[EL] Check out F.D.A. Surveillance of Scientists Spread to Outside Critic...
Rick Hasen
rhasen at law.uci.edu
Mon Jul 16 08:39:27 PDT 2012
My experience in the trial courts is that almost all judges do an
excellent job when it comes to factfinding. Is that not your
experience? If you disagree with the judge's factual findings in the
case, you can appeal, and my sense is that appellate courts generally do
a very good job reviewing factual findings under a substantial evidence
rule.
When it comes to the value judgments Supreme Court Justices make in
constitutional cases, that is a different matter---they mask their value
judgments behind factual findings. And I've been just as critical of
how liberal Justices do it (see my criticism
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=241458> of Justice
Souter's opinion in Shrink Missouri on the quantum of evidence
sufficient to support contribution laws) as conservative Justices.
Do you have a particular complaint about the factual findings of the
judges in the Prop 8 and Doe v. Reed cases, other than the typical
complaints of a lawyer who has lost a case before a judge?
On 7/16/2012 8:33 AM, Joe La Rue wrote:
> Rick, you of all people should recognize that just because a court
> "finds" something, that doesn't make it so. I've read your criticism
> of various statements of, say, CJ Roberts, in which you question both
> his motives and whether he acted in a principled manner.
> Joe
> ___________________
> *Joseph E. La Rue*
> cell: 480.272.2715
> email: joseph.e.larue at gmail.com <mailto:joseph.e.larue at gmail.com>
>
>
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>
> On Mon, Jul 16, 2012 at 8:31 AM, Rick Hasen <rhasen at law.uci.edu
> <mailto:rhasen at law.uci.edu>> wrote:
>
> Enough already of the unsupported claims of massive harassment.
> These were tested in Court. Here's the relevant portion of the
> trial court's decision granting summary judgment against Jim's
> clients on this issue. I've put in bold some of the more
> relevant findings.
>
>
> ProtectMarriage.com v. Bowen
> 830 F.Supp.2d 914
> E.D.Cal.,2011.
> November 04, 2011 (Approx. 34 pages)
>
>
>
> Moreover, while Plaintiffs are quite correct that under /Buckley/
> <http://web2.westlaw.com/find/default.wl?mt=LawSchoolPractitioner&rs=WLW12.04&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2026501938&serialnum=1976142308&vr=2.0&fn=_top&sv=Split&tf=-1&pbc=154255A8&utid=1>
> evidence of harassment “from either Government officials or
> private parties” could suffice to establish the requisite proof of
> reprisals, the facts of subsequent cases evidence not only the
> existence of some governmental hostility, but quite pervasive
> governmental hostility at that. /Buckley,/ 424 U.S. at 74, 96
> S.Ct. 612
> <http://web2.westlaw.com/find/default.wl?mt=LawSchoolPractitioner&db=708&rs=WLW12.04&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2026501938&serialnum=1976142308&vr=2.0&fn=_top&sv=Split&tf=-1&pbc=154255A8&utid=1>
> (emphasis added); /see also //McArthur,/ 716 F.Supp. at 594
> <http://web2.westlaw.com/find/default.wl?mt=LawSchoolPractitioner&db=345&rs=WLW12.04&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2026501938&serialnum=1989115620&vr=2.0&fn=_top&sv=Split&tf=-1&referencepositiontype=S&pbc=154255A8&referenceposition=594&utid=1>
> (“[H]arassment, reprisals or threats from private persons are
> sufficient to allow [the] court to enforce the plaintiff's first
> amendment rights by cloaking the contributors and recipients'
> names in secrecy.”).
