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

[Joe La Rue]

Oh! That's right, Jim! I had forgotten the Doe-standard. The Judge required you to show evidence that people whose names had not been revealed suffered harassment! But , of course, they hadn't, because nobody knew who they were because their names had not been revealed. It was an impossible, and I would suggest, irrational, standard. And it ignored the evidence of harassment of those whose names HAD been revealed, which was the point of the case.



On Jul 17, 2012, at 5:37 AM, JBoppjr at aol.com wrote:

> The point we made is that they discounted the evidence of harassment by  applying the wrong legal standards.  First, in Doe v Reed by saying that only criminal harassment which the police ignores and by demanding evidence of harassment of signers of R-71 that were not public.  Second, in Prop 8 the court also used the criminal harassment standard.  We proved over 250 specific incidents of harassment of pro-marriage supporters and the courts errored in disregarding much of it by erroneous and restrictive legal standards.  Jim Bopp
>  
> In a message dated 7/16/2012 12:11:09 P.M. Eastern Daylight Time, rhasen at law.uci.edu writes:
> 
> 
> I absolutely agree.
> But the two cases---Prop. 8 and Doe v. Reed---provide the strongest 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 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 for the sole use of the intended recipient(s) and may contain confidential and privileged information or otherwise be protected by law. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message.
>> 
>> 
>> 
>> 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 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 (emphasis added); see also McArthur, 716 F.Supp. at 594 (“[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 Court was confronted with countless acts of government harassment and retribution against members of the SWP, which are detailed above. Furthermore, in Hall–Tyner, 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.
>>  
>> 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.
>> 
>> 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 and NAACP. 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 See, e.g., Doe v. Reed, 130 S.Ct. at 2829 (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. 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] <ELChecko>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, 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
>>  
>> FN10. 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 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 (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 (“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 (“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 In 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), 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. Cf. Chauffeurs v. Newell, 356 U.S. 341, 78 S.Ct. 779, 2 L.Ed.2d 809 [ (1958) ]. In Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 [ (1963) ], 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). 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.
>> 
>> ProtectMarriage.com, 599 F.Supp.2d at 1218.
>> 
>> 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 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. 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] <ELChecko>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, 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.
>>  
>> 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).
>>  
>> 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 Plaintiffs' Motion for Summary Judgment as to this claim is DENIED and Defendants' Motion for Summary Judgment is GRANTED.
>> 
>> FN12. 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), 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
>>  
>> 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
>> 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 - 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
>>  
>> 
> 
> -- 
> 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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