_______________________________________________ 

             

___________________

   

 

___________________ 

                

         

       

     

       

___________________ 

     

     

     

       

     

   

     

     

  

     

      

     

     

     

     

     

   

   

     

      

No. 08­205
 

In the Supreme Court of the United States

CITIZENS UNITED,

Appellant,

v.

FEDERAL ELECTIONS COMMISSION,

Appellee.

On Appeal from the United States District Court

for the District of Columbia

BRIEF OF AMICUS CURIAE
 

ALLIANCE DEFENSE FUND
 

IN SUPPORT OF APPELLANT
 

Benjamin W. Bull Tyson C. Langhofer

Counsel of Record Megan E. Garrett

Erik W. Stanley Court T. Kennedy

ALLIANCE DEFENSE FUND Thomas A. Simpson

15100 N. 90TH Street Nicholas G. Frey

Scottsdale, AZ 85260 STINSON MORRISON

(480) 444­0020 HECKER LLP

1625 N Waterfront

Robert J. McCully Pkwy, Suite 300

SHOOK, HARDY & BACON Wichita, KS 67206

LLP

2555 Grand Blvd.

Kansas City, MO 64108
     

     

               

       

   

         

       

           

    

   

           

       

       

   

         

   

   

         

   

     

  

   

         

         

       

TABLE OF CONTENTS
 

INTEREST OF AMICUS IN THIS CASE ................. 1
 

SUMMARY OF ARGUMENT .................................... 2
 

ARGUMENT............................................................... 4
 

I.	 THERE EXISTS A STRONG AND

HISTORICALLY PROTECTED INTEREST

IN PROMOTING AND PRESERVING AN

INDIVIDUAL’S RIGHT TO EXPRESS HIS OR

HER POLITICAL VIEWPOINTS. THIS

COURT HAS CONSISTENTLY

SUBJUGATED GOVERNMENTAL

INTERESTS, SUCH AS THOSE FOUND IN

THE BCRA, TO THOSE INDIVIDUAL

RIGHTS WHEN ADDRESSING ISSUE

ADVOCACY. .................................................... 4

II.	 THE COURT SHOULD FOLLOW ITS LONGSTANDING PRECEDENTS AND CONTINUE

TO DISTINGUISH BETWEEN EXPRESS

ADVOCACY AND ISSUE ADVOCACY WHEN

FACED WITH REGULATORY SCHEMES

COMPELLING DISCLOSURE OF A

SPEAKER’S IDENTIFYING

INFORMATION............................................. 11

A.	 First Amendment Rights to Freedom of

Speech and Association are Core,

Fundamental Rights. ........................11

­ i ­
     

             

        

   

             

           

   

         

             

       

         

   

           

             

         

       

   

           

         

             

       

   

   

   

   

   

B.	 Political Speech is an Integral Part of

Free Speech and Association

Rights.................................................12

C.	 The Right to Choose Anonymity is an

Important Part of Engaging in Political

Speech. ...............................................14

D.	 One of Purposes of Allowing Anonymity

is to Allow Expression without Fear of

Reprisal, a Purpose Whose Importance

Has Been Highlighted by Recent

Events. ...............................................16

E.	 Given the Purpose of Protecting One’s

Right to Express His or Her Political

Issue Viewpoints Freely, this Court has

Consistently Stood for Individual

Freedoms. ..........................................22

F.	 This Court Should Again Stand for

Individual Freedoms in Viewing Those

Provisions of the BCRA that Could Be

Interpreted to Encompass Issue

Advocacy. ...........................................28

CONCLUSION.......................................................... 30
 

APPENDIX 1............................................................. 1a
 

APPENDIX 2............................................................. 6a
 

APPENDIX 3........................................................... 12a
 

­ ii ­
     

   

   

   

    

APPENDIX 4........................................................... 15a
 

APPENDIX 5........................................................... 22a
 

APPENDIX 6........................................................... 24a
 

APPENDIX 7.......................................................... 29a
 

­ iii ­
     

     

 

        

           

      

           

        

           

      

                         

      

             

            

           

        

           

               

                     

              

           

          

           

              

           

            

           

                 

          

             

TABLE OF AUTHORITIES
 

Cases

Abrams v. United States,

250 U.S. 616 (1919) .............................................13
 

Agostini v. Felton,
 

521 U.S. 203 (1997) ...............................................1
 

Bates v. Little Rock,
 

361 U.S. 516 (1960) .............................................22
 

Buckley v. Valeo,
 

424 U.S. 1 (1976) ...............4, 5, 6, 8, 24, 25, 26, 27
 

Cantwell v. Connecticut,
 

310 U.S. 296 (1940) .......................................12, 13
 

Dale v. Boy Scouts of America,
 

530 U.S. 640 (2000) ...............................................1
 

De Jonge v. Oregon,
 

299 U.S. 353 (1937) .............................................12
 

Fed. Election Comm’n v. Wisconsin Right to Life,
 

Inc., 127 S. Ct. 2652 (2007).......................2, 5, 8, 9
 

First Nat’l Bank of Boston v. Bellotti,
 

435 U.S. 765 (1978) ...............................................2
 

Gibson v. Fla. Legis. Investigation Comm’n.,
 

372 U.S. 539 (1963) .............................................15
 

Good News Club v. Milford Central Schools,
 

533 U.S. 98 (2001) .................................................1
 

Grosjean v. Am. Press Co., Inc.,
 

297 U.S. 233 (1936) ....................................... 11­12
 

Lovell v. Griffin, 303 U.S. 444 (1938).....................14
 

McConnell v. Fed. Election Comm’n,
 

540 U.S. 93 (2003 ..............................................6, 7
 

­ iv ­
     

           

                           

      

           

      

                   

                

               

      

    

                 

        

           

      

           

      

             

        

           

      

                 

      

                     

      

           

 

           

   

           

           

       

McIntyre v. Ohio Elections Comm’n,

514 U.S. 334 (1995) .......4, 5, 12, 14, 15, 22, 23, 28
 

Mitchell v. Helms,
 

530 U.S. 793 (2000) ...............................................1
 

NAACP v. Alabama,
 

357 U.S. 449 (1958) .....................12, 15, 16, 22, 27
 

North Carolina Right to Life, Inc. v. Leake,
 

525 F.3d 274 (4th Cir. 2008) ..................................9
 

ProtectMarriage.com v. Bowen;
 

2:09­cv­00058­MCE­DAD (E.D.

California January 7, 2009)..............17, 18, 19, 20
 

Rita v. United States,
 

354 U.S. 476 (1957) ...............................................4
 

Schneider v. Irvington,
 

308 U.S. 147 (1939) .............................................12
 

Shelton v. Tucker,
 

364 U.S. 479 (1960) .............................................24
 

Sweezy v. New Hampshire,
 

354 U.S. 234 (1957) .............................................13
 

Talley v. California,
 

362 U.S. 60 (1960) .............................14, 15, 16, 24
 

Thomas v. Collins,
 

323 U.S. 516 (1945) ...............12, 14, 23, 24, 26, 27
 

Williams v. Rhodes,
 

393 U.S. 23 (1968) ...............................................12
 

Other Authorities

2 U.S.C. §434 (f)(3)(A)(i) ...........................................7
 

2 U.S.C. §434 (f)(3)(A)(ii) ..........................................7
 

Adrienne S. Gaines, Radical Gay Activists
 

Seek to Intimidate Christians, Charisma

Magazine, Nov. 19, 2008, available at

http://www.charismamag.com/cms/news/

­ v ­
     

     

          

       

             

           

     

   

           

           

                   

             

           

             

             

           

           

                 

         

      

   

           

            

   

   

 

               

         

archives/111908.php .....................................19, 20

Bipartisan Campaign Reform Act of

2002..........................................................1, passim

Cal. Gov’t Code §§ 84600–12 ..................................17

Cal. Gov’t Code §84211...........................................17

Californians Against Hate,

http://www.californiansagainsthate.com (last

visited Jan. 12, 2009) ..........................................21

Carri Geer Thevenot, Judge Chides Ballot

Groups, Las Vegas Rev. J., June 9, 2006 ...........21

Erksine's Speeches 52 (High's ed.).........................12

Federal Election Campaign Act .................4, passim

John R. Lott & Bradley Smith, Donor

Disclosure Has Its Downsides, Wall St. J.,

December 26, 2008 ........................................17, 18

Molly Ball, Tax and Spending Control

Backers’ Foes Get Physical, Las Vegas Rev. J.,

June 7, 2006 ........................................................21

Prop. 8 Maps,

http://www.eightmaps.com .................................21

Vandals Spray Paint Signs in Downtown

Fullerton, Orange County Register, Oct. 20,

2008, available at http://www.ocregister.com

/articles/macdonald­one­police­2200383­paintvandals#......................................................... 19­20

Constitutional Provisions

Cal. Const. art. 1, § 7.5 ...........................................17
 

U.S. Constitution amend. I.......................................4
 

­ vi ­
     

 

           

         

           

             

         

              

             

                   

               

               

             

               

         

               

   

                 

               

                  

                   

               

                 

               

                                           

                         

                         

                   

                     

                     

         

INTEREST OF AMICUS IN THIS CASE1 

ALLIANCE DEFENSE FUND (“ADF”) is a notfor­profit public interest organization that provides

strategic planning, training, and funding to attorneys

and organizations regarding religious civil liberties

and family values. ADF and its allied organizations

represent hundreds of thousands of Americans who

believe strongly in these topics, and who have a right

to express those views through this nation’s political

process. ADF’s allies include more than 1,200

lawyers and numerous public interest law firms,

many of whom have been recently pressed into

service to represent individuals and organizations

being harassed for expressing their viewpoints in the

political arena.

ADF has advocated for the rights of Americans to

exercise their religious beliefs and to express those

beliefs in the political arena. ADF has been directly

or indirectly involved in at least 500 cases and legal

matters, including cases before this Court such as

Good News Club v. Milford Central Schools, 533 U.S.

98 (2001), Mitchell v. Helms, 530 U.S. 793 (2000);

1 All parties have consented to the filing of this brief. No

counsel for a party authored this brief in whole or in part, and

no counsel or party made a monetary contribution intended to

fund the preparation or submission of this brief. No person

other than Amicus Curiae, its members, or its counsel made a

monetary contribution to its preparation or submission.

­ 1 ­
     

                   

               

     

       

               

             

             

             

       

         

                   

                 

       

               

           

               

             

   

         

                 

                 

                  

               

                  

           

             

     

             

               

           

Agostini v. Felton, 521 U.S. 203 (1997); and Dale v.

Boy Scouts of America, 530 U.S. 640 (2000).

SUMMARY OF ARGUMENT

ADF contends that the Bipartisan Campaign

Reform Act of 2002 (“BCRA”), and specifically its

provisions requiring the disclosure of names and

addresses of anyone who contributes $1,000.00 or

more for the purpose of furthering an electioneering

communication, operate as an unconstitutional

restraint upon an individual’s First Amendment

right to express his or her political viewpoints in the

public arena, to the extent that the BCRA‘s definition

of “electioneering communication” is interpreted to

extend in any manner whatsoever to anything other

than express advocacy or its functional equivalent.