>
> Indeed, the /Brown/
> <http://web2.westlaw.com/find/default.wl?mt=LawSchoolPractitioner&rs=WLW12.04&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2026501938&serialnum=1982152768&vr=2.0&fn=_top&sv=Split&tf=-1&pbc=154255A8&utid=1>
> Court was confronted with countless acts of government harassment
> and retribution against members of the SWP, which are detailed
> above. Furthermore, in /Hall–Tyner,/
> <http://web2.westlaw.com/find/default.wl?mt=LawSchoolPractitioner&rs=WLW12.04&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2026501938&serialnum=1982123204&vr=2.0&fn=_top&sv=Split&tf=-1&pbc=154255A8&utid=1>
> the Second Circuit stated, “[t]he evidence relied on by the
> district judge included the extensive body of state and federal
> legislation subjecting Communist Party members to civil disability
> and criminal liability, reports and affidavits documenting the
> history of governmental surveillance and harassment of Communist
> Party members, as well as affidavits indicating the desire of
> contributors to the Committee to remain anonymous.” 678 F.2d at
> 419
> <http://web2.westlaw.com/find/default.wl?mt=LawSchoolPractitioner&db=350&rs=WLW12.04&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2026501938&serialnum=1982123204&vr=2.0&fn=_top&sv=Split&tf=-1&referencepositiontype=S&pbc=154255A8&referenceposition=419&utid=1>.
>
> *Plaintiffs do not, indeed cannot, allege that the movement to
> recognize marriage in California as existing only between a man
> and a woman is vulnerable to the same threats as were socialist
> and communist groups, or, for that matter, the NAACP. Proposition
> 8 supporters *932 promoted a concept entirely devoid of
> governmental hostility. Plaintiffs' belief in the traditional
> concept of marriage, to disagreement, have not historically
> invited animosity. The Court is at a loss to find any principled
> analogy between two such greatly diverging sets of circumstances.*
>
> *Finally, Plaintiffs' exemption argument appears to be premised,
> in large part, on the concept that individuals should be free from
> even legal consequences of their speech. That is simply not the
> nature of their right.*
>
> Just as contributors to Proposition 8 are free to speak in favor
> of the initiative, so are opponents free to express their
> disagreement through proper legal means.
>
> **17 *While the Court is cognizant of the deplorable nature of
> many of acts alleged by Plaintiffs, the Court also must reiterate
> that the legality or morality of any specific acts is not before
> it. Thus, as much as the Court strongly condemns the behavior of
> those who resort to violence, and/or other illegal behavior, the
> Court need not, indeed cannot, evaluate the proper legal
> consequences of those actions today.*
>
> By the same token, nothing in the Court's decision immunizes or
> excuses those who have engaged in illegal acts from the
> consequences of their conduct. Those responsible for threatening
> the lives of supporters of Proposition 8 are subject to criminal
> liability. See Troupis Decl., Exh. C (noting that the Fresno chief
> of police stated the department was “close to making an arrest” in
> the case of the death threats delivered to the mayor and a local
> pastor.) Those choosing to vandalize the property of individuals
> or the public are likewise liable. Those mailing white powder to
> organizations are subject to federal prosecution. In each case,
> there are appropriate legal channels through which to rectify and
> deter the reoccurrence of such reprehensible behavior.
>
> As much *as those channels are available today, it is unlikely
> that groups previously successful in seeking exemptions were privy
> to the same opportunities. Again, Plaintiffs have shown no
> societal or governmental hostility to their cause. Contrary to
> groups such as the SWP, Plaintiffs can seek adequate relief from
> law enforcement and the legal system. *Such was not the case for
> those thought to be supporting the SWP or communist groups, those
> subject to actual criminal liability based on their beliefs and
> their associations.
>
> /ProtectMarriage.com,/ 599 F.Supp.2d at 1217–1218
> <http://web2.westlaw.com/find/default.wl?mt=LawSchoolPractitioner&db=4637&rs=WLW12.04&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2026501938&serialnum=2018198951&vr=2.0&fn=_top&sv=Split&tf=-1&referencepositiontype=S&pbc=154255A8&referenceposition=1217&utid=1>.
>
> Despite Plaintiffs attempt now to put forth additional evidence of
> threats, harassment and reprisals, the Court's findings remain the
> same. More specifically, despite the additional declarations and
> exhibits that are now before the Court, Plaintiffs still run into
> problems of proportionality and magnitude.
