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

Mon Jul 16 08:44:10 PDT 2012

I have no dog in this fight, as I don’t know what evidence is or isn’t
there on this question, but to say that appellate review under the
substantial evidence rule is a meaningful check on erroneous trial court
factfinding is silly.  Apellate review of trial court questions of fact is
extremely deferential, and it is relatively easy for a trial judge to
insulate his or her findings if that is desired.

Again, I don’t know what evidence there was in this case, I’m just making a
point about appellate review serving as a guarantee of proper trial court
factfinding.

------
Jonathan H. Adler
Johan Verheij Memorial Professor of Law
Director, Center for Business Law & Regulation
Case Western Reserve University School of Law
11075 East Boulevard
Cleveland, OH 44106
ph) 216-368-2535
fax) 216-368-2086
cell) 202-255-3012
jha5 at case.edu
http://www.jhadler.net
SSRN: http://ssrn.com/author=183995

*From:* law-election-bounces at department-lists.uci.edu [mailto:
law-election-bounces at department-lists.uci.edu] *On Behalf Of *Rick Hasen
*Sent:* Monday, July 16, 2012 11:39 AM
*To:* Joe La Rue
*Cc:* JBoppjr at aol.com; law-election at uci.edu
*Subject:* Re: [EL] Check out F.D.A. Surveillance of Scientists Spread to
Outside Critic...

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

CONFIDENTIALITY NOTICE:  This e-mail message, including any attachments, is
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On Mon, Jul 16, 2012 at 8:31 AM, Rick Hasen <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>
[image:
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>
[image:
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 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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-- 
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

-- 

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

-- 

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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