ADF first contends that this Court has already

addressed this First Amendment concern by limiting

the BCRA‘s definition of “electioneering

communications,” so that the only communications

regulable under any provision of the BCRA are those

that are capable of no interpretation other than an

appeal to vote for or against a specific candidate. See

Fed. Election Comm’n v. Wisconsin Right to Life,

Inc., 127 S. Ct. 2652 (2007) (“WRTL”). As such, the

trial court’s decision that the BCRA‘s disclosure

provisions apply more broadly is erroneous and

should be reversed.

Alternatively, ADF contends that the instant case

presents the Court with the opportunity to ensure

that the BCRA‘s disclosure provisions operate in

­ 2 ­
     

                 

                 

             

           

                   

                 

                   

                   

                   

                 

               

                 

               

                 

               

                 

             

   

such a fashion as to ensure that Americans continue

to have “the liberty to discuss publicly and truthfully

all matters of public concern without previous

restraint or fear of subsequent punishment.” First

Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 776

(1978). This liberty to express one’s political views

without fear of reprisal is one that pre­dates the very

formation of our Constitution; it is a right that has

existed throughout the life of this great nation; it is a

freedom that now hangs in the balance as clearly

evidenced by events emanating from the most recent

election cycle. The Court has the opportunity to

preserve this very critical privilege accorded to the

people of this country, by reversing the decision of

the trial court, and holding that the BCRA‘s

disclosure provisions do not apply so broadly as to

encompass speech beyond express advocacy or its

functional equivalent.

­ 3 ­
     

 

                    

 

        

                        

     

     

   

                        

        

        

 

           

             

                 

           

               

           

                 

                 

           

           

               

           

                 

                   

               

              

           

                 

            

ARGUMENT
 

I. THERE EXISTS A STRONG AND
 

HISTORICALLY PROTECTED INTEREST

IN PROMOTING AND PRESERVING AN

INDIVIDUAL’S RIGHT TO EXPRESS HIS OR

HER POLITICAL VIEWPOINTS. THIS

COURT HAS CONSISTENTLY

SUBJUGATED GOVERNMENTAL

INTERESTS, SUCH AS THOSE FOUND IN

THE BCRA, TO THOSE INDIVIDUAL

RIGHTS WHEN ADDRESSING ISSUE

ADVOCACY.

The United States Constitution states that

“Congress shall make no law...abridging the freedom

of speech.” U.S. Constitution amend. I. This Court

has recognized that political speech “occupies the

core of the protection afforded by the First

Amendment.” McIntyre v. Ohio Elections Comm’n,

514 U.S. 334, 346 (1995). “Discussion of public

issues...[is] integral to the operation of the system of

government established by our Constitution. The

First Amendment affords the broadest protection to

such political expression in order ‘to assure [the]

unfettered interchange of ideas for the bringing

about of political and social changes desired by the

people.’” Buckley v. Valeo, 424 U.S. 1, 14 (1976)

(quoting Rita v. United States, 354 U.S. 476, 484

(1957)). The McIntyre Court further noted that these

principles extend equally to issue­based elections,

and that issue advocacy “is the essence of First

Amendment expression.” McIntyre, 514 U.S. at 347.

­ 4 ­
     

                   

               

                    

             

             

                   

             

                   

               

           

             

         

     

             

               

             

             

             

       

                 

          

             

                     

     

             

              

           

             

         

             

         

                 

                 

It comes as no surprise, then, that this Court has

taken an exacting view of any governmental attempt

to regulate political speech. See WRTL, 127 S. Ct. at

2664 (“Because BCRA §203 burdens political speech,

it is subject to strict scrutiny.”); McIntyre, 514 U.S.

at 347 (“When a law burdens core political speech, we

apply ‘exacting scrutiny,’ and we uphold the

restriction only if it is narrowly tailored to serve an

overriding state interest.”); Bellotti, 435 U.S. at 786

(constitutionality of proposed restriction “turns on

whether it can survive the exacting scrutiny

necessitated by a state­imposed restriction of

freedom of speech.”).

When this Court has turned that “exacting

scrutiny” upon legislation calling for the disclosure of

identifying information about either the author of, or

a supporter of, some particular speech, it has

consistently drawn a distinction between speech that

is unambiguously campaign­related (i.e., in support

of or in opposition to a particular candidate) and

speech that is not unambiguously campaign­related.

The Court first articulated this distinction in

Buckley, 424 U.S. at 80­81, where it was faced with a

constitutional challenge to the disclosure

requirements of the Federal Election Campaign Act

(“FECA”). The Court determined that the disclosure

requirement in question potentially suffered from

vagueness and overbreadth issues, but then cured

those issues by construing the disclosure

requirement to reach only those expenditures that

were used for “communications that expressly

advocate the election or defeat of a clearly identified

candidate.” Id. at 80. The Buckley Court used this

­ 5 ­
     

       

             

           

                 

               

                  

               

             

                     

                   

               

                   

               

           

               

                  

             

                 

   

               

                   

                 

               

             

     

                   

               

       

             

               

       

same narrowing construction to preserve the

“limitation on expenditures” provisions of the FECA

against invalidation on the same vagueness and

overbreadth grounds. Id. at 42­44. See also

McConnell v. Fed. Election Comm’n, 540 U.S. 93,

121­22 (2003). There was no distinction drawn in the

way that the term “expenditures” was to be

interpreted for purposes of determining whether the

speech could be regulated – it was the type of speech

at issue, and the not the manner of restriction, that

proved paramount.

Accordingly, from the time of the Buckley decision

in 1976 up to the passage of BCRA in 2002,

individuals were allowed to express, or support the

expression of, political viewpoints, retaining the

choice of whether to publicly identify themselves as

an advocate of those viewpoints. At the same time,

the government’s interest in ensuring the integrity of

the election process was met, to the greatest extent

constitutionally permitted.

The BCRA’s passage in 2002 now threatens this

balance. Indeed, if the decision of the trial court

were allowed to stand, the balance will clearly have

been upset, and individuals will find their First

Amendment rights to express, or support the

expressions of, political viewpoints significantly

hampered. Like the FECA that was the subject of

the Buckley opinion, the BCRA, by its terms, seeks to

impose contribution and expenditure limitations, and

also seeks to impose disclosure requirements, again

mandating the reporting of names and addresses of

individuals contributing more than a threshold

­ 6 ­
     

               

                 

             

               

     

           

         

       

             

           

           

                     

       

                 

                 

                   

               

                 

              

             

             

               

                                           

             

             

               

                   

               

                 

                   

                     

                     

              

amount towards a particular campaign. What the

BCRA did differently from the FECA (as narrowed by

the Buckley Court) was to include an expansive

definition of the types of speech purportedly falling

under its control.

The BCRA, by its terms, specifies “significant

disclosure requirements for persons who fund

electioneering communications.” McConnell, 540

U.S. at 190. “Electioneering communications” is a

new term coined “to replace the narrowing

construction of FECA’s disclosure provisions adopted

by [the Supreme Court] in Buckley.” Id. at 189. The

term “electioneering communication” encompasses

any “broadcast, cable, or satellite communication

that (a) referred to a clearly identified candidate for

Federal office, (b) was made within the 60 days

before a general election or within the 30 days before

a primary election involving that candidate, and (c)

was targeted to the relevant electorate. 2 U.S.C.

§434 (f)(3)(A)(i).2 As enacted, the BCRA extended to

speech having nothing to do with a particular

candidate’s campaign if that speech happened to

breathe a word of the candidate within the

2 Interestingly, Congress foresaw the very issue being

debated here, and enacted an alternative definition for

“electioneering communication” to be used in the event the

original is found wanting in a Constitutional sense. That

alternative definition requires the communication to do much

more than simply “refer” to a candidate; indeed, the

communication must (a) either support a candidate, or oppose a

candidate, for that office, and (b) be suggestive of no plausible

meaning other than an exhortation to vote for or against a

specific candidate. 2 U.S.C. §434 (f)(3)(A)(ii).

­ 7 ­
     

           

             

         

     

           

             

             

                   

         

         

            

                   

           

       

             

         

                

                 

               

               

             

                  

                 

               

         

                 

               

                  

               

         

            

     

prescribed blackout period. Congress clearly

intended to broaden the regulatory coverage; any

such broadening results inevitably in a constriction

of individual liberties.

Fortunately for the preservation of those

individual liberties, this Court stepped into the

discussion and, with its decision in WRTL,

announced that “enough is enough.” 127 S. Ct. at

2672. The WRTL Court acknowledged “the

governmental interest in preventing corruption and

the appearance of corruption” in election campaigns.

Id. at 2672 (quoting Buckley, 424 U.S. at 45). To

meet that interest, the Court approved regulations

which focused upon the potentially detrimental

efforts of using campaign contributions to secure

political quid­pro­quos from current and potential

officer holders. It was that interest which persuaded

the Court to approve a certain amount of speech

regulation. But, it was the Court’s clear

understanding of that interest that also prompted it

to draw the distinction between “express advocacy”

and “issue advocacy.” See WRTL, 127 S. Ct. at 2672;

Buckley, 424 U.S. at 42­44, 80­81. And, the WRTL

opinion is abundantly clear that the Court intends

that distinction to continue throughout the

framework of the BCRA. BCRA’s reach simply does

not extend to communications that are not express

advocacy or its functional equivalent. 127 S. Ct. at

2673. Specifically, “[i]ssue ads...are by no means

equivalent to contributions, and the quid­pro­quo

corruption interest cannot justify regulating them.”

Id. at 2672.

­ 8 ­
     

               

               

             

           

                      

                     

               

               

               

             

           

             

            

               

         

               

                   

           

                  

                

           

             

               

           

                 

               

             

         

                 

             

           

                 

While the specific type of regulation addressed by

the WRTL opinion was BCRA §203 (limits on

corporate contributions), it is clear that the opinion

extends to BCRA §201 (disclosure requirements) as

well. For it was not the nature of the regulation that

drove the Court’s holding – it was the nature of the

speech that the government was trying to regulate

that was paramount. The WRTL Court did not

spend its time discussing distinctions and nuances of

the various regulatory schemes; instead, its decision

was instead devoted to discerning those distinctions

and nuances between express advocacy and issue

advocacy. The BCRA continues but one overarching

term as to what speech triggers regulatory coverage,

that being “electioneering communication.” The

WRTL Court has determined that that term must be

construed so as to reach only express advocacy or its

functional equivalent if it is to pass constitutional

scrutiny. See also North Carolina Right to Life, Inc.

v. Leake, 525 F.3d 274, 280­84 (4th Cir. 2008)

(relying in part upon WRTL to invalidate North

Carolina campaign finance law as unconstitutional in

that its scope went beyond both “express advocacy”

and its “functional equivalent;” Fourth Circuit

focused upon the type of speech regulated, and not

the type of regulation; the Court invalidated the

entire regulatory scheme to the extent it went

beyond “express advocacy and its functional

equivalent.”)

