Prop 8 Proponents Argue at Hearing That Handing Over Campaign Documents Violates Their 1st Amendment Protections

UPDATE: Listen to an audio file of the hearing.

Earlier, I reported on the federal challenge against Prop 8 and how the defendants, those defending the initiative, we're trying to wiggle out of Judge Walker's orders to hand over internal campaign documents to plaintiffs by appealing to the Ninth Circuit Court. Plaintiffs need the documents to prove at the January 11 trial that the ballot measure was passed with "discriminatory intent."

Tuesday was the hearing on the appeal which took place in Pasadena, CA. According to the Los Angeles Times, defendants argued that handing over the documents would violate their 1st Amendment protections.

Defendant's lawyer Charles Cooper argued to the three-judge appellate panel that disclosing the documents would have a "chilling effect" on freedom of speech and free association, especially in regards to any future ballot campaigns.

Arguing for plaintiffs, Theodore Boutrous, said the documents would prove that the Prop 8 campaign plotted to "push the buttons" of voters, stoking their ant-gay fears.

"He produced one message obtained from a Proposition 8 proponent warning that the consequences of failing to pass the gay-marriage ban would include California 'falling into the hands of Satan' and the next step in the gay-rights movement, including 'sex with children,'" reports the Los Angeles Times.

Melanie Nathan of Lez Get Real and O-blog-dee-o-blog-da, reports:

The three 9th Circuit judges hearing the appeal, all appointees of President Clinton, expressed reservations about approving an overly broad disclosure.

“We’re not just talking about Prop. 8,” said Judge Kim McLane Wardlaw, noting that every campaign in the future could be subject to similarly exhaustive document exchanges if they approved the requested disclosure.

The other two judges on the panel, Marsha S. Berzon and Raymond C. Fisher, suggested that there probably was voluminous information illuminating the campaign strategy available online and from public pronouncements such as the flurry of television ads than ran ahead of the vote.

Although 9th Circuit panels often take months to issue rulings, a decision on the campaign communications is expected sooner, probably within a couple of weeks, to allow the trial on Proposition 8’s constitutionality to proceed on schedule, according to attorneys.

I don't blame the judges for their reservations - the trial of Prop 8 will be the first ever held on a marriage case. Whatever is determined in this trial and the run-up to the trial will be setting precedent.

Their determination on whether or not the Prop 8 campaign should follow Judge Walker (whose job it is to gather as much information as possible for the higher courts who will hear the inevitable appeals) and his order and hand over the internal documents can have a long-lasting effect on future campaigns.

Of course, I think that would be a great effect. The referendum process is broken and being abused, and this would surely curtail blatant discriminatory actions taking advantage. Simply the fact that anyone can come forward in California with ballot language and enough signatures and say, "Put this on the ballot" is a bit ridiculous. And though I think the California divorce ban ballot measure is hysterical, it also proves my point.

Let's hope the Ninth Circuit Court judges agree with me.