>
> *First, while Plaintiffs characterize their evidence as voluminous
> and comprised of “virtually countless reports of threats,
> harassment, and reprisals,” Plaintiffs' Motion, 4:14–15, they have
> pointed to relatively few incidents allegedly suffered by persons
> located across the entire country who had somehow manifested their
> support for traditional marriage. * In addition, while the
> evidence before this Court indicates that at least 7 million
> voters showed up at the California polls alone to support the
> passage of Proposition 8, this number, though large, still
> deceptively underestimates the number of supporters for
> Plaintiffs' cause. Indeed, this figure does not capture all
> individuals supporting Proposition 8 on a national scale, nor does
> it capture those individuals who may have no connection to
> California's campaign, but *933 have supported the same cause in
> other regions. Plaintiffs' evidence of harassment, nonetheless
> extends much farther than California's borders and includes
> incidents that arose in other states and that were directed at the
> much broader social issue of gay marriage in general.
>
> **18 Accordingly, even assuming Plaintiffs could, under some set
> of circumstances, prove an entitlement to an exemption, they would
> need evidence of thousands of acts of reprisals, threats or
> harassment, spanning much more than the short period of time
> covering California's ballot-initiative process to prove
> contributors to such a massive group are entitled to anonymity of
> the type justified years ago for the individuals in /Brown/
> <http://web2.westlaw.com/find/default.wl?mt=LawSchoolPractitioner&rs=WLW12.04&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2026501938&serialnum=1982152768&vr=2.0&fn=_top&sv=Split&tf=-1&pbc=154255A8&utid=1>
> and /NAACP./
> <http://web2.westlaw.com/find/default.wl?mt=LawSchoolPractitioner&rs=WLW12.04&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2026501938&serialnum=1958121466&vr=2.0&fn=_top&sv=Split&tf=-1&pbc=154255A8&utid=1>
> The declarations of 58 individuals signed in the months just
> following the election, along with Plaintiffs' anecdotal evidence
> from the same time period as documented in Exhibits 3 and 4, is
> simply insufficient on the facts of this case to convince this
> Court an ordinary contributor to Proposition 8 would have faced
> any backlash worthy of quashing the names of all contributors.^FN9
> <http://web2.westlaw.com/result/documenttext.aspx?ss=CNT&mt=LawSchoolPractitioner&utid=1&n=1&cnt=DOC&rlt=CLID_FQRLT799262410167&scxt=WL&service=Find&rp=%2fFind%2fdefault.wl&vr=2.0&cxt=DC&rlti=1&sv=Split&fn=_top&cite=2011+WL+5507204&rs=WLW12.04#B00992026501938>/See,
> e.g., / /Doe v. Reed,/ 130 S.Ct. at 2829
> <http://web2.westlaw.com/find/default.wl?mt=LawSchoolPractitioner&db=708&rs=WLW12.04&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2026501938&serialnum=2022366335&vr=2.0&fn=_top&sv=Split&tf=-1&referencepositiontype=S&pbc=154255A8&referenceposition=2829&utid=1>
> (taking the position exemptions may be permitted “in the rare
> circumstance in which disclosure poses a reasonable probability of
> serious and widespread harassment”) (Sotomayor, J.,
> concurring-joined by Stevens and Ginsburg).
>
> FN9.
