[EL] Check out F.D.A. Surveillance of Scientists Spread to Outside Critic...
Rick Hasen
rhasen at law.uci.edu
Mon Jul 16 09:11:07 PDT 2012
I absolutely agree.
But the two cases---Prop. 8 and Doe v. Reed---provide the s/trongest/
cases we've seen in recent years of claims of harassment---and they were
tested in court with considerable resources marshaled on each side.
So they are important pieces of data.
Rick
On 7/16/2012 8:48 AM, Allen Dickerson wrote:
>
> I presume most of us have a high opinion of federal judges. But I
> think people are talking past each other.
>
> A judge made particular factual findings in a particular case. Well
> and good. That doesn't prove anything universal, or we wouldn't have a
> relevance requirement in the Rules of Evidence.
>
> The quantum of evidence required to obtain a /Socialist-Workers/-style
> exception, and the quantum required to make a policy argument, are
> different. I took Jim's point to be broadly about the danger of chill
> emanating from disclosure of particular political activity. The fact
> this record didn't convince a judge doesn't mean that it didn't, or
> shouldn't, convince legislators. Or, for that matter, academics and
> practitioners.
>
> I haven't examined the record in sufficient detail to know how this
> comes out. But you can't foreclose the broader policy discussion based
> solely on this ruling.//
>
> *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 <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
>
> _______________________________________________
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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 <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 <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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