[EL] Check out F.D.A. Surveillance of Scientists Spread to Outside Critic...
JBoppjr at aol.com
JBoppjr at aol.com
Tue Jul 17 08:35:36 PDT 2012
There was no question raised in either case that all the over 250 incidents
cited by the Plaintiffs through affidavit and press reports occurred. The
question was were they legally relevant, etc. in order to obtain an
exemption. For instance, in Doe v. Reed the court only considered as legally
relevant the incidents of harassment against signers of R-71, but of course
there weren't any since the petitions were still not public. Jim Bopp
In a message dated 7/17/2012 11:17:50 A.M. Eastern Daylight Time,
rhasen at law.uci.edu writes:
The question is whether we are going to go with (unsupported) anecdotes or
questions tested in a fair adversarial proceeding in making public policy
recommendations.
On 7/17/2012 8:15 AM, Smith, Brad wrote:
I think we need to stop saying it is "the best evidence we have." It is,
at most, the best evidence presented to a court (I'm not sure it's even
that, but OK). We know of numerous persons who lost jobs in California after
Prop 8, we know of people targeted by terrorist groups, and a fair bit more.
Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault
Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
614.236.6317
_http://law.capital.edu/faculty/bios/bsmith.aspx_
(http://law.capital.edu/faculty/bios/bsmith.aspx)
____________________________________
From: _law-election-bounces at department-lists.uci.edu_
(mailto:law-election-bounces at department-lists.uci.edu)
[_law-election-bounces at department-lists.uci.edu_ (mailto:law-election-bounces at department-lists.uci.edu) ] on behalf
of Rick Hasen [_rhasen at law.uci.edu_ (mailto:rhasen at law.uci.edu) ]
Sent: Tuesday, July 17, 2012 10:54 AM
To: Joe La Rue
Cc: _JBoppjr at aol.com_ (mailto:JBoppjr at aol.com) ; _law-election at uci.edu_
(mailto:law-election at uci.edu)
Subject: Re: [EL] Check out F.D.A. Surveillance of Scientists Spread to
Outside Critic...
The catalog of the claims of "harassment" (most of which don't constitute
legal harassment) are all contained in the court opinions.
Once again, it is the best evidence we have and I think readers interested
in this issue should read the opinions for themselves and then decide.
On 7/17/2012 6:18 AM, Joe La Rue wrote:
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_ (mailto: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_ (mailto: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)
[_mailto: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_ (mailto:JBoppjr at aol.com) ; _law-election at uci.edu_
(mailto: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)
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_
(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_ (http://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&r
p=/find/default.wl&findtype=Y&ordoc=2026501938&serialnum=1976142308&vr=2.0&f
n=_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=/find/default.wl&findtype=Y&ordoc=2026501938&serialnum=197614230
8&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=/find/default.wl&find
type=Y&ordoc=2026501938&serialnum=1989115620&vr=2.0&fn=_top&sv=Split&tf=-1&r
eferencepositiontype=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=/find/default.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=/find/default.wl&findtype=Y&ordoc=2026501938&serial
num=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=/find/default.wl&findtype=Y&ordoc=2026501938&serialnum=198212320
4&vr=2.0&fn=_top&sv=Split&tf=-1&referencepositiontype=S&pbc=154255A8&referen
ceposition=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=/find/
default.wl&findtype=Y&ordoc=2026501938&serialnum=2018198951&vr=2.0&fn=_top&s
v=Split&tf=-1&referencepositiontype=S&pbc=154255A8&referenceposition=1217&ut
id=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=/f
ind/default.wl&findtype=Y&ordoc=2026501938&serialnum=1982152768&vr=2.0&fn=_t
op&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=/find/defaul
t.wl&findtype=Y&ordoc=2026501938&serialnum=1958121466&vr=2.0&fn=_top&sv=Spli
t&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=/Find/default.wl&vr=2.0&cxt=DC&rlt
i=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=/find/default.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=F
ind&rp=/Find/default.wl&vr=2.0&cxt=DC&rlti=1&sv=Split&fn=_top&cite=2011+WL+5
507204&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=Fi
nd&rp=/Find/default.wl&vr=2.0&cxt=DC&rlti=1&sv=Split&fn=_top&cite=2011+WL+55
07204&rs=WLW12.04#F22026501938) _<ELChecko>_
(http://web2.westlaw.com/KCNotes/default.wl?mt=LawSchoolPractitioner&locatestring=HD(002),CL(H,O),DC(A,L,O
,D,G),DT(E,D,C,M)&utid=1&n=1&rlt=CLID_FQRLT799262410167&service=Find&pbc=154
255A8&rp=/KCNotes/default.wl&vr=2.0&rlti=1&sv=Split&fn=_top&serialnum=202650
1938&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=/find/default.wl&findtype=Y&ordoc=2026501938&serialn
um=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=/Find/default.wl&vr=2.0&cxt=DC&rl
ti=1&sv=Split&fn=_top&cite=2011+WL+5507204&rs=WLW12.04#B010102026501938)
_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=/Find/default.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=/find/default.wl&findtype=Y&ordo
c=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=/find/default.wl&findtype=Y&ordoc=20
26501938&serialnum=2022366335&vr=2.0&fn=_top&sv=Split&tf=-1&referencepositio
ntype=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=/find/default.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=/find/default.wl&fi
ndtype=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 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)_
(http://web2.westlaw.com/find/default.wl?mt=LawSchoolPractitioner&db=708&rs=
WLW12.04&tc=-1&rp=/find/default.wl&findtype=Y&ordoc=2026501938&serialnum=194
0125855&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=/find/
