[EL] Prop 8 harassment

[Rick Hasen]

Jim Bopp wrote a message which I inadvertently deleted but was able to 
find in this archived post 
<http://department-lists.uci.edu/pipermail/law-election/2013-August/007755.html> 
and this one 
<http://department-lists.uci.edu/pipermail/law-election/2013-August/007756.html>. 
In the posts, Jim claimed there were lots of instances of Prop. 8 
supporters be harassed (thanks to mapquesting by the "homosexual lobby" 
of campaign donors).

Jim and I debated this point on the listserv last year.  In that series 
of posts, I pointed out that the courts in the Protectmarriage.com and 
Doe v. Reed cases rejected Jim's claims that there was much 
unconstitutional harassment of people simply for making donations.  
(There were some instances of harassment of leaders of the group---but 
not of simple campaign donors).  If I remember Jim's response the last 
time we debated this, he rejected the court's findings on the extent of 
the harassment as well as the question of what should count as 
unconstitutional harassment.  (The debate has some interesting parallels 
to the points Sam Bagenstos was making about private retaliation.)

I cover the evidence of the extent of the harassment in Chill Out: A 
Qualified Defense of Campaign Finance Disclosure Laws in the Internet 
Age <http://ssrn.com/abstract=1948313>, 27 /Journal of Law and Politics/ 
557 (2012). I'd also recommend my former student's note, Elian Dashev 
Economic Boycotts as Harassment: The Threat to
First Amendment Protected Speech in the Aftermath of Doe v. Reed 
<http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=2776&context=llr>. 
In my article, while I reject the claims of harassment as exaggerated, I 
do believe that as a matter of policy, jurisdictions should greatly 
increase the threshold for disclosure of campaign contributions and 
spending, because there is a value in donor privacy and releasing the 
names of those who are very small financial players in elections does 
not serve an important governmental purpose.

I don't plan to engage in a debate about this with Jim again---but I did 
not want to leave his points unanswered for those new to the listserv 
(or with memory loss).

**

-- 
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://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

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