> <http://web2.westlaw.com/result/documenttext.aspx?ss=CNT&mt=LawSchoolPractitioner&utid=1&n=1&cnt=DOC&rlt=CLID_FQRLT799262410167&scxt=WL&service=Find&rp=%2fFind%2fdefault.wl&vr=2.0&cxt=DC&rlti=1&sv=Split&fn=_top&cite=2011+WL+5507204&rs=WLW12.04#F00992026501938>*Plaintiffs
> even acknowledge in their papers that only a minority of
> individuals on the other side of the campaign resorted to the
> complained of tactics that are cause for concern. Plaintiffs'
> Motion, 1:10–12 (“Some groups and individuals, /certainly a
> minority,/ have resorted to advancing their cause, not by
> debating the merits of the issue, but by discouraging
> participation in the democratic process through acts
> calculated to intimidate.”) (emphasis added).*
>
>
> [2]
> <http://web2.westlaw.com/result/documenttext.aspx?ss=CNT&mt=LawSchoolPractitioner&utid=1&n=1&cnt=DOC&rlt=CLID_FQRLT799262410167&scxt=WL&service=Find&rp=%2fFind%2fdefault.wl&vr=2.0&cxt=DC&rlti=1&sv=Split&fn=_top&cite=2011+WL+5507204&rs=WLW12.04#F22026501938>
> Headnote Citing References
> <http://web2.westlaw.com/KCNotes/default.wl?mt=LawSchoolPractitioner&locatestring=HD%28002%29%2cCL%28H%2cO%29%2cDC%28A%2cL%2cO%2cD%2cG%29%2cDT%28E%2cD%2cC%2cM%29&utid=1&n=1&rlt=CLID_FQRLT799262410167&service=Find&pbc=154255A8&rp=%2fKCNotes%2fdefault.wl&vr=2.0&rlti=1&sv=Split&fn=_top&serialnum=2026501938&rs=WLW12.04>*Moreover,
> as the Court previously observed, notably absent from the record
> here are any instances in which Plaintiffs have suffered any sort
> of governmental backlash.* While, based on the language derived
> from /Buckley,/
> <http://web2.westlaw.com/find/default.wl?mt=LawSchoolPractitioner&rs=WLW12.04&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2026501938&serialnum=1976142308&vr=2.0&fn=_top&sv=Split&tf=-1&pbc=154255A8&utid=1>
> governmental harassment is not necessarily a required showing, it
> is a factor for this Court to consider. Indeed, some governmental
> animosity has been present in all other cases in which an
> exemption has been permitted. Perhaps recognizing this, Plaintiffs
> argue “[t]here can be no question that in many areas in
> California, and around the country, views against same-sex
> marriage ... are extremely unpopular” and “[e]ven our courts of
> law have characterized those who fight against such laws as
> advocates of hate and bigotry who act ‘without reason.’ ”
> Plaintiffs' Motion, 12:15–18. Nonetheless, any attempt by
> Plaintiffs to show governmental animosity here is half-hearted at
> best. As described above, parties entitled to an as-applied
> exemption (namely the NAACP and the SWP) in the past had suffered
> from systematic governmental discrimination, persecution and
> abuse. Those plaintiffs were not only directly victimized by the
> government, they consequently lacked adequate recourse to pursue
> means short of non-disclosure to protect against private violence.
> In this case, Plaintiffs cannot assert that there is some sort of
> governmental hostility to their cause, nor can they in good
> conscience argue that law enforcement was or would be
> non-responsive to any illegal acts directed at Plaintiffs
> contributors.^FN10
> <http://web2.westlaw.com/result/documenttext.aspx?ss=CNT&mt=LawSchoolPractitioner&utid=1&n=1&cnt=DOC&rlt=CLID_FQRLT799262410167&scxt=WL&service=Find&rp=%2fFind%2fdefault.wl&vr=2.0&cxt=DC&rlti=1&sv=Split&fn=_top&cite=2011+WL+5507204&rs=WLW12.04#B010102026501938>
>
> FN1*0.*
> <http://web2.westlaw.com/result/documenttext.aspx?ss=CNT&mt=LawSchoolPractitioner&utid=1&n=1&cnt=DOC&rlt=CLID_FQRLT799262410167&scxt=WL&service=Find&rp=%2fFind%2fdefault.wl&vr=2.0&cxt=DC&rlti=1&sv=Split&fn=_top&cite=2011+WL+5507204&rs=WLW12.04#F010102026501938>*Plaintiffs
> do argue that their contributors were victimized despite
> existing laws criminalizing the underlying conduct.
> Essentially, Plaintiffs argue those laws did nothing to deter
> criminal behavior. However, Plaintiffs have not alleged that
> any law enforcement response was insufficient, that law
> enforcement has somehow turned a blind eye to any criminal
> conduct, or that criminal sanctions will not be imposed if
> appropriate. That is a critical distinction between the
> instant case and past cases such as /Brown/
> <http://web2.westlaw.com/find/default.wl?mt=LawSchoolPractitioner&rs=WLW12.04&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2026501938&serialnum=1982152768&vr=2.0&fn=_top&sv=Split&tf=-1&pbc=154255A8&utid=1>
> and /NAACP./*
>
>
> *934 To the contrary, Plaintiffs' own evidence indicates law
> enforcement was not only responsive, but diligent in undertaking
> investigations into some of the more heinous acts alleged here.
