Thursday, December 3, 2009

ACLU Sides With Prop 8 Supporters Over Disclosure

Yes, you read that right. The ACLU has sided with the Prop 8 supporters on the issue of internal campaign documents and whether or not they should have to hand them over to the plaintiffs in the federal case challenging the initiative. They argued their case at Tuesday's hearing.

The San Francisco Gate reports that the Northern California chapter, which supports the challenge, filed arguments with the Ninth Circuit Court arguing that forced disclosure of the documents could endanger people's freedom to speak while planning political campaigns, which they say is an infringement upon First Amendment protections.
"Political advocacy and strategizing is inherently rough and tumble," the ACLU told the court, which accepted the filing Tuesday shortly before hearing arguments in Pasadena on the disclosure issue.

"The people charged with running those campaigns cannot do so effectively while fearing that every proposal they float, every crazy idea they shoot down ... will ultimately become fodder for their opponents," said Stephen Bomse, a San Francisco attorney who represented the ACLU.

He also said Prop. 8's backers have demanded similar campaign documents from the ACLU, which opposed the ballot measure.
Parts of the amicus brief filed by the ACLU, posted fully below, states:
What Plaintiffs want are Proponents’ internal strategy documents—private e-mails from those who were central to the campaign, strategy plans, and “brainstorming” sessions with campaign consultants and pollsters about arguments that should and should not be advanced ...But that is all core First Amendment information ...

The people charged with running those campaigns cannot do so effectively while fearing that every proposal they float, every crazy idea they shoot down, every campaign plan that ultimately is not implemented will become fodder for discovery by their campaign opponents in the event of subsequent litigation, not to mention a blueprint for those opponents to use in future electoral battles. A rule that would open internal campaign communications to compelled disclosure upon a simple showing of ordinary litigation relevance would not breathe fresh air into the electoral process so much as flatten it like a house of straw.
ACLU's Amicus Letter Brief for Review and Filed Motion to Become Amicus Curiae, Filed 11-27-09 in Perry v. ...

I guess you can say I'm a little flabbergasted. I've been fully in support of the effort to get the Prop 8 folks to hand over the documents. Never before has a marriage case gone to trial, and revealing the motivations behind those who ran the campaign is essential to proving the argument that the initiative was done purely out of animus and a means to discriminate against LGBT citizens.

However, the ACLU raises a good point that our own efforts to get a hold of these documents can turn around later and bite us, and the rest of the nation, in the ass. It may already since the ACLU claims that the Prop 8 proponents have already subpoenaed them for NO on 8 documents (I guess proponents figure if they have to . . . ), and ACLU says they themselves will appeal any court order demanding they hand the communications over. Though I would say to this, "What do we have to hide?" But the impact could be much wider than how it affects us.

Which activist hasn't held brainstorming meetings and recorded ideas that came out of these sessions only to toss them aside as not workable, and in some cases, having realized to be offensive? Would we want these sessions used against us later as evidence of prejudice even though the concepts that came out of them were the result of free-flow thought and never used?

I'm not defending these Prop 8 folks. It's quite obvious why they did what they did, but that's not what the ACLU is arguing against. Is there another means by which we can prove the animus? I know the Olson/Boies team plans to use expert witness testimony, question Prop 8 campaigners and more - so how important are these documents to our strategy?

Honestly, I haven't made up my mind on this. I have been in full favor of disclosing the Prop 8 documents, but the ACLU's arguments have given me pause. Yet if the court does rule that the communications be handed over, and it gives the anti-LGBT forces second thoughts on continuing their unconstitutional ballot war, then maybe it will be a good thing.

(H/T to Proposition 8 and the Right to Marry)


  1. I don't see how those documents are First Amendment protected. They are not trade secrets, nor attorney-client privileged, nor doctor-patient, confessioner-priest, or any of the other protected classes of communication I'm aware of.

    Perhaps this is one I've never heard of ... but then apparently never has Judge Walker or, in fact, any of the Prop 8 defendants ... or they could simply assert it by name. It seems to be a new privilege they want to establish. And though I can see the advantage of being able to speak freely in a campaign context, I see quite a danger in being able to speak free of all consequences. Free speech in this country does NOT relieve you of the consequences of that speech. With some thought given to the matter by yours truly, I come down opposite the ACLU on this one.

  2. "Free speech in this country does NOT relieve you of the consequences of that speech."

    Funny you should say this, because I've said it, too. And thank you for reminding me of this truth.

    This is one of those times I really want to hear from my readers to see what they think. So thanks.