[EL] Check out F.D.A. Surveillance of Scientists Spread to Outside Critic...
JBoppjr at aol.com
JBoppjr at aol.com
Mon Jul 16 07:51:39 PDT 2012
Harassment can discourage and chill First Amendment protected speech even
though it is not criminal. For instance, people were fired from their jobs
for contributing to Prop 8 and that was perfectly legal.
The government action that we are concerned with is the compelled
disclosure of the identity of those who engage in political speech. If the
disclosure can result in harassment and thereby chill political speech, then the
government compelled disclosure may violate the First Amendment. Jim Bopp
In a message dated 7/16/2012 10:44:47 A.M. Eastern Daylight Time,
adam at boninlaw.com writes:
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
The Law Office of Adam C. Bonin
1900 Market Street, 4th Floor
Philadelphia, PA 19103
(215) 864-8002 (w)
(215) 701-2321 (f)
(267) 242-5014 (c)
_adam at boninlaw.com_ (mailto:adam at boninlaw.com)
_http://www.boninlaw.com_ (http://www.boninlaw.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, 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_ (mailto: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_
(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/Direc
t%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
university of florida | email: _dasmith at ufl.edu_
(mailto:dasmith at ufl.edu)
gainesville, fl 32611-7325 | _www.clas.ufl.edu/users/dasmith/_
(http://www.clas.ufl.edu/users/dasmith/)
_http://twitter.com/#!/electionsmith_ (http://twitter.com/#!/electionsmith)
On 7/16/2012 9:34 AM, _JBoppjr at aol.com_ (mailto: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_ (mailto: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_ (mailto: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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