> This factor is critical in light of the comments made by several
> concurring Justices in /Doe v. Reed,/ indicating the ability of
> law enforcement to deal with threats, harassment and reprisals
> would weigh heavily against a need for an exemption. /See, e.g.,/
> /Doe,/ 130 S.Ct. at 2829
> <http://web2.westlaw.com/find/default.wl?mt=LawSchoolPractitioner&db=708&rs=WLW12.04&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2026501938&serialnum=2022366335&vr=2.0&fn=_top&sv=Split&tf=-1&referencepositiontype=S&pbc=154255A8&referenceposition=2829&utid=1>
> (exemption may be warranted “in the rare circumstance in which
> disclosure poses a reasonable probability of serious and
> widespread harassment that the State is unwilling or unable to
> control”) (Sotomayor, J., concurring, joined by Stevens and
> Ginsburg); /id./ at 2831
> <http://web2.westlaw.com/find/default.wl?mt=LawSchoolPractitioner&rs=WLW12.04&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2026501938&serialnum=2022366335&vr=2.0&fn=_top&sv=Split&tf=-1&pbc=154255A8&utid=1>
> (“From time to time throughout history, persecuted groups have
> been able to criticize oppressive practices and laws either
> anonymously or not at all ... In my view, this is unlikely to
> occur in cases involving the PRA. Any burden on speech that
> petitioners posit is speculative as well as indirect. For an
> as-applied challenge to a law such as the PRA to succeed, there
> would have to be a significant threat of harassment directed at
> those who sign the petition that cannot be mitigated by law
> enforcement measures.”) (Stevens and Breyer, JJ., concurring);
> /id./ at 2837
> <http://web2.westlaw.com/find/default.wl?mt=LawSchoolPractitioner&rs=WLW12.04&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2026501938&serialnum=2022366335&vr=2.0&fn=_top&sv=Split&tf=-1&pbc=154255A8&utid=1>
> (“There are laws against threats and intimidation; and harsh
> criticism, short of unlawful action, is a price our people have
> traditionally been willing to pay for self-governance.”) (Scalia,
> J., concurring).
>
> **19 I*n addition, the vast majority of the incidents cited by
> Plaintiffs are arguably, as characterized by Defendants, typical
> of any controversial campaign. For example, picketing, protesting,
> boycotting, distributing flyers, destroying yard signs and voicing
> dissent do not necessarily rise to the level of “harassment” or
> “reprisals,” especially in comparison to acts directed at groups
> in the past. Moreover, a good portion of these actions are
> themselves forms of speech protected by the United States
> Constitution.* Indeed this Court previously held that:
>
> [T]he Court simply cannot ignore the fact that numerous of the
> acts about which Plaintiffs complain are mechanisms relied upon,
> both historically and lawfully, to voice dissent. The decision and
> ability to patronize a particular establishment or business is an
> inherent right of the American people, and the public has
> historically remained free to choose where to, or not to, allocate
> its economic resources. As such, individuals have repeatedly
> resorted to boycotts as a form of civil protest intended to convey
> a powerful message without resort to non-violent means. The
> Supreme Court has acknowledged these rights on many an occasion:
>
> In /Thornhill v. Alabama,/ 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed.
> 1093 (1940)
> <http://web2.westlaw.com/find/default.wl?mt=LawSchoolPractitioner&db=708&rs=WLW12.04&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2026501938&serialnum=1940125855&vr=2.0&fn=_top&sv=Split&tf=-1&pbc=154255A8&utid=1>,
> the Court held that peaceful picketing was entitled to
> constitutional protection, even though, in that case, the purpose
> of the picketing “was concededly to advise customers and
> prospective customers of the relationship existing between the
> employer and its employees and thereby to induce such customers
> not to patronize the employer.” /Id./ at 99, 60 S.Ct. 736.
