FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KRISTIN M. PERRY; SANDRA B. 

STIER; PAUL T. KATAMI; JEFFREY J.

ZARRILLO,

Plaintiffs-Appellees,

and

CITY AND COUNTY OF SAN

FRANCISCO,

Plaintiff-intervenor,

v.

ARNOLD SCHWARZENEGGER, in his

official capacity as Governor of

California; EDMUND G. BROWN, JR.,

in his official capacity as Attorney

General of California; MARK B.

HORTON in his official capacity as 

Director of the California

Department of Public Health &

State Registrar of Vital Statistics;

LINETTE SCOTT, in her official

capacity as Deputy Director of

Health Information & Strategic

Planning for the California

Department of Public Health;

PATRICK O’CONNELL, in his official

capacity as Clerk-Recorder for the

County of Alameda; DEAN C.

LOGAN, in his official capacity as

Registrar-Recorder/County Clerk

for the County of Los Angeles,

Defendants, 

573
and 

DENNIS HOLLINGSWORTH; GAIL J.

No. 09-17241 KNIGHT; MARTIN F. GUTIERREZ;

HAK-SHING WILLIAM TAM; MARK D.C. No. 

A. JANSSON; PROTECTMARRIAGE. 3:09-cv-02292-

COM-YES ON 8, A PROJECT OF VRW

CALIFORNIA RENEWAL,

Defendant-intervenors-Appellants. 

KRISTIN M. PERRY; SANDRA B. 

STIER; PAUL T. KATAMI; JEFFREY J.

ZARRILLO,

Plaintiffs-Appellees,

and

OUR FAMILY COALITION; LAVENDER

SENIORS OF THE EAST BAY;

PARENTS, FAMILIES, AND FRIENDS OF

LESBIANS AND GAYS, CITY AND

COUNTY OF SAN FRANCISCO, 

Plaintiff-intervenors-Appellees,

v.

ARNOLD SCHWARZENEGGER; EDMUND

G. BROWN, JR.; MARK B. HORTON;

LINETTE SCOTT; PATRICK

O’CONNELL; DEAN C. LOGAN,

Defendants,

and 

574 PERRY v. SCHWARZENEGGER
DENNIS HOLLINGSWORTH; GAIL J.  No. 09-17551

KNIGHT; MARTIN F. GUTIERREZ; D.C. No.

HAK-SHING WILLIAM TAM; MARK 3:09-cv-02292-

A. JANSSON; PROTECTMARRIAGE. VRW

COM-YES ON 8, A PROