Wednesday, December 2, 2009

ACLU's amicus brief letter supporting First Amendment privilege of Prop. 8 proponents to withhold internal campaign documents from Perry plaintiffs

12/01/09 SF Chronicle:
The American Civil Liberties Union, which supports marital rights for gays and lesbians, is siding with opponents of same-sex marriage who are challenging a judge's order to turn over campaign documents from last year's effort to pass Proposition 8 ... The ACLU's Northern California chapter, which supports [plaintiffs in Perry v. Schwarzenneger], nevertheless filed arguments with the Ninth U.S. Circuit Court of Appeals saying the court-ordered disclosure could endanger people's freedom to speak freely while planning political campaigns.
ACLU's amicus letter brief for review and filed motion to become amicus curiae, filed 11/27/09 in Perry v. Hollingsworth, No. 09-17241 (9th Cir.)
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.


Phillip Minton said...

I'm kind of stumped on this one. Not quite sure what to make of it.

Gregory said...

ACLU's support here for a strong First Amendment privilege against discovery seems quite predictable. If nothing else, the ACLU has been integral to developing this privilege over the past 50+ years.

On the underlying merits, the ACLU clearly support the plaintiffs. But it doesn't want to see First Amendment protections trampled in the process of vindicating the plaintiffs' rights.

I think the ACLU is proposing too tough a standard (they do recognize some exceptions to the privilege), but Walker's probably applying too loose a standard.

Michael Ginsborg said...
This comment has been removed by the author.
Gregory said...

Judges Berzon and Fisher certainly share your concern about how the campaign is harmed under a protective order. They spent a while grilling Cooper (atty for proponents) on that question.

As for the effect on future campaigns rising to the occasion, I doubt you'll get much love from the Ninth Circuit. The judges will rather jealously guard the right to be offensive. But, I'm glad you're willing to beg that question.

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