> <http://web2.westlaw.com/find/default.wl?mt=LawSchoolPractitioner&db=708&rs=WLW12.04&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2026501938&serialnum=1940125855&vr=2.0&fn=_top&sv=Split&tf=-1&pbc=154255A8&utid=1>
> /Cf. //Chauffeurs v. Newell,/ 356 U.S. 341, 78 S.Ct. 779, 2
> L.Ed.2d 809 [ (1958) ]
> <http://web2.westlaw.com/find/default.wl?mt=LawSchoolPractitioner&db=708&rs=WLW12.04&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2026501938&serialnum=1958207756&vr=2.0&fn=_top&sv=Split&tf=-1&pbc=154255A8&utid=1>.
> In /Edwards v. South Carolina,/ 372 U.S. 229, 83 S.Ct. 680, 9
> L.Ed.2d 697 [ (1963) ],
> <http://web2.westlaw.com/find/default.wl?mt=LawSchoolPractitioner&db=708&rs=WLW12.04&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2026501938&serialnum=1963101511&vr=2.0&fn=_top&sv=Split&tf=-1&pbc=154255A8&utid=1>
> we held that a peaceful march and demonstration was protected by
> the rights of free speech, free assembly, and freedom to petition
> for a redress of grievances.
>
> /NAACP v. Claiborne Hardware Co.,/ 458 U.S. 886, 909, 102 S.Ct.
> 3409, 73 L.Ed.2d 1215 (1982)
> <http://web2.westlaw.com/find/default.wl?mt=LawSchoolPractitioner&db=708&rs=WLW12.04&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2026501938&serialnum=1982130119&vr=2.0&fn=_top&sv=Split&tf=-1&pbc=154255A8&utid=1>.
> Notably, “[s]peech does not lose its protected character ...
> simply because it may embarrass others or *935 coerce them into
> action.” /Id./ at 910, 102 S.Ct. 3409.
> <http://web2.westlaw.com/find/default.wl?mt=LawSchoolPractitioner&db=708&rs=WLW12.04&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2026501938&serialnum=1982130119&vr=2.0&fn=_top&sv=Split&tf=-1&pbc=154255A8&utid=1>
>
> /ProtectMarriage.com,/ 599 F.Supp.2d at 1218
> <http://web2.westlaw.com/find/default.wl?mt=LawSchoolPractitioner&db=4637&rs=WLW12.04&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2026501938&serialnum=2018198951&vr=2.0&fn=_top&sv=Split&tf=-1&referencepositiontype=S&pbc=154255A8&referenceposition=1218&utid=1>.
>
> *As to Plaintiffs' allegations of “economic reprisals” in the form
> of voluntary or forced resignations, as opposed to cases in which
> a relatively high percentage of small groups seeking an exemption
> were actually fired from their places of employment, Plaintiffs
> here have documented no terminations. /See, e.g.,/ SWP. Rather,
> Plaintiffs point only to instances of several individuals who
> allegedly resigned amidst controversy over their contributions to
> or support of Proposition 8, but even those individuals had their
> own supporters and nonetheless made the affirmative and individual
> decision to resign.*
>
> More troubling here are the few instances of violence or criminal
> activity that do not fall within the realm of protected speech.
> The Court does not take lightly the use of the mail to terrorize
> people with counterfeit biological agents or to threaten the lives
> of individuals taking a stand for their particular beliefs, nor
> does the Court condone the use of force or the escalation of
> peaceful protests to violence to make one's position known. ^FN11
> <http://web2.westlaw.com/result/documenttext.aspx?ss=CNT&mt=LawSchoolPractitioner&utid=1&n=1&cnt=DOC&rlt=CLID_FQRLT799262410167&scxt=WL&service=Find&rp=%2fFind%2fdefault.wl&vr=2.0&cxt=DC&rlti=1&sv=Split&fn=_top&cite=2011+WL+5507204&rs=WLW12.04#B011112026501938>*However,
> Plaintiffs have produced insufficient evidence that the more
> incendiary events on which they rely were connected to Proposition
> 8 or to gay marriage at all.* Rather, a number of these incidents
> were directed at the Mormon church, which, though a backer of
> California's proposition, may also have been a target for any of a
> number of other reasons. In addition, as stated above, law
> enforcement appears to have responded swiftly and adequately in
> each of the instances Plaintiffs allege, rendering this case
> distinguishable from all cases in the past where exemptions have
> been granted. And, perhaps more importantly, the Supreme Court has
> never indicated that even a few acts of violence, when directed at
> a target as massive as the groups supporting Plaintiffs, would
> suffice to shield those groups from the scrutinizing light of the
> political process.