In the instant case, all parties agree that the

advertisements at issue are neither express advocacy

nor its functional equivalent. Trial Court

Memorandum Opinion, at p. 10. As such, the

­ 9 ­
     

               

                 

               

           

       

             

                 

               

  

advertisements are not subject to regulation of any

sort under the BCRA. Subjecting them to such

regulation, in light of their recognition as something

other than express advocacy communications, clearly

imposes unconstitutional burdens upon those

individuals or entities seeking to propound such

speech. Accordingly, the decision of the trial court

granting summary judgment to the FEC should be

reversed.

­ 10 ­
     

                    

   

    

          

       

        

 

                   

          

   

             

                 

                 

             

             

                 

       

                 

               

                 

                     

               

               

           

   

           

             

           

                 

         

                   

II.	 THE COURT SHOULD FOLLOW ITS LONGSTANDING PRECEDENTS AND CONTINUE

TO DISTINGUISH BETWEEN EXPRESS

ADVOCACY AND ISSUE ADVOCACY WHEN

FACED WITH REGULATORY SCHEMES

COMPELLING DISCLOSURE OF A

SPEAKER’S IDENTIFYING INFORMATION.

A.	 First Amendment Rights to Freedom of

Speech and Association are Core,

Fundamental Rights.

Alternatively, if the BCRA’s provisions have not

been limited by WRTL to apply only to express

advocacy, the BCRA must be so narrowed to uphold

its constitutionality. The rights to political speech

and free association are core, fundamental rights

that include the right to anonymity. These rights

have been afforded specific protections throughout

this nation’s history and are deemed essential to the

functioning of a democratic society. Any limitation

on these rights is subject to exacting scrutiny and

can be upheld only if it is narrowly tailored to serve

an overriding state interest. The BCRA, to the

extent its restrictions are applied to anything other

than express advocacy, is unconstitutional against

these standards.

Throughout its history, this Court has

consistently extolled the virtues and necessity of

vigorously protecting the First Amendment’s freedom

of speech and association. “The liberty of opinion

keeps governments themselves in due subjection to

their duties.” Grosjean v. Am. Press Co., Inc., 297

­ 11 ­
     

             

                 

                 

                 

              

                

               

               

             

                 

              

                

                     

                 

               

                 

               

               

            

               

                                               

       

             

                 

        

                    

               

                   

           

                        

                   

U.S. 233, 247­48 (1936) (quoting Erksine’s Speeches

525 (High’s ed.)). The fundamental right of free

speech “reflects the belief of the framers of the

Constitution that exercise of the right[] lies at the

foundation of free government by free men.”

Schneider v. Irvington, 308 U.S. 147, 161 (1939).

“There is some modicum of freedom of thought,

speech and assembly which all citizens of the

Republic may exercise through its length and

breadth, which no State, nor all together, nor the

Nation itself, can prohibit, restrain or impede.”

Thomas v. Collins, 323 U.S. 516, 543 (1945).

Inherent in the right to free speech are the rights of

freedom of association and assembly. De Jonge v.

Oregon, 299 U.S. 353, 364 (1937); NAACP v.

Alabama, 357 U.S. 449, 460 (1958). “The essential

characteristic of these liberties is, that under their

shield many types of life, character, opinion and

belief can develop unmolested and unobstructed.”

Cantwell v. Connecticut, 310 U.S. 296, 310 (1940).

B.	 Political Speech is an Integral Part of Free

Speech and Association Rights.

This Court has long recognized that political

speech, in particular, lies at the core of these

“indispensable” and “great” freedoms. See McIntyre,

514 U.S. at 346 (1995); Thomas, 323 U.S. at 529­30.

“Competition in ideas and governmental policies is at

the core of our electoral process and of the First

Amendment Freedoms.” Williams v. Rhodes, 393

U.S. 23 (1968). After all, “the best test of truth is the

power of the thought to get itself accepted in the

­ 12 ­
     

               

           

               

           

           

           

         

                 

       

           

     

             

         

     

                 

   

             

               

                     

                 

                 

                  

                  

             

               

                   

                 

               

                 

                     

           

competition of the market.” Abrams v. United

States, 250 U.S. 616, 630 (1919).

Our form of government is built on the

premise that every citizen shall have

the right to engage in political

expression and association. This right

was enshrined in the First Amendment

of the Bill of Rights. Exercise of these

basic freedoms in America has

traditionally been through the media of

political associations. Any interference

with the freedom of a party is

simultaneously an interference with the

freedom of its adherents.

Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957)

(plurality opinion).

The recognition and protection of the right to

engage in political speech is protected even though

the exercise of such rights are likely to be abused or

offensive. Tensions may arise in the realm of

political belief and speech, where “the tenets of one

man may seem the rankest error to his neighbor.”

Cantwell, 310 U.S. at 310. Despite this friction and

the propensity of persons to exaggerate, vilify, or

even make false statements, “the people of this

nation have ordained in the light of history, that in

spite of the probability of excesses and abuses, these

liberties are, in the long view, essential to

enlightened opinion and right conduct on the part of

the citizens of a democracy.” Id. The liberty of free

speech “was not protected because the forefathers

­ 13 ­
     

                 

                 

             

                 

             

               

              

         

               

                   

               

               

               

             

   

                                      

                       

 

                 

                   

                 

                  

       

               

                     

              

         

                 

                 

                   

             

   

expected its use would always be agreeable to those

in authority or that its exercise always would be

wise, temperate, or useful to society”; instead, “this

liberty was protected because they knew of no other

way by which free men could conduct representative

democracy.” Thomas, 323 U.S. at 545­46 (Jackson,

J., concurring). “[P]olitical speech by its nature will

sometimes have unpalatable consequences, and, in

general, our society accords greater weight to the

value of free speech than to the dangers of its

misuse.” McIntyre, 514 U.S. at 357. Accordingly,

this Court has been, and always should be,

“extremely reticent to tread” into the liberty of

political expression. Sweezy, 354 U.S. at 250

(plurality opinion).

C.	 The Right to Choose Anonymity is an

Important Part of Engaging in Political

Speech.

An integral part of the freedom of speech and

association is the right of the speaker to maintain his

or her anonymity. McIntyre, 514 U.S. at 342;

NAACP, 357 U.S. at 462. “[A]n author’s decision to

remain anonymous, like other decisions concerning

omissions or additions to the content of a publication,

is an aspect of the freedom of speech protected by the

First Amendment.” McIntyre, 514 U.S. at 342.

Historically, pamphlets and leaflets have been

“‘weapons in the defense of liberty.’“ Talley v.

California, 362 U.S. 60, 62 (1960) (quoting Lovell v.

Griffin, 303 U.S. 444, 452 (1938)). Some of these

“weapons” were either signed with pseudonyms or

anonymous; indeed “[a]nonymous pamphlets,

­ 14 ­
     

               

              

                  

               

               

                 

           

                     

               

           

                   

                 

             

                   

                 

             

           

               

         

         

           

                 

              

               

              

             

               

             

                

                     

                 

             

                  

leaflets, brochures and even books have played an

important role in the progress of mankind.” See id.

at 63 n.3, 64. Patriots from the Revolutionary War

era concealed their authorship or distribution so as

to avoid potential prosecution; the writer of the

Letters of Junius is still unknown; and even the

Federalist Papers were published without disclosing

the authors’ true identities. Id. at 65. History has

shown that “it is plain that anonymity has

sometimes been assumed for the most constructive

purposes.” Id. In fact, “an advocate may believe her

ideas will be more persuasive if her readers are

unaware of her identity. Anonymity thereby provides

a way for a writer who may be personally unpopular

to ensure that readers will not prejudge her message

simply because they do not like its proponent.”

McIntyre, 514 U.S. at 343.

History also teaches “that in times of high

emotional excitement minority parties and groups

which advocate extremely unpopular social or

governmental innovations will always be typed as

criminal gangs and attempts will always be made to

drive them out.” Gibson v. Fla. Legis. Investigation

Comm’n, 372 U.S. 539, 571 (1963) (Douglas, J.,

concurring). A vital relationship exists between the

freedom of association and privacy in those

associations and there are times during which the

government cannot compel group members to be

publicly identified. NAACP, 357 U.S. at 462; Talley,

362 U.S. at 65. “[W]hether a group is popular or

unpopular, the right of privacy implicit in the First

Amendment creates an area into which the

Government may not enter.” Gibson, 372 U.S. at 569

­ 15 ­
     

              

           

           

         

                

             

             

               

             

           

                  

     

                        

                    

                    

               

       

             

                 

                   

                  

           

                 

                     

                     

               

                 

         

               

             

             

(Douglas, J., concurring). “Inviolability of privacy in

group association may in many circumstances be

indispensable to preservation of freedom of

association, particularly where a group espouses

dissident beliefs.” NAACP, 357 U.S. at 462.

“[I]dentification and fear of reprisal might deter

perfectly peaceful discussions of public matters of

importance.” Talley, 362 U.S. at 65. “Persecuted

groups and sects from time to time throughout

history have been able to criticize oppressive

practices and laws either anonymously or not at all.”

Id. at 64.

D.	 One of Purposes of Allowing Anonymity is

to Allow Expression without Fear of

Reprisal, a Purpose Whose Importance Has

Been Highlighted by Recent Events.

The purpose underlying the Constitution’s

protection of an individual’s right to maintain

anonymity in speech is no less prominent today than

it was during the writing of the Federalist Papers or

during the days of the Civil Rights campaigns. The

adverse consequences which may result from the

voicing of one’s political expression are just as likely

today as they have been at any time in this nation’s

history. One has to look no further than this past

election cycle for real­world examples of the reprisals

which have been exacted on persons who have done

nothing more than exercise their constitutionally

protected right to express their political opinions.

The most recent examples of persons suffering

from retributive acts for political speech come from

­ 16 ­
     

                

                 

                       

                 

         

                 

               

                 

                   

               

                   

         

               

                  

               

                

                 

             

               

             

           

     

           

                     

                 

             

                        

               

                   

             

               

               

California. Proposition 8 was a ballot proposal that

restricted the definition of marriage as to between a

man and a woman. Cal. Const. art. 1, § 7.5. Similar

to the provisions of BCRA at issue here, the

California Government Code requires any committee

that supports or opposes a ballot measure to disclose

the name, address and employer of any individual

that makes a contribution to that committee in an

amount over $100. Cal. Gov’t Code §84211. The

same code requires the California Secretary of State

to post that information on the internet. Id. §§

84600–12.

Many persons who contributed to organizations

that supported the passing of Proposition 8 have

suffered greatly as a direct result of their donation.

Examples of retributive acts against donors in favor

of the measure are prevalent and widespread. John

R. Lott & Bradley Smith, Donor Disclosure Has Its

Downsides, Wall St. J., December 26, 2008

(Appendix, Exhibit A). Supporters of Proposition 8

have been subjected to threatening and harassing

phone calls, emails, and postcards. See

ProtectMarriage.com v. Bowen; 2:09­cv­00058­MCEDAD (E.D. California January 7, 2009), Complaint ¶

31. Some of the phone calls and emails have been

accompanied by death threats. Id. One such

message relayed to a supporter “Consider yourself

lucky. If I had a gun I would have gunned you down

along with each and every other supporter....I’ve also

got a little surprise for Pasor [sic] Franklin and his

congregation of lowlife’s [sic] in the coming

future....He will be meeting his maker sooner than

expected....If you thought 9/11 was bad, you haven’t

­ 17 ­
     

                 

             

                   

               

         

     

             

             

                     

               

             

           

                   

               

               

               

             

                

   

               

                   

           

             

         

             

            

                 

                   

               

               

                 

                 

seen anything yet.” Id. Churches and religious

organizations have also been targeted for their

support of Proposition 8. Id. ¶33. Two temples

owned by the Church of Jesus Christ of Latter­day

Saints and a Knights of Columbus facility received

envelopes containing a suspicious white powdery

substance. Id.

