9th Circuit panel rules that Prop. 8 proponents can withhold internal campaign communications from Perry plaintiffs - commentary update

Perry v. Hollingsworth, No. 09-17241, 12/11/09 opinion by 9th Circuit panel (Kim M. Wardlaw, Raymond C. Fisher and Marsha S. Berzon) to reverse discovery orders in Perry v. Schwarzenneger

Proposition 8 amended the California Constitution to provide that only marriage between a man and a woman is valid or recognized in California. Two same-sex couples filed this action in the district court alleging that Proposition 8 violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The official proponents of Proposition 8 (“Proponents”) intervened to defend the suit. Plaintiffs served a request for production of documents on Proponents, seeking, among other things, production of Proponents’ internal campaign communications relating to campaign strategy and advertising. Proponents objected to disclosure of the documents as barred by the First Amendment. In two orders, the district court rejected Proponents’ claim of First Amendment privilege. Proponents appealed both orders. We granted Proponents’ motion for stay pending appeal.

We have the authority to hear these appeals either under the collateral order doctrine or through the exercise of our mandamus jurisdiction. We reverse. The freedom to associate with others for the common advancement of political beliefs and ideas lies at the heart of the First Amendment. Where, as here, discovery would have the practical effect of discouraging the exercise of First Amendment associational rights, the party seeking discovery must demonstrate a need for the information sufficiently compelling to outweigh the impact on those rights. Plaintiffs have not on the existing record carried that burden in this case. We
therefore reverse and remand.

Commentary

12/13/09 Volokh Conspiracy by UCLA law professor Eugene Volokh

I think the opinion’s arguments are quite persuasive, especially given the Court’s longstanding recognition of a presumptive First Amendment right to confidential association, at least where compelled disclosure of who belongs to a group is involved.

But the trouble is that there are Supreme Court cases, which the Ninth Circuit opinion doesn’t cite, that seem to point in the opposite direction: EEOC v. University of Pennsylvania and Herbert v. Lando.

12/16/09 Leonard Link, by law professor Arthur Leonard:

Professor Leonard summarizes the ruling and the procedural events leading up to it.

12/14/09 episodically blogging by Parenthetical Greg

I’m beginning to think that this entire appeal was improvidently granted (or just too rushed to reach a well considered result). It wasn’t clear to the court what the discovery orders encompassed. It wasn’t clear what standard the court applied. It wasn’t clear what standard the proponents proposed. And, you can add Prof. Volokh’s observations to my “why didn’t you address this” critique.