A. Surveillance of Scientists Spread to Outside Critics - NYTimes.com <http://www.nytimes.com/2012/07/15/us/fda-surveillance-of-scientists-spread-to-outside-critics.html?_r=2&pagewanted=all>  

Government going after critics, exactly the type of activity that can chill political speech and that makes disclosure a burden.  Jim Bopp

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