Although much retaliation has come in the

form of personal attacks and threats, the retribution

has come in economic form as well. See Lott &

Smith, Donor Disclosure Has Its Downsides. Scott

Eckern, director of the nonprofit California Musical

Theater in Sacramento, and Richard Raddon,

director of the L.A. Film Festival, were both forced to

resign from their jobs after their employers were

targeted for protests and boycotts because of the

individuals’ campaign donations to “Yes on 8”, the

committee established to advocate for the passage of

Proposition 8. Likewise, a store owner in California

that personally donated money to

ProtectMarriage.com – Yes on 8, displayed a yard

sign, and made phone calls on behalf of the campaign

received retaliation because of the owner’s personal

support for Proposition 8. ProtectMarriage.com v.

Bowen; 2:09­cv­00058­MCE­DAD, Decl. of [John Doe

#1] in Support of Plaintiffs’ Motion for Preliminary

Injunction, ¶¶ 2–27 (Appendix 2). Fliers referencing

the owner’s support of Proposition 8 were posted on

cars parked in the store’s parking lot, the store was

picketed twice, harassing phone calls were made, and

efforts were undertaken to cause persons to boycott

the store because of the owner’s personal support of

Proposition 8. Id. at ¶¶ 8, 10–15. Additionally,

­ 18 ­
     

               

                 

             

               

                   

                

       

               

             

              

                   

                 

                 

         

               

           

                   

             

                   

                

       

       

                

               

           

               

               

               

           

         

Facebook groups have been created urging persons to

boycott the store, a sponsored link on Google was

purchased and the website referenced the owner’s

donation and urged a boycott, and negative reviews

were posted on other websites based only on the store

owner’s personal donation to Proposition 8. Id. at ¶¶

10–14.

The harassment which supporters of

Proposition 8 have been subjected to goes beyond

economic acts, extending to property damage, and

physical violence. For example, in November, 2008,

someone used a “Yes on 8” yard sign posted on

property owned by a Lutheran Church and a heavy

object to break a large window on the church

building. ProtectMarriage.com v. Bowen; 2:09­cv00058­MCE­DAD, Decl. of [John Doe #3] in Support

of Plaintiffs’ Motion for Preliminary Injunction, ¶¶ 9­

16 (Appendix 3). Churches owned by the Church of

Jesus Christ of Latter­day Saints have been

vandalized, one of which had the words “No on 8”

spray painted upon it. Adrienne S. Gaines, Radical

Gay Activists Seek to Intimidate Christians,

Charisma Magazine, Nov. 19, 2008, available at

http://www.charismamag.com/cms/news/archives/111

908.php (last visited Dec. 5, 2008) (Appendix 4).

Other churches were egged and toilet­papered, had a

window broken, marquee vandalized, flags stolen,

and adhesive poured onto a doormat, keypad and

window. Id. Other businesses’ buildings were spray

painted with messages like “Prop H8TE.” Vandals

Spray Paint Signs in Downtown Fullerton, Orange

County Register, Oct. 20, 2008, available at

http://www.ocregister.com/articles/macdonald­one­

­ 19 ­
     

         

     

               

                  

                 

                 

             

         

                 

                     

                  

         

               

        

             

                   

                   

             

              

     

                 

               

             

          

             

               

             

                

                   

               

             

                   

police­2200383­paint­vandals# (last visited Dec. 5,

2008) (Appendix 5).

There have been many acts of physical violence

relating to support given for Proposition 8. A group

participating in a prayer walk was accosted by a

crowd of individuals that threw hot coffee on and

pushed group members. Gaines, Radical Gay

Activists Seek to Intimidate Christians, Charisma

Magazine, Nov. 19, 2008. One individual was hit

with a Bible, pushed to the ground, and kicked. Id.

The group’s leader was threatened with death. Id.

Another 69­year­old Palm Springs woman was

allegedly pushed and spit on by protestors opposing

Proposition 8. Id.

The harassment has become so severe that some

of the contributors to the “Yes on 8” committee have

filed a lawsuit in federal district court to have their

names removed from the California Secretary of

State’s website. See ProtectMarriage.com – Yes on 8

v. Bowen; 2:09­cv­00058­MCE­DAD (E.D. Calif.

January 7, 2009). The Complaint in that lawsuit

alleges that supporters of Proposition 8 have been

subjected to threats, harassment and reprisals for

their support of Proposition 8. ProtectMarriage.com

v. Bowen; Complaint ¶ 31. The reprisals are wellcoordinated and are solely designed to punish the

supporters of Proposition 8 for exercising their

respective freedom of speech and association. In fact,

opponents of Proposition 8 have gone so far as to

establish a website that is designed to identify

supporters of Proposition 8 and encourages donations

to the website in order to “take action” against those

­ 20 ­
     

       

       

               

         

                 

              

          

                   

         

         

             

   

                

           

               

                 

                  

             

             

                 

             

                  

             

             

                   

               

                     

                

           

                  

             

                     

that supported Proposition 8. See

http://www.californiansagainst hate.com. There is

also a website that plots the disclosed names,

addresses, occupations, and employers of purported

Proposition 8 supporters on a Google street map with

the language: “Proposition 8 changed the California

state constitution to prohibit same­sex marriage.

These are the people who donated in order to pass

it.” See Prop. 8 Maps, http://www.eightmaps.com

(last visited Jan. 13, 2009).

Acts of reprisal are not limited to harassing

financial supporters of controversial initiative

petitions such as Proposition 8. Opponents of some

initiative petitions have targeted individuals that

merely attempted to collect the required number of

signatures in order to place the measure on the

ballot. In 2006, signature gatherers for the Tax and

Spending Control (“TASC”) initiative petition filed a

lawsuit against Nevadans for Nevada, a group

formed to opposed the ballot measure. Molly Ball,

Tax and Spending Control Backers’ Foes Get

Physical, Las Vegas Rev. J., June 7, 2006. (Appendix

6). The lawsuit alleged that opponents intimidated

petition signers, blocked access to petitions and

poured soda over the petitions. Id. That lawsuit

resulted in a court order commanding workers for

Nevadans for Nevada to abide by a set of rules that

would allow the TASC group to collect signatures.

Carri Geer Thevenot, Judge Chides Ballot Groups,

Las Vegas Rev. J., June 9, 2006. (Appendix 7).

This brief discussion of recent reprisals exacted

upon persons as a result of the exercise of their free

­ 21 ­
     

                 

               

                

                 

         

                 

              

                   

               

             

           

                   

       

                                 

                               

                         

               

 

               

               

              

                  

               

           

               

         

               

             

               

                 

               

                   

speech rights is indicative of the heated nature of

political debate and of the tensions inherent within

the political process. These examples should serve to

remind this Court of the reasons why the First

Amendment’s protections have always extended to

protecting one’s right to voice his or her opinion,

especially one of a political nature, anonymously.

They should serve also to remind the Court of the

need to guard against any weakening of these

protections in the name of preventing campaign

corruption, especially where the primary purpose

and content of the speech is one of issue advocacy,

and not express advocacy.

E.	 Given the Purpose of Protecting One’s

Right to Express His or Her Political Issue

Viewpoints Freely, this Court has

Consistently Stood for Individual

Freedoms.

In recognition of the importance of such right, this

Court has always imposed a strict scrutiny analysis

upon any governmental restriction of such right. See

McIntyre, 513 U.S. at 345­46; NAACP, 357 U.S. at

461, 466 (requiring a “compelling interest” and a

“controlling justification” for deterring the right to

associate); Bates v. Little Rock, 361 U.S. 516, 524

(1960) (“Where there is a significant encroachment

upon personal liberty, the State may prevail only

upon showing a subordinating interest which is

compelling.”). The proper standard of review to

apply to this Court’s review of the BCRA, therefore,

is “exacting scrutiny,” where the statute may be

upheld “only if it is narrowly tailored to serve an

­ 22 ­
     

               

     

                 

             

                  

               

               

                  

                     

                   

              

                     

                   

               

                 

             

                 

                 

                  

           

               

                

             

       

             

             

             

             

                   

               

               

             

overriding state interest.” McIntyre, 514 U.S. 334,

345­46, 347.

The right to be free from compelled disclosure of

one’s beliefs and associations has consistently been

protected by this Court. In Thomas, the Court struck

down a statute requiring labor union organizers to

file a written request with the state before

“soliciting” any members to join the union. 323 U.S.

at 519. Prior to that time, the Court had largely

failed to address the extent to which a state could

require identification before speaking. Id. at 539.

The Court held that “[s]o long as no more is involved

than exercise of the rights of free speech and free

assembly,” the right cannot be subject to a

requirement of prior registration. Id. at 539­40. “A

requirement that one must register before he

undertakes to make a public speech to enlist support

for a lawful movement is quite incompatible with the

requirements of the First Amendment.” Id. at 540.

Decisions following Thomas further explained the

right to remain free from compelled disclosure of

identity and association. In NAACP, the Court found

an order requiring production of the NAACP’s

membership lists offended the Constitution

inasmuch as privacy in associations may be

indispensable to preserving the freedom to associate

and the state did not demonstrate a “controlling

justification” for the interference the order would

create. 357 U.S. at 462. Further precedent was

established in Bates, where convictions pursuant to a

tax ordinance requiring the NAACP to reveal the

identity of persons paying dues or making

­ 23 ­
     

              

                 

           

               

         

                  

       

       

               

             

                 

           

                  

           

           

                       

               

                 

                 

           

           

           

                   

               

               

               

             

       

     

             

   

               

               

contributions to the organization were stricken. 361

U.S. at 517­18. The record revealed that former

NAACP members did not renew their memberships

because of the ordinance and other members were

harassed and threatened when the community

became aware of their membership. Id. at 521­22.

Under these circumstances, the compulsory

disclosure “would work a significant interference

with the freedom of association of their members”

and, while partially attributable to private action,

“was brought to bear only after the exercise of

governmental power had threatened to force

disclosure of the members’ names.” Id. at 523­24.

Because the municipalities did not show justification

sufficient to defend the interference, the convictions

could not stand. Id. at 527; see also Shelton v.

Tucker, 364 U.S. 479, 485­490 (1960) (although a

state has a relevant interest in ensuring its teachers

are competent and fit to teach, an inquiry into all

associational connections the teachers have had in

the past five years was a “comprehensive

interference” with the teachers’ rights of association

and went “far beyond what might be justified in the

exercise of the State’s legitimate inquiry into the

fitness and competency of its teachers”); Talley, 362

U.S. at 63­65 (ordinance barring the distribution of

circulars unless they contained the identification of

persons preparing, distributing, or sponsoring them

was facially void; identification requirement

infringed on the right of expression and

dissemination of information).

