Prop. 8 proponents alleged to use latest discovery dispute in Perry case to try to distance themselves from anti-gay prejudice

Plaintiffs' opposition to Prop. 8 proponents' and Dr. "William" Tam's motions for reconsideration to strike, Perry v. Schwarzenneger, No. 09-cv-2292 (N.D.Cal. May 6, 2010)

Plaintiff-intervenor City and County of San Francisco's opposition to Prop. 8 proponents' and Dr. Tam's motion to strike / reconsider, Perry v. Schwarzenneger, No. 09-cv-2292 (N.D.Cal. May 6, 2010)

Declaration of Therese M. Stewart in support of plaintiff-intervenor City and County of San Francisco's opposition to Prop. 8 proponents' and Dr. Tam's motion to strike / reconsider, Perry v. Schwarzenneger, No. 09-cv-2292 (N.D.Cal. May 6, 2010)

(Thanks to Kathleen Perrin for alerting me to these filings and posting the links.)

Parties in Perry v. Schwarzenneger continue to dispute the scope of First Amendment protection from compelled disclosure of private communications to develop campaign strategy and messaging. The latest version of the dispute concerns whether Prop. 8 proponents, and their recalcitrant witness, Dr. Hak Shing "William" Tam, can now claim a First Amendment privilege as reason to strike from the trial record campaign communications by Tam and other Prop. 8 supporters, and testimony about the communications.

Here's the context. In December, a 9th Circuit panel ruled that Prop. 8 proponents - the "defendant-intervenors" in the case - are entitled to a limited First Amendment privilege for internal campaign communications. "Perry I," 91 F.3d 1147, 1165 n.12 (9th Cir. 2010) In that case, Prop. 8 proponents appealed discovery orders requiring them to give plaintiffs internal campaign communications between proponents and any third parties, including political consultants. Judge Walker had limited the privilege to just the "the identities of rank-and-file volunteers and similarly situated individuals." Proponents appealed the orders, claiming a First Amendment privilege for all of their confidential communications with third parties. They argued that participants in initiative campaigns would otherwise experience a "chilling effect" on their political speech and association if they know that their campaign communications may be discoverable in lawsuits. A 9th Circuit panel limited the First Amendment privilege to "private, internal ... communications among the core group of persons engaged in the formulation of campaign strategy and messages."

To comply with this ruling, Magistrate Judge Joseph Spero applied proponents' First Amendment privilege to "an extremely broad core group that listed 25 individuals and their assistants, employees from ten consulting firms, and any and all 'volunteers who had significant roles in formulating strategy and messaging.'" (Plaintiffs' opposition, at 4) Proponents did not present evidence that Dr. Tam, or other agents of obvious anti-gay bigotry, belonged to the core group of persons eligible for the privilege. In fact, they abdicated any ties to Dr. Tam and other Prop. 8 supporters whose hostile, anti-gay messages could support plaintiffs' claim that proponents used or abetted prejudice to influence Californians to vote for Prop. 8.

After the trial, No-on-8 nonparties appealed discovery orders compelling them to give Prop. 8 proponents their internal campaign communications with Equality For All coalition partners. The same 9th Circuit panel denied review of the appeal, but clarified its earlier holding: a core group of persons subject to the First Amendment privilege can include persons who belong to more than one organization. Perry II, Perry v. Schwarzenegger, No. 10-15649, slip op. (9th Cir. Apr. 12, 2010) (hunter of justice)

The No-on-8 groups, facing the risk of a contempt citation, decided to turn over the campaign communications they had been ordered to provide proponents. But Dr. Tam and proponents recently filed motions to exclude from the trial record campaign communications, and related testimony, that they had not, until now, objected to as privileged under the First Amendment. The communications reveal the nature of the relationship between the proponents and Prop. 8 allies who perpetrated the most hateful messages about gays. Proponents and Dr. Tam do not want Walker to consider evidence about the ways in which proponents and anti-gay groups worked together.

Proponents and Dr. Tam now argue that Judge Walker must reconsider the discovery orders by Spero and him that required them to produce the communications. They claim that, in light of Perry I and Perry II, these orders have "clear errors." Walker and Spero allegedly mistook the Perry I holding to mean that the First Amendment protects communications internal to just one organization - ProtectMarrige.com / Yes on 8, and not also private communications between ProtectMarriage.com and members of allied organizations. But the 9th Circuit rulings, they say, extend the First Amendment privilege "to those persons who come together 'to advance one's shared political beliefs,' including "myraid social, economic, religious and political organizations." Perry I, 591 F.3d at 1158, 1162 (Defendant-intervenors' motion for leave to strike, at 2, and motion to strike)

Prop. 8 proponents have already appealed Perry I to the U.S. Supreme Court, alleging that it unconstitutionally limits First Amendment privilege to a "core group" of persons who developed campaign strategy and messaging. (hunter of justice) Law professor Nan Hunter has faulted the Supreme Court petition as "weak." Petitioners asked the Court to place the petition on hold pending its decision in Doe v. Reed. But now Prop. 8 proponents appear to present the argument that the privilege holding in Perry I - as clarified by Perry II - has a much broader scope than what they represent in the Supreme Court petition. They understand the holding to effectively eviscerate the idea of a core campaign group as a subject of First Amendment privilege. They now claim, in their motion to strike, that the First Amendment protects from discovery "communications regarding the exchange of ideas and/or formulation of messaging and strategy among persons who associate during the Proposition 8 campaign for the common purpose of that measure" (Defendant-intervenors' motion for leave to strike and motion to strike, at 9)

Plaintiffs and plaintiff-intervenors argue that Walker and Spero did not err in their January orders compelling proponents to produce the now contested campaign communications. Even if they did err, their error was far from clear, because proponents never furnished evidence that these communications were private communications among a core group of persons - persons with decision-making authority to develop campaign strategy and messaging. "[E]ven though (as proponents now finally and belatedly admit but had previously denied) ProtectMarriage.com is linked to the messages disseminated by other groups, including messages designed to promote stereotypes about, and prejudice against, gay and lesbian individuals, and even though the evidence shows ProtectMarriage.com sometimes knew of, encouraged or acquiesced in, and even funded the distribution of such messages, these facts are not enough to establish that its communication with these groups fall within the [First Amendment] privilege exception to disclosure." (Plaintiff-intervenors' opposition, at 10)