>
> FN11.
> <http://web2.westlaw.com/result/documenttext.aspx?ss=CNT&mt=LawSchoolPractitioner&utid=1&n=1&cnt=DOC&rlt=CLID_FQRLT799262410167&scxt=WL&service=Find&rp=%2fFind%2fdefault.wl&vr=2.0&cxt=DC&rlti=1&sv=Split&fn=_top&cite=2011+WL+5507204&rs=WLW12.04#F011112026501938>
> To the contrary, those resorting to these sorts of tactics do
> more to undermine their cause than to further any civilized
> and productive discourse.
>
>
> **20 [3]
> <http://web2.westlaw.com/result/documenttext.aspx?ss=CNT&mt=LawSchoolPractitioner&utid=1&n=1&cnt=DOC&rlt=CLID_FQRLT799262410167&scxt=WL&service=Find&rp=%2fFind%2fdefault.wl&vr=2.0&cxt=DC&rlti=1&sv=Split&fn=_top&cite=2011+WL+5507204&rs=WLW12.04#F32026501938>
> Headnote Citing References
> <http://web2.westlaw.com/KCNotes/default.wl?mt=LawSchoolPractitioner&locatestring=HD%28003%29%2cCL%28H%2cO%29%2cDC%28A%2cL%2cO%2cD%2cG%29%2cDT%28E%2cD%2cC%2cM%29&utid=1&n=1&rlt=CLID_FQRLT799262410167&service=Find&pbc=154255A8&rp=%2fKCNotes%2fdefault.wl&vr=2.0&rlti=1&sv=Split&fn=_top&serialnum=2026501938&rs=WLW12.04>This
> Court also observes that, even assuming there is no “strict”
> requirement that Plaintiffs prove a chilling effect on anticipated
> speech, any such effect is notably absent here. Plaintiffs appear
> to have had no problem collecting contributions and those
> contributions continued to increase even during the most heated
> portions of the Proposition 8 campaign. Cassady Decl., ¶¶ 24–25. A
> few John Doe declarants mentioned they may be wary of donating in
> the future, but those relatively few individual statements are
> unpersuasive to the Court given Plaintiffs' enormous multi-state
> backing. Plaintiffs have therefore simply not shown any real
> chill, nor have they shown, as feared by /Buckley,/
> <http://web2.westlaw.com/find/default.wl?mt=LawSchoolPractitioner&rs=WLW12.04&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2026501938&serialnum=1976142308&vr=2.0&fn=_top&sv=Split&tf=-1&pbc=154255A8&utid=1>
> that Plaintiffs' movement was at all susceptible to a fall-off in
> contributions or that, absent an exemption, the movement might not
> survive. /Buckley,/ 424 U.S. at 71, 96 S.Ct. 612
> <http://web2.westlaw.com/find/default.wl?mt=LawSchoolPractitioner&db=708&rs=WLW12.04&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2026501938&serialnum=1976142308&vr=2.0&fn=_top&sv=Split&tf=-1&pbc=154255A8&utid=1>.
>
> Finally, this case is unique because Plaintiffs' contributors'
> names were actually disclosed years ago and yet Plaintiffs have
> produced almost no evidence of any ramifications suffered in the
> almost three years post-disclosure. While the evidence contained
> in Plaintiffs' Exhibits 3 and 4 contain a few instances of
> vandalism that have occurred more recently than during the height
> of the Proposition 8 campaign and its aftermath, none of those
> articles draw any real connection between the incidents alleged
> and the victims' support of traditional marriage. /See, e.g.,/
> Plaintiffs' Exhs. 4–89, 4–90, 4–91, 4–93. Even Plaintiffs'*936
> counsel at oral argument in 2011 admitted he was only aware of one
> instance of harassment that had occurred post-election.