Buckley was the first case to address compelled

disclosure in the context of modern election campaign

­ 24 ­
     

                   

   

         

                 

             

           

         

             

                 

             

                   

                   

           

         

               

               

             

             

                         

               

                 

             

           

               

                   

               

             

                       

               

       

               

                       

       

laws. 424 U.S. at 1 (1976). The Court considered

whether the campaign contribution disclosure

requirements of the FECA were unconstitutionally

vague. Id. at 76­77. FECA required political

committees—with the threat of criminal fine or

confinement, or both—to keep records of

contributions and expenditures, including detailed

information about persons who had contributed to

the committee. Id. at 62­64. The committees were

then required to submit quarterly reports containing

the identity of those who contributed over $100 in a

calendar year. Id. at 63. FECA also required

individuals and groups other than political

committees or candidates to report independent

expenditures of over $100 to the Federal Election

Commission. Id. at 63­64. However, FECA

attempted to limit its application by defining

“contributions” and “expenditures” as “the use of

money or other objects of value ‘for the purpose of . . .

influencing’ the nomination or election of any person

to federal office.” Id. at 62­63 (citations omitted).

The Court concluded that the FECA disclosure

provision was unconstitutionally vague as written

because it “could be interpreted to reach groups

engaged purely in issue discussion.” Id. at 79. In

order for the FECA disclosure provision to be

constitutional, it was necessary to interpret the

provision in such a way that it would only apply in a

limited number of circumstances: “(1) when they

make contributions earmarked for political purposes

or authorized or requested by a candidate or his

agent . . . , and (2) when they make expenditures for

communications that expressly advocate the election

­ 25 ­
     

                    

     

             

                 

               

                    

             

         

                 

                   

                   

               

           

                     

                  

     

         

             

               

               

         

             

           

               

       

       

         

         

           

         

               

   

or defeat of a clearly identified candidate.” Id. at 80

(emphasis added).

In conducting a similar analysis of a different

section of FECA, the Court suggested that whether a

communication meets the express advocacy test is a

question of form over substance. See id. at 42­44.

Indeed, the Court explained that limiting FECA‘s

reach to those communications containing “explicit

words of advocacy” was necessary to give a speaker

the ability to determine what will or will not subject

him to FECA rather than leave the question to the

“mercy of the varied understanding of his hearers

and consequently of whatever inference may be

drawn as to his intent and meaning.” Id. at 43

(quoting Thomas, 323 U.S. at 535). The Court more

fully observed that:

[W]hether words intended and designed

to fall short of invitation would miss

that mark is a question both of intent

and of effect. No speaker, in such

circumstances, safely could assume that

anything he might say upon the general

subject would not be understood by

some as an invitation. In short, the

supposedly clear­cut distinction between

discussion, laudation, general advocacy,

and solicitation puts the speaker in

these circumstances wholly at the mercy

of the varied understanding of his

hearers and consequently of whatever

inference may be drawn as to his intent

and meaning.

­ 26 ­
     

             

           

   

             

                 

     

           

               

       

                 

               

                

                    

                 

               

                

               

                 

               

             

         

                 

         

                

                   

               

                 

           

                  

Such a distinction offers no security for

free discussion. In these conditions it

blankets with uncertainty whatever

may be said. . . .

Id. at 43 (quoting Thomas, 323 U.S. at 535)

(emphasis added).

Accordingly, the Court found that its construction

of FECA would restrict the statute’s application to

“communications containing express words of

advocacy of election or defeat, such as ‘vote for,’

‘elect,’ ‘support,’ ‘case your ballot for,’ “smith for

Congress,’ ‘vote against,’ ‘defeat,’ [or] ‘reject.’“ Id. at

44 n.52. The purpose of this requirement is to ensure

that “[f]unds spent to propagate one’s views on issues

without expressly calling for a candidate’s election or

defeat are thus not covered.” Id. at 44.

Even where express words of advocacy are used

with respect to a clearly identified candidate, a group

may be exempt from having to disclose its

contributors if evidence is presented showing “a

reasonable probability that the compelled disclosure

of a party’s contributors’ names will subject them to

threats, harassment, or reprisals from either

Government officials or private parties.” Id. at 71­72,

74 (citing NAACP, 357 U.S. at 462.). In such

circumstances, the threat to the exercise of First

Amendment rights and the risk of chilling speech is

so serious that it outweighs the government’s

interest in requiring disclosure. Id. at 71, 73­74.

­ 27 ­
     

         

                 

           

               

                    

           

         

            

                

           

                 

               

             

                 

               

   

             

                   

             

                  

         

                 

           

             

                 

             

              

                       

                   

                      

          

More recently, in McIntyre, this Court

determined the extent to which the right to remain

anonymous applied to documents that were

“intended to influence the electoral process.” 514

U.S. at 344. The statute in question, relating only to

publications intended to influence an election,

required identifying information for the person or

business responsible for the publication. Id. at 345­

56. The state’s proffered interests of providing voters

with additional relevant information and protecting

against fraud and libel did not justify requiring an

author to “make statements or disclosures she would

otherwise omit” because the author’s identity added

“little, if anything, to the reader’s ability to evaluate

the document’s message.” Id. at 348­49. The state’s

interest in providing additional information,

therefore, was “plainly insufficient” to support the

statute. Id. at 349. Preventing fraud and libel, the

state’s other proffered interest, was “legitimate,” but

insufficient to justify the statute. Id. at 349­50.

Particularly, other state­law provisions protected

against fraud, yet the statute at issue in McIntyre

applied to all campaign literature, even those

documents that were devoid of false or misleading

statements. Id. at 349­51. As such, Ohio’s interests

were insufficient to outweigh the infringement on the

right to free speech. See id. at 357.

F.	 This Court Should Again Stand for

Individual Freedoms in Viewing Those

Provisions of the BCRA that Could Be

Interpreted to Encompass Issue Advocacy.

­ 28 ­
     

           

             

         

                 

           

           

                 

         

           

             

           

           

       

             

                 

                 

       

               

               

             

                 

       

           

           

                

         

           

                 

               

                 

               

           

The Constitution affords special protection to the

anonymity of association and speech, especially for

independent election­related activity. Under these

standards, the provisions of the BCRA, as applied to

speech other than express advocacy, is

unconstitutional. The restrictions and forced

disclosure imposed by the BCRA are akin to the

unconstitutional statute considered in McIntyre

inasmuch as they regulate independent political

activity and require disclosure and identification for

any writings referencing a candidate, regardless of

whether the writing advocates for the candidate’s

election or defeat.

Nor have the BCRA‘s provisions been narrowly

tailored, as can be seen from the alternate definition

suggested by Congress in the event that the term

“electioneering communications” is considered too

broad. Conceivably, the lesser intrusion upon the

right to speech, association and its concomitant right

to anonymity served by the alternate definition will

serve the government’s interest to the same extent as

the unconstitutionally broad definition currently

adopted. The BCRA, therefore, cannot

constitutionally apply to any communications that

are not express advocacy or its functional equivalent.

Any other interpretation imposes an unconstitutional

restraint upon the exercise of First Amendment

rights and deters the discussion of public matters of

importance. Because the trial court’s decision was

based upon the BCRA, without limiting the reach of

that Act to express advocacy communications, it is

constitutionally flawed and must be reversed.

­ 29 ­
     

 

     

                 

                   

    

     

     

   

     

       

     

     

     

     

     

     

       

           

      

     

         

     

      

     

       

CONCLUSION
 

Amicus Alliance Defense Fund respectfully

request that this Court reverse the judgment of the

District Court, and remand the case to that court for

further proceedings.

Respectfully submitted,

Benjamin W. Bull

Counsel Of Record

Erik Stanley

Alliance Defense Fund

15100 North 9th Street

Scottsdale, Arizona 85260

(480) 444­0020

Tyson C. Langhofer

Megan E. Garrett

Court T. Kennedy

Thomas A. Simpson

Nicholas G. Frey

Stinson Morrison Hecker LLP

1625 North Waterfront Pkwy, Suite 300

Wichita, Kansas 67206

Robert J. McCully

Shook, Hardy & Bacon LLP

2555 Grand Blvd.

Kansas City, MO 64108­2613

Attorneys for Amicus Curiae

January 15, 2009

­ 30 ­
     

   

                         

                           

      

             

                

              

           

                   

             

                   

                

                   

             

             

                 

                  

   

               

                   

                      

             

                 

               

             

                   

APPENDIX 1

Donor Disclosure Has Its Downsides

By John R. Lott Jr.
 

And Bradley Smith
 

How would you like elections without secret

ballots? To most people, this would be absurd.

We have secret balloting for obvious reasons.

Politics frequently generates hot tempers. People

can put up yard signs or wear political buttons if

they want. But not everyone feels comfortable

making his or her positions public ­­ many worry that

their choice might offend or anger someone else.

They fear losing their jobs or facing boycotts of their

businesses.

And yet the mandatory public disclosure of

financial donations to political campaigns in almost

every state and at the federal level renders people’s

fears and vulnerability all too real. Proposition 8 ­­

California’s recently passed constitutional

amendment to outlaw gay marriage by ensuring that

marriage in that state remains between a man and a

woman ­­ is a dramatic case in point. Its passage has

generated retaliation against those who supported it,

once their financial support was made public and put

online.

For example, when it was discovered that Scott

Eckern, director of the nonprofit California Musical

Theater in Sacramento, had given $1,000 to Yes on 8,

­ 1a ­
     

             

                

               

                

                 

                   

               

                 

                 

         

                     

               

               

            

             

               

   

                   

                 

                   

               

         

                 

           

             

                    

               

                     

the theater was deluged with criticism from

prominent artists. Mr. Eckern was forced to resign.

Richard Raddon, the director of the L.A. Film

Festival, donated $1,500 to Yes on 8. A threatened

boycott and picketing of the next festival forced him

to resign. Alan Stock, the chief executive of the

Cinemark theater chain, gave $9,999. Cinemark is

facing a boycott, and so is the gay­friendly Sundance

Film Festival because it uses a Cinemark theater to

screen some of its films.

A Palo Alto dentist lost patients as a result of his

$1,000 donation. A restaurant manager in Los

Angeles gave a $100 personal donation, triggering a

demonstration and boycott against her restaurant.

The pressure was so intense that Marjorie

Christoffersen, who had managed the place for 26

years, resigned.

These are just a few instances that have come to

light, and the ramifications are still occurring over a

month after the election. The larger point of this

spectacle is its implications for the future; to

intimidate people who donate to controversial

campaigns.

The question is not whether Prop. 8 should have

passed, but whether its supporters (or opponents)

should have their political preferences protected in

the same way that voters are protected. Is there any

reason to think that the repercussions Mr. Eckern

faced for donating to Prop. 8 would be different if it

­ 2a ­
     

                 

   

             

                 

                     

                   

           

                   

       

                 

          

             

             

             

                 

                    

                   

             

                   

                

               

             

     

                   

                   

           

           

           

                    

were revealed that instead of donating, he had voted

for it?