default.wl&findtype=Y&ordoc=2026501938&serialnum=1940125855&vr=2.0&fn=_top&s
v=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=/find/default.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=/find/default.wl&fi
ndtype=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=/find/default.wl&findtype=Y&ordoc=20265
01938&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=/find/default.wl&findtype=Y&ordoc=20265
01938&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=/find/defau
lt.wl&findtype=Y&ordoc=2026501938&serialnum=2018198951&vr=2.0&fn=_top&sv=Spl
it&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=Fin
d&rp=/Find/default.wl&vr=2.0&cxt=DC&rlti=1&sv=Split&fn=_top&cite=2011+WL+550
7204&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=/Find/default.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&servi
ce=Find&rp=/Find/default.wl&vr=2.0&cxt=DC&rlti=1&sv=Split&fn=_top
&cite=2011+WL+5507204&rs=WLW12.04#F32026501938) _<ELChecko>_
(http://web2.westlaw.com/KCNotes/default.wl?mt=LawSchoolPractitioner&locatestring=HD(003),CL(H,O),DC(
A,L,O,D,G),DT(E,D,C,M)&utid=1&n=1&rlt=CLID_FQRLT799262410167&service=Find&pb
c=154255A8&rp=/KCNotes/default.wl&vr=2.0&rlti=1&sv=Split&fn=_top&serialnum=2
026501938&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=/find/default.wl&fi
ndtype=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=/
find/default.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=/find/default.wl&findtype=
Y&ordoc=2026501938&serialnum=2026358710&vr=2.0&fn=_top&sv=Split&tf=-1&pbc=15
4255A8&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&s
ervice=Find&rp=/Find/default.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=/Find/default.wl&vr=2.0&cxt=DC&rlti=1&sv=Split&fn=_top&cite=2011+WL+
5507204&rs=WLW12.04#F012122026501938) It bears mention that if the Court
were to find an exemption warranted here, it is likely a similar exemption
would prove warranted in any election concerning a controversial ballot
measure. As a result, those issues in which the public shows the greatest
interest would be subject to the least transparency.
On 7/16/2012 6:34 AM, _JBoppjr at aol.com_ (mailto:JBoppjr at aol.com) wrote:
Of course not, this involved scientific critics of the FDA. The point is
that government officials will go after critics however they find out
about them and using the methods they have available.
Regarding campaign contribution, in Doe v. Reed and the Prop 8 case, we
document over 250 incidents of harassment of supporters of Prop 8, many of
which were only contributors who were map quested on the Internet. A
campaign of harassment that occurred against them is unusual. Public officials
that retaliate against critics are usually very careful to make sure that no
one knows they are doing it. The FDA did not send out a press release on
their actions against their scientific critics either. Jim Bopp
In a message dated 7/15/2012 11:03:48 P.M. Eastern Daylight Time,
_rhasen at law.uci.edu_ (mailto:rhasen at law.uci.edu) writes:
I didn't see any evidence in this article that anyone was being harassed
for making campaign contributions, and as we've discussed on this list ad
nauseum (and as spelled out in more detail _here_
(http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1948313) ), my view of the evidence from two
recent cases involving allegations of harassment of campaign contributors is
that there is no systemic evidence that harassment of campaign contributors
is a problem. Rare instances of genuine threats of harassment may be dealt
with through an "as applied" exemption to disclosure laws.
On 7/15/12 8:06 AM, Joe La Rue wrote:
It is interesting that Van Hollen is upset about THIS disclosure. Of
course, he was number 14 on the list. I guess disclosure is only good when it's
somebody else's speech that is being disclosed.
On Jul 15, 2012, at 6:28 AM, _JBoppjr at aol.com_ (mailto:JBoppjr at aol.com)
wrote:
_Click here: F.D.A. Surveillance of Scientists Spread to Outside Critics -
NYTimes.com_
(http://www.nytimes.com/2012/07/15/us/fda-surveillance-of-scientists-spread-to-outside-critics.html?_r=2&pagewanted=all)
Government going after critics, exactly the type of activity that can
chill political speech and that makes disclosure a burden. Jim Bopp
_______________________________________________
Law-election mailing list
_Law-election at department-lists.uci.edu_
(mailto:Law-election at department-lists.uci.edu)
_http://department-lists.uci.edu/mailman/listinfo/law-election_
(http://department-lists.uci.edu/mailman/listinfo/law-election)
--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
_949.824.3072_ (tel:949.824.3072) - office
_949.824.0495_ (tel:949.824.0495) - fax
_rhasen at law.uci.edu_ (mailto:rhasen at law.uci.edu)
_http://law.uci.edu/faculty/page1_r_hasen.html_
(http://law.uci.edu/faculty/page1_r_hasen.html)
_http://electionlawblog.org_ (http://electionlawblog.org/)
Pre-order The Voting Wars: _http://amzn.to/y22ZTv_ (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://law.uci.edu/faculty/page1_r_hasen.html)
_http://electionlawblog.org_ (http://electionlawblog.org/)
Pre-order The Voting Wars: _http://amzn.to/y22ZTv_ (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://law.uci.edu/faculty/page1_r_hasen.html)
_http://electionlawblog.org_ (http://electionlawblog.org/)
Pre-order The Voting Wars: _http://amzn.to/y22ZTv_ (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://law.uci.edu/faculty/page1_r_hasen.html)
_http://electionlawblog.org_ (http://electionlawblog.org/)
Pre-order The Voting Wars: _http://amzn.to/y22ZTv_ (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://law.uci.edu/faculty/page1_r_hasen.html)
_http://electionlawblog.org_ (http://electionlawblog.org/)
--
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://law.uci.edu/faculty/page1_r_hasen.html)
_http://electionlawblog.org_ (http://electionlawblog.org/)
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20120717/125ac539/attachment.html>
View list directory