> Accordingly, from a practical perspective, it makes no sense to
> buy in to the argument that disclosure /may/ result in
> repercussions when there is simply no real evidence in the record
> that such repercussions actually /did/ occur in the past three
> years. Plaintiffs' evidence is, quite simply, stale. /See //Doe v.
> Reed,/ 823 F.Supp.2d 1195, 1205 n. 3, 2011 WL 4943952 at *10 n. 3
> (W.D.Wash.2011)
> <http://web2.westlaw.com/find/default.wl?mt=LawSchoolPractitioner&db=0000999&rs=WLW12.04&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2026501938&serialnum=2026358710&vr=2.0&fn=_top&sv=Split&tf=-1&pbc=154255A8&utid=1>.
>
> Accordingly, while Plaintiffs can point to a relatively few
> unsavory acts committed by extremists or criminals, these acts are
> so small in number, and in some instances their connection to
> Plaintiffs' supporters so attenuated, that they do not show a
> reasonable probability Plaintiffs' contributors will suffer the
> same fate. Given the grand scale of Plaintiffs' campaign and the
> massive (and national) support they garnered for their cause,
> Plaintiffs' limited evidence is simply insufficient to support a
> finding that disclosure of contributors' names will lead to
> threats, harassment or reprisals.^FN12
> <http://web2.westlaw.com/result/documenttext.aspx?ss=CNT&mt=LawSchoolPractitioner&utid=1&n=1&cnt=DOC&rlt=CLID_FQRLT799262410167&scxt=WL&service=Find&rp=%2fFind%2fdefault.wl&vr=2.0&cxt=DC&rlti=1&sv=Split&fn=_top&cite=2011+WL+5507204&rs=WLW12.04#B012122026501938>Plaintiffs'
> Motion for Summary Judgment as to this claim is DENIED and
> Defendants' Motion for Summary Judgment is GRANTED.
>
> FN12.
> <http://web2.westlaw.com/result/documenttext.aspx?ss=CNT&mt=LawSchoolPractitioner&utid=1&n=1&cnt=DOC&rlt=CLID_FQRLT799262410167&scxt=WL&service=Find&rp=%2fFind%2fdefault.wl&vr=2.0&cxt=DC&rlti=1&sv=Split&fn=_top&cite=2011+WL+5507204&rs=WLW12.04#F012122026501938>
> It bears mention that if the Court were to find an exemption
> warranted here, it is likely a similar exemption would prove
> warranted in any election concerning a controversial ballot
> measure. As a result, those issues in which the public shows the
> greatest interest would be subject to the least transparency.
>
> On 7/16/2012 6:34 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
>>>> _______________________________________________
>>>> Law-election mailing list
>>>> Law-election at department-lists.uci.edu
>>>> <mailto:Law-election at department-lists.uci.edu>
>>>> http://department-lists.uci.edu/mailman/listinfo/law-election
>>
>> --
>> Rick Hasen
>> Chancellor's Professor of Law and Political Science
>> UC Irvine School of Law
>> 401 E. Peltason Dr., Suite 1000
>> Irvine, CA 92697-8000
>> 949.824.3072 <tel:949.824.3072> - office
>> 949.824.0495 <tel: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/>
>> Pre-order /The Voting Wars/: http://amzn.to/y22ZTv
>>
>>
>
> -- Rick Hasen Chancellor's Professor of Law and Political Science
> UC Irvine School of Law 401 E. Peltason Dr., Suite 1000 Irvine, CA
> 92697-8000 949.824.3072 <tel:949.824.3072> - office 949.824.0495
> <tel: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 Pre-order The Voting Wars:
> http://amzn.to/y22ZTv
> www.thevotingwars.com <http://www.thevotingwars.com>
>
>
>
>
--
Rick Hasen
Chancellor's 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
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org
Pre-order The Voting Wars: http://amzn.to/y22ZTv
www.thevotingwars.com
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