Indeed, supporters of Prop. 8 engaged in pressure

tactics. At least one businessman who donated to

“No on 8,” Jim Abbott of Abbot & Associates, a real

estate firm in San Diego, received a letter from the

Prop. 8 Executive Committee threatening to publish

his company’s name if he didn’t also donate to the

“Yes on 8” campaign.

In each case, the law required disclosure of these

individuals’ financial support for Prop. 8.

Supposedly, the reason for requiring disclosure of

campaign contributions is to allow voters to police

politicians who might otherwise become beholden to

financiers by letting voters know “who is behind the

message.” But, in a referendum vote such as Prop. 8,

there are no office holders to be beholden to big

donors.

Does anyone believe that in campaigns costing

millions of dollars a donation of $100, or even $1,000

or $10,000 will give the donor “undue” influence?

Over whom? Meanwhile, voters learn little by

knowing the names and personal information of

thousands of small contributors.

Besides, it is not the case that voters would have

no recourse when it comes to the financial backers of

politicians or initiatives. Even without mandatory

disclosure rules, the unwillingness to release

donation information can itself become a campaign

issue. If voters want to know who donated, there will

­ 3a ­
     

               

                 

                 

                      

               

                 

               

                   

                

               

                  

               

                   

              

                 

               

         

                

              

         

         

                

               

     

               

               

                 

               

               

                 

be pressure to disclose that information. Possibly

voters will be most concerned about who the donors

are when regulatory issues are being debated. But

that is for them to decide. They can always vote “no.”

Ironically, it has long been minorities who have

benefited the most from anonymous speech. In the

1950s, for example, Southern states sought to obtain

membership lists of the NAACP in the name of the

public’s “right to know.” Such disclosure would have

destroyed the NAACP’s financial base in the South

and opened its supporters to threats and violence. It

took a Supreme Court ruling in NAACP v. Alabama

(1958) to protect the privacy of the NAACP and its

supporters on First Amendment grounds. And more

recently, it has usually been supporters of gay rights

who have preferred to keep their support quiet.

There is another problem with publicizing

donations in political elections: It tends to entrench

powerful politicians whom donors fear alienating. If

business executives give money to a committee

chairman’s opponent, they often fear retribution.

Other threats are more personal. For example, in

2004 Gigi Brienza contributed $500 to the John

Edwards presidential campaign. An extremist

animal rights group used that information to list

Ms. Brienza’s home address (and similarly, that of

dozens of coworkers) on a Web site, under the

ominous heading, “Now you know where to find

them.” Her “offense,” also revealed from the

campaign finance records, was that she worked for a

­ 4a ­
     

             

                     

                   

                 

               

           

               

             

               

                   

       

               

             

             

     

               

               

   

 

 

 

 

pharmaceutical company that tested its products on

animals.

In the aftermath of Prop. 8 we can glimpse a very

ugly future. As anyone who has had their political

yard signs torn down can imagine, with today’s easy

access to donor information on the Internet, any

crank or unhinged individual can obtain information

on his political opponents, including work and home

addresses, all but instantaneously. When even

donations as small as $100 trigger demonstrations, it

is hard to know how one will feel safe in supporting

causes one believes in.

Mr. Lott, a senior research scientist at the

University of Maryland, is the author of

“Freedomnomics” (Regnery, 2007). Mr. Smith, a

former Federal Election Commission commissioner,

is chairman of the Center for Competitive Politics

and professor of law at Capital University in

Columbus, Ohio.

­ 5a ­
     

   

      

 

               

             

               

               

   

       

     

     

     

       

               

         

      

     

     

       

       

       

               

               

 

   

 

         

   

    

    

APPENDIX 2
 

John Doe #1
 

James Bopp, Jr. (Ind. State Bar No. 2838­84)*

Barry A. Bostrom (Ind. State Bar No. 11912­84)*

Sarah E. Troupis (Wis. State Bar No. 1061515)*

Scott F. Bieniek (Ill. State Bar No. 6295901)*

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, Indiana 47807­3510

Telephone: (812) 232­2434

Facsimile: (812) 235­3685

Counsel for All Plaintiffs

Timothy D. Chandler (Cal. State Bar No. 234325)**

ALLIANCE DEFENSE FUND

101 Parkshore Drive, Suite 100

Folsom, California 95630

Telephone: (916) 932­2850

Facsimile: (916) 932­2851

Counsel for All Plaintiffs

* Pro Hac Vice Application Pending

** Designated Counsel for Service

United States District Court
 

Eastern District of California
 

Case No. 2:09­CV­00058­

ProtectMarriage.com, MCE­DAD

et al.,

DECLARATION OF

Plaintiffs, REDACTED IN SUPPORT N SUPPORT N SUPPORT

­ 6a ­
     

 

   

 

       

 

         

     

   

 

   

   

   

       

           

                       

                   

               

                   

               

               

                  

               

                 

                     

                     

   

                   

                     

                     

                 

                 

v.

Debra Bowen, et al.,

Defendants.

OF PLAINTIFFS’ MOTION

FOR PRELIMINARY

INJUNCTION

Date: TBD

Time: TBD

Judge England

I, REDACTED, make the following declaration

pursuant to 28 U.S.C. § 1746:

1. I am a resident of the state of California over 18

years of age, and my statements herein are based on

personal knowledge.

2. I supported the passage of Proposition 8.

3. In support of the passage of Proposition 8, I

donated $XX,XXX to ProtectMarriage.com – Yes on 8.

4. I own REDACTED, a local REDACTED 

in the Counties of REDACTED ,

have a total of REDACTEDstores in this area.

store REDACTED 

REDACTED, and REDACTED . I

5. My donation to ProtectMarriage.com – Yes on 8

was a personal one, but because one has to list an

employer, I had to list the name of my business since

I am self­employed.

6. In support of the passage of Proposition 8, I

placed a yard sign in the front yard of my home.

7. In support of the passage of Proposition 8, I also

made phone calls on behalf of the Proposition 8

campaign with a group of people from my church.

­ 7a ­
     

                   

                   

                 

                   

                   

               

               

               

   

               

               

           

                

                     

   

               

                     

                   

               

           

                 

             

                 

                     

               

         

                    

                 

8. In October 2008, someone put flyers on all the

cars in the parking lot of my REDACTED store. These

fliers referenced my support of Proposition 8 and my

financial contribution.

9. I believe that, because I was required to provide

the name of my business when I made my personal

donation to ProtectMarriage.com – Yes on 8, and

because this information was made available to the

public, my stores have been targeted for various

forms of harassment.

10. On the social networking website of Facebook,

at least three “groups” have been formed urging

boycotts of

REDACTED 

REDACTED (Boycott

and Boycott REDACTED 

, Boycott REDACTED 

, – Equality for All!!!).

As of January 9, 2009, one of these groups had over

160 members.

11. Someone started REDACTED and for a portion

of November 2008, paid for it to be a sponsored link

on Google. What this means is that, when one

searches for my company on websites that show

Google’s sponsored links, REDACTED is the first

website that appears on the list of sponsored links.

12. The website REDACTED makes reference to

my personal donation in support of Proposition 8 and

urges people to boycott my stores on the basis of my

support

13. On Yelp.com, a website featuring reviews of

local businesses and restaurants, several negative

reviews of my stores have been posted. None of the

reviews have anything to do with my business, but

­ 8a ­
     

       

         

         

                 

             

                 

         

                   

              

             

               

                 

   

                 

               

                    

                 

                 

                    

                 

               

             

                    

                 

                 

             

                 

               

instead reference my donation to

ProtectMarriage.com – Yes on 8.

14. Various other websites have published

negative reviews of my stores based solely on my

donation to ProtectMarriage.com – Yes on 8.

15. Since the passage of Proposition 8, my REDACTED 

store has been picketed twice.

16. On November XX, 2008, there was a march in

REDACTED opposition to Proposition 8 in downtown .

The REDACTED Police Department called and informed

me that they had received information that the

protestors planned to march to my REDACTED store and

picket there.

17. Several of the protestors who came to the

REDACTED store on November XX , 2008 were fairly

aggressive. They stood in front of the entrance to the

store and attempted to give flyers to my customers

stating that they should not shop at my stores

because of my donation to Proposition 8. A true and

correct copy of the flyer distributed by the picketers

is attached to this Declaration as Exhibit A.

18. Several people arrived and were fairly

aggressive. They stood in front of the entrance to the

store and attempted to give flyers to my customers

stating that they should not shop at my stores

because of my donation to Proposition 8.

19. The second time that my REDACTED store was

picketed, several people assembled in front of the

­ 9a ­
     

                   

           

                 

                   

            

               

                   

                 

           

               

               

                   

           

                 

               

               

                 

                      

             

                   

             

   

                     

                   

             

             

               

entrance to the store and tried to get my customers

to sign some sort of petition.

20. The manager of the store told the protestors

they could not block the entrances and exits of the

store. The protestors refused to leave.

20. We called the REDACTED Police Department and

asked them to ask the protestors to move to the

sidewalk, since they were standing in front of the

entrances and we believed they were trespassing,

because the store is located on private property.

21. The REDACTED Police Department told me that

the store is a public place and that the protestors

were not trespassing. The Police Department

refused to ask the protestors to relocate to the

sidewalk.

22. After the passage of Proposition 8, an

individual came into my REDACTED store, filled a

shopping cart with groceries, and took it to the checkout line. Once the cashier had scanned in all of the

items in the shopping cart, the individual announced

that he was not going to buy anything because I

supported Proposition 8, and left without paying for

the items.

23. I have retained many but not all of the letters

and hundreds of e­mails that my stores or I received

because of my support of Proposition 8.

24. My stores received numerous harassing phone

calls that referenced my support of Proposition 8.

­ 10a ­
     

               

               

             

   

             

                   

               

                 

         

             

                   

                  

                   

             

                       

                   

                    

                   

               

           

       

           

   

 

25. Around 30­40 people have walked into my

stores since the passage of Proposition 8 and

expressed their displeasure about my support of

Proposition 8.

26. Because of my concerns about product

tampering in light of my support of Proposition 8, I

have been forced to install an additional sixteen

security cameras in my stores to protect the integrity

and safety of our products.

27. These experiences will hinder me from

donating to a cause similar to Proposition 8 in the

future. I feel very strongly about the issue of samesex marriage, but in the future I would support a

measure like Proposition 8 more discretely and

would not donate like this again. I feel it is very

unfair that I could not make my donation a personal

matter only and leave the name of my business out.

As a result of my personal donation, my stores and

my employees have been subject to harassment, and

I feel this is not right.

I DECLARE UNDER PENALTY OF PERJURY

THAT THE FOREGOING IS TRUE AND CORRECT. 

Executed on: __________ ________________________

REDACTED 

­ 11a ­
     

   

      

 

               

             

               

               

   

       

     

     

     

       

               

         

      

     

     

       

       

       

               

               

 

   

 

   

    

APPENDIX 3
 

John Doe #3
 

James Bopp, Jr. (Ind. State Bar No. 2838­84)*

Barry A. Bostrom (Ind. State Bar No. 11912­84)*

Sarah E. Troupis (Wis. State Bar No. 1061515)*

Scott F. Bieniek (Ill. State Bar No. 6295901)*

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, Indiana 47807­3510

Telephone: (812) 232­2434

Facsimile: (812) 235­3685

Counsel for All Plaintiffs

Timothy D. Chandler (Cal. State Bar No. 234325)**

ALLIANCE DEFENSE FUND

101 Parkshore Drive, Suite 100

Folsom, California 95630

Telephone: (916) 932­2850

Facsimile: (916) 932­2851

Counsel for All Plaintiffs

* Pro Hac Vice Application Pending

** Designated Counsel for Service

United States District Court
 

Eastern District of California
 

Case No. 2:09­CV­00058­

ProtectMarriage.com, MCE­DAD

et al.,

DECLARATION OF

­ 12a ­
     

         

 

   

 

       

 

         

    

     

   

 

   

   

   

       

           

                       

                   

               

                 

     

                     

           

                 

           

                 

                     

             

               

     

               

                     

Plaintiffs,

OF PLAINTIFFS’ MOTION

v. FOR PRELIMINARY

INJUNCTION

Debra Bowen, et al.,

Date: TBD

Defendants. Time: TBD

Judge England

REDACTED IN SUPPORT N SUPPORT N SUPPORT

I, REDACTED, make the following declaration

pursuant to 28 U.S.C. § 1746:

1. I am a resident of the state of California over 18

years of age, and my statements herein are based on

personal knowledge.

2. I supported the passage of Proposition 8.

3. I am the pastor REDACTED of Lutheran Church

in REDACTED, California.

4. Prior to the passage of Proposition 8, I stated to

my congregation that the Bible supports marriage

between one man and one woman, and that the

members of my congregation should vote accordingly.

5. Prior to the passage of Proposition 8, an

unknown person placed a “Yes on 8” yard sign on the

church property, which remained standing on the

property until

X

sometime on November X , 2008 or

November , 2008.

6. Sometime between 10:00 p.m.

X

on November X ,

2008 and 8:00 a.m. on November , 2008, the “Yes on

­ 13a ­
     

                   

                   

                    

                   

                    

             

                     

     

           

               

                 

                 

           

       

           

       

 

8” yard sign that had been placed on the church

property and a heavy object, such as a rock, were

used to break a large window of our church building.

Pictures of the broken window and the “Yes on 8”

sign are attached as Exhibit A. These pictures are a

true and accurate representation of the broken

window and “Yes on 8” sign as I discovered them on

November X, 2008.

7. Our denominational newspaper of the Lutheran

Church, Missouri Synod, published a story about the

incident, which is attached as Exhibit B. This

account of the events is a true and accurate

representation of the events that occurred.

I DECLARE UNDER PENALTY OF PERJURY

THAT THE FOREGOING IS TRUE AND CORRECT. 

Executed on: __________ ________________

REDACTED 

­ 14a ­
     

   

 

 

                                     

  

             

         

             

  

           

           

           

             

         

           

                 

                 

               

             

                 

       

                 

             

                 

                   

               

               

     

               

APPENDIX 4
 

Radical Gay Activists Seek to Intimidate Christians

Since Nov. 4, Christians have reported increased

incidences of church vandalism and sometimesviolent attacks for their support of traditional

marriage.

[11.19.08] The Nov. 4 passage of constitutional

amendments banning gay marriage in California,

Arizona and Florida has evoked a sometimes­violent

response from radical gay activists who have

vandalized churches, mobbed intercessors and

disrupted a worship service in Michigan.

Intercessors with a house of prayer in San Francisco

said they feared they might be killed Friday night

during a routine prayer walk through the area’s

Castro district, which has a large gay community.

They said a crowd who thought they were marriage

amendment demonstrators shouted lewd remarks,

pushed them, threw hot coffee on their faces and

threatened the prayer group leader with death. (See

related video.)

One man reportedly hit an intercessor on the head

with her Bible before shoving her to the ground and

kicking her. Before police arrived, another house of

prayer member said someone repeatedly tried to pull

his pants down.

“We hadn’t preached, we hadn’t evangelized,” one of

­ 15a ­
     

           

                   

   

               

                 

                

                 

             

                 

             

                 

                 

                 

                   

                 

               

               

               

               

               

      

             

                   

           

                 

         

               

    

the intercessors said after the incident. “We

worshipped God in peace, and we were about to die

for it.”

Police eventually escorted the group to their van,

telling the intercessors they had to leave if they

wanted to make it out, one witness said.

“These are the nicest kids,” said TheCall founder Lou

Engle, who knows many of the young intercessors

involved in the incident. “That night they were doing

only worship. They weren’t trying to aggravate

anything.”

“I think what’s happening is an exposure of what’s

really there and an underbelly of this [radical gay]

movement,” Engle added. “I think the church has to

really reveal what’s going on there so the nation gets

a clue about what they’re making an alliance with.”

In Michigan, where voters in 2004 approved an

amendment defining marriage as the union of one

man and one woman, a Chicago­based gay rights

organization called Bash Back interrupted a Nov. 9

service at an Assemblies of God congregation in

Lansing. (See related video.)

After staging a demonstration outside Mount Hope

Church to draw most of the security staff away from

the worship service, protestors masked as

congregants stood up in the middle of the service,

"declared themselves fags and began screaming

loudly,” Bash Back leaders said in a statement

posted online.

­ 16a ­
     

               

                 

                   

                       

                     

                 

   

               

                 

         

       

               

                  

                 

               

           

                   

                  

               

           

             

                   

                 

           

         

               

                 

               

           

The protestors pulled the fire alarm and threw

thousands of fliers into the congregation, while a gay

couple rushed to the front and began kissing in front

of the pastor. "Let it be known: So long as bigots kill

us in the streets, this pack of wolves will continue to

BASH BACK!" the group said in a statement about

the incident.

Bash Back leaders said Mount Hope was targeted

because it is “complicit in the repression of queers”

by working to “institutionalize transphobia and

homophobia” through “repulsive” ex­gay conferences

and hell house plays, “which depict queers, trannies

and womyn [sic] who seek abortions as the horrors.”

In a statement posted on Mount Hope’s Web site,

church leaders said they don’t “attempt to identify

the church as anti­homosexual, anti­choice, or right

wing” but do “take the Bible at face value and

believes what the Bible says to be the truth."

Mount Hope spokesman David J. Williams Jr., said

the sheriff’s department had launched an

investigation into the incident. “We’re really asking

for prayer for the people that did this,” Williams said.

“They need Jesus; they need to know His love.”

Attorney John Stemberger, who chaired Florida’s

marriage amendment campaign, said many gay

protestors want to intimidate the public into silence.

“Their goal is to create an intense climate of

intimidation and hostility within the culture to try

and deter people from supporting traditional

­ 17a ­
     

             

               

     

             

             

                 

                   

             

                   

             

          

           

           

           

                 

               

             

             

         

              

             

               

                 

                 

       

           

   

                    

                   

                   

marriage and other pro­family initiatives in the

future,” Stemberger said. “We will not be bullied into

silence, indifference or inaction.”

In Palm Springs, Calif., a 69­year­old woman

planned to file charges against protesters who

reportedly pushed the woman and spit on her during

a Nov. 8 rally opposing the passage of Proposition 8,

which amends the state constitution to define

marriage as the union of one man and one woman.

Phyllis Burgess said authorities convinced her to

press charges against the attackers.

Nationwide, gay rights advocates protested marriage

bans on Saturday, pointing particularly to

California’s Proposition 8, which defined marriage as

between one man and one woman and overturned a

state Supreme Court ruling that had legalized gay

marriage. Many of the demonstrations were peaceful,

according to Associated Press (AP) reports, with

participants waving rainbow­colored flags and

holding signs saying “Don’t Spread the H8.”

But pastors across the country, particularly in

California, say incidents of vandalism and theft have

increased since Nov. 4. One California pastor said a

minister in his state received death threats for his

support of Proposition 8.

According to reports from California’s Protect

Marriage campaign:

. At Messiah Lutheran Church in Downey, Calif., a

“Yes on 8” sign was wrapped around a heavy object

and used to smash the window of the pastor’s office.

­ 18a ­
     

                      

                 

             

                

               

           

                  

                 

           

               

               

                      

          

                      

               

             

         

             

             

      

                      

                 

                 

                 

     

             

                   

. Several “Yes on 8” yard signs were stolen from

Calvary Chapel Ventura, as well as a large banner

displaying the church’s name and service times.

. Park Community Church in Shingle Springs,

Calif., received harassing phone calls and has been

threatened with lawsuits by Proposition 8 opponents.

. Bloggers targeted Yorba Linda, Calif., pastor Jim

Domen, who is open about his past struggle with

same­sex attraction, and his girlfriend for

harassment after seeing the couple’s photo in news

reports about the passage of Proposition 8.

. The words “No on 8” were spray­painted on a

Mormon church in Orangevale, Calif.

. A brick was thrown through the window of Family

Fellowship Church in Hayward, Calif., and at Trinity

Baptist Church in Arcata, Proposition 8 opponents

vandalized the church’s marquee, which encouraged

support for the marriage amendment; stole the

church’s flags; and committed other acts of

vandalism totaling $1,500.

. Eggs thrown on the building of San Luis Obispo

Assembly of God and toilet paper was strewn across

the property, while a Mormon church in the same

city had adhesive poured onto a doormat, a keypad

and a window.

The Mormon Church, headquartered in Salt Lake

City, Utah, has also become a target of gay rights

­ 19a ­
     

               

             

             

            

                 

                   

               

             

               

             

               

  

               

             

             

           

                 

             

               

             

             

               

         

             

               

           

                     

             

               

                 

               

activists because it provided major funding to the

Proposition 8 campaign and encouraged its members

to support the marriage amendment, which passed

with 52 percent of the vote.

Some gay rights advocates have called for a boycott

of the state of Utah, and Bash Back leaders admitted

to vandalizing Mormon churches there, as well as in

Washington state and California. A Mormon temple

in Salt Lake City reported receiving a letter

containing a white, powdery substance that forced

the facility to close while police launched an

investigation.

"The hypocrisy, hatred, and intolerance shown by the

gay rights movement isn't pretty,” said Randy

Thomasson, president of the Campaign for Children

and Families, a leading California­based pro­family

group. “While claiming to be against hate and for

tolerance and choice, the homosexual activists are

revealing their hatred of voters and religion and

showing their intolerance of people's personal choices

to support man­woman marriage. By attacking the

people's vote to protect marriage in the state

constitution, homosexual activists have declared war

on our republic and our democratic system."

Christian leaders say the backlash is likely to

continue and may worsen. “It’s actually desperation

time for us all across the nation to be praying,” Engle

said. “They’re calling [Christians] haters when all

they’re doing is simply saying there’s a higher

authority. It’s a raging against Christ and His loving,

foundational laws. It is becoming an anti­Christ rage.

­ 20a ­
     

                     

             

                   

               

                 

               

They are creating a Jesus of their own mind, a Jesus

who lets everybody do whatever they want.

“I think the church has to be prepared [for religious

persecution],” he added. “Our allegiance is to God

and His Word, and if that means imprisonment and

martyrdom, so be it.” ­­ Adrienne S. Gaines

­ 21a ­
     

   

 

                   

 

                                 

                                 

   

     

               

       

               

           

                   

             

                     

             

       

             

                     

                   

                 

                 

     

               

                 

               

   

                   

                 

               

     

APPENDIX 5
 

VANDALS SPRAY PAINT SIGNS IN DOWNTOWN

FULLERTON

IF CAUGHT, VIOLATORS COULD FACE UP TO

ONE YEAR IN PRISON, $10,000 FINE.

By BARBARA GIASONE

THE ORANGE COUNTY REGISTER

FULLERTON – Vandals used gold spray paint to

scrawl anti­Proposition 8 messages on commercial

and residential buildings in the downtown and east

Fullerton over the weekend, police said.

The "Prop H8TE" message was found on the Bank of

America and Union Bank on north Harbor

Boulevard, and on a retail store in the 500 block of

north Harbor. Additional tagging was found on

houses near Dorothy Lane.

Sgt. Mike MacDonald said anyone caught causing

more than $400 in damages is subject to one year in

state prison or county jail – and $10,000 in fines.

Suspects who are caught causing less than $400 in

damages could be charged $1,000 and spend one year

in county jail.

In addition to the spray­paint vandalism, 500 "Yes on

8" signs valued at $10 apiece were reported missing

throughout the city by a Yes on 8 community

organizer, MacDonald said.

At least one resident in the city is using a nightvision camera to catch sign vandals, police said. The

homeowner told police he captured images of a

woman stealing signs.

­ 22a ­
     

                 

               

           

                 

                 

       

                 

               

         

                       

           

                 

                 

                 

           

               

   

"While we respect people's rights to have an opinion

on state politics, it's never appropriate to deface

property to further their own beliefs," MacDonald

said. "We treat this type of crime very seriously.

"Violators will be prosecuted to the fullest extent of

the law," he said.

A resident in the northeast section of the city

reported late Monday morning that his property was

also defaced with gold paint.

"I've lived in the city for 18 years, and I've never had

anything like this," Randy Reece said.

"It's ironic the purveyors of tolerance seem to not

have any respect for the First Amendment and it's

disgusting," Reece said. "I'd like to have a discussion

with them if they want to."

Vandalism should be reported to the Fullerton Police

Department at 714­738­6715.

­ 23a ­
     

   

     

          

                                   

 

        

         

               

               

             

               

    

               

               

               

       

                     

                 

             

    

               

               

         

APPENDIX 6
 

Jun. 07, 2006

Copyright © Las Vegas Review­Journal

TAX AND SPENDING CONTROL: Backers: Foes get

physical

Supporters sue, allege intimidation

Swarming around signature­gatherers. Yelling and

grabbing clipboards. Pouring a can of soda on a

petition.

Such are the intimidating tactics circulators of the

Tax and Spending Control ballot initiative petition

allege are being used against them by a unionbacked group.

On Tuesday, TASC's backers filed a lawsuit against

Nevadans for Nevada, the group they allege has

overstepped legal bounds to block the petition from

getting on the ballot.

"The tactics of the blockers are a clear violation of the

law," TASC's executive director, Bob Adney, said at a

news conference Tuesday. "They're trying to silence

people's voices."

He said the blockers' tactics might prevent TASC

from getting the 83,156 valid voter signatures needed

to get on the ballot.

­ 24a ­
     

           

      

                   

               

               

               

            

               

               

               

               

             

    

     

               

                 

             

                 

           

                   

               

             

          

             

           

Nevadans for Nevada Chairman Danny Thompson

denied the allegations.

"We are not harassing them," he said. "All we are

doing is exercising our First Amendment rights, just

like they are. We don't use physical tactics."

Thompson said the petitioners were failing in their

signature­gathering and seeking someone to blame.

"If they were successful in getting signatures, they

wouldn't be suing our organization for exercising our

rights," said Thompson, who also heads the state

AFL­CIO.

The TASC initiative aims to amend the Nevada

Constitution to limit the government's ability to

spend money.

Its signature­gatherers, posted outside Department

of Motor Vehicles offices, grocery stores and other

high­traffic spots in the valley, have been the target

of a first­of­its­kind effort in Nevada. The petitionblocking group has deployed its own workers at the

same locations to hand out leaflets encouraging

people to "Read the Fine Print and Decline to Sign!"

TASC's backers, in their lawsuit, allege that the

petition­blockers, who they call "hired thugs," did

more than hand out leaflets.

The lawsuit accuses the blockers of "illegally

impeding and preventing" signatures from being

­ 25a ­
     

           

       

               

         

           

                 

                 

           

             

     

                 

           

           

                     

                

                   

         

               

             

                   

           

        

                 

     

                 

                 

   

gathered "by intimidation, threats, coercion, violence,

restraint, and/or undue influence."

As someone was signing the TASC petition, the

lawsuit alleges, blockers approached TASC

signature­gatherer Nichole Dickens and put their

own papers on top of her clipboard. The blockers

stood very close to the signer, talking loudly over

Dickens, "thus confusing and intimidating the

potential signer," who responded by walking away,

the lawsuit alleges.

The lawsuit said such actions are illegal under a

Nevada statute that prohibits "intimidation of

voters" and that specifically mentions petitions.

"Whether or not we make it (onto the ballot) is not

the issue," TASC's attorney, Joel Hansen, said. "The

issue is, can petitioners gather in peace, or do they

have to be intimidated and harassed?"

The lawsuit seeks a restraining order against the

petition­blockers and a six­week extension of the

June 20 petition deadline for TASC to make up for

the time the lawsuit said the signature­gathering

effort has been impeded.

It is scheduled for a Thursday hearing in Clark

County District Court.

TASC also filed a complaint with the secretary of

state's office calling for criminal charges to be filed

against the petition­blockers.

­ 26a ­
     

                 

                 

           

             

           

         

                   

                 

               

               

           

           

           

                 

           

                   

                   

                   

             

   

             

             

                 

     

             

             

           

  

The case echoes another case in which Hansen was

involved. Two years ago, Hansen was the lawyer for

Nevadans for Sound Government, which sued

government entities including the DMV and the

University of Nevada for preventing petitioners from

gathering signatures on public property.

A judge ruled in the group's favor and gave an

extension to the petitions, which aimed to repeal the

2003 tax increase and prohibit public workers from

serving in the Legislature. But the two initiatives

still did not make the ballot.

"This time it's not government interference, it's

government employees' unions," Hansen said. "They

are only going after our petition because they don't

want this petition (TASC) to succeed."

Adney said: "Now we know the lengths to which the

politically privileged will go to try to stop this. It

scares them to death. All these unions have a vested

interest in growing government, raising taxes and

increasing spending."

Adney said the blockers' efforts had caused

petitioners to become discouraged and gather fewer

signatures or quit, meaning TASC had to spend more

money on its signature­gathering.

Thompson said the accusations against Nevadans for

Nevada, a coalition that includes several unions

including teachers, police and firefighters, were

implausible.

­ 27a ­
     

               

               

               

               

               

           

  

             

               

               

                  

             

               

               

     

                 

   

               

               

         

He said the group's workers were trained according

to a strict set of guidelines that prohibit intimidation.

According to a memorandum provided by the group,

the petition "educators" are specifically told not to

block anyone's path, follow people or vehicles or

"engage in harassing, threatening or abusive

conduct."

The memo said, "Communications that are respectful

will be more effective in carrying the message."

Thompson said his workers' only objective was to

give people the facts before they signed the petition.

The union, which previously filed a lawsuit

challenging the way TASC is explained on petitions,

contends the fine print of the lengthy proposed

constitutional amendment contains hidden

provisions that people would not like if they knew

about them.

"This is an important public policy issue," Thompson

said. "Somebody should be saying, 'Hey, take a look

at this before you sign.'"

­ 28a ­
     

   

     

          

                        

                                    

               

                   

             

       

                         

             

               

     

             

                 

             

  

               

           

           

               

           

             

               

               

               

APPENDIX 7
 

Jun. 09, 2006

Copyright © Las Vegas Review­Journal

Judge chides ballot groups

Petition backers, foes agree to rules

A group of petition circulators and their opponents

agreed to abide by a set of ground rules Thursday

after a judge lectured them about First Amendment

rights and common courtesy.

"What we have to do is we all have to get along, and

we cannot have people harassing each other,"

District Judge Sally Loehrer told the parties during

an afternoon hearing.

The matter came before Loehrer after the Committee

for Tax and Spending Control filed a lawsuit Tuesday

against a union­backed group called Nevadans for

Nevada.

TASC, which is gathering signatures for a ballot

question designed to limit government spending,

alleged the opposing group had used intimidating

tactics to deter voters from signing its petition.

Petition circulators have been working outside

Department of Motor Vehicles offices, grocery stores

and other high­traffic spots in the valley, and

Nevadans for Nevada has deployed its own workers

at the same locations to hand out leaflets

­ 29a ­
     

               

     

             

         

               

      

                 

         

               

                     

         

                 

         

               

         

                 

         

                   

   

                 

             

                 

             

             

encouraging people to "Read the Fine Print and

Decline to Sign!”

TASC's lawsuit sought a restraining order against

the petition­blocking group, which denied engaging

in harassment, and a six­week extension of the June

20 petition deadline.

TASC needs 83,156 valid voter signatures to get its

question on the November ballot.

Loehrer refused to grant the extension request and

said TASC had waited too long to bring the matter to

court.

During Thursday's hearing, representatives of both

groups agreed to abide by the following rules, which

Loehrer incorporated into a court order:

• Neither the petition circulators nor their opponents

may yell or use bullhorns.

• No representative of either group may touch the

opposing group's supplies or agents.

• Neither group may have more than four workers at

any location.

• No more than two representatives of either group

may approach a voter at one time.

• If representatives of one group approach a voter

first, representatives of the other group must remain

at arm's length and not interrupt their conversation.

­ 30a ­
     

               

               

       

         

             

   

           

                 

               

                 

                 

             

                    

               

               

       

     

               

               

                         

             

               

                   

           

"Common courtesy says that when one person is

speaking to another, another doesn't come up and

butt in," Loehrer said.

Attorney Richard McCracken, who represents

Nevadans for Nevada, initially opposed the so­called

"first­in­time, first­in­right" rule.

"There's no constitutional requirement that one party

stay silent because the other is speaking," the lawyer

said.

He said the petition opponents need to approach

voters before they sign their names, but Loehrer said

the opponents can provide the voters with a form

authorizing the removal of their signatures and

deliver it to the Clark County clerk's office for them.

Gary Peck, executive director of the American Civil

Liberties Union of Nevada, observed the hearing and

said a court­ordered "first­in­time, first­in­right" rule

would have been unconstitutional.

"The First Amendment doesn't say you're free to

speak your mind unless you're being rude," Peck

said.

But he said the parties can agree to play by a set of

rules, as they did at Thursday's hearing.

Bob Adney, TASC's executive director, said that he

thinks the new rules will allow his group to gather

the necessary signatures by the deadline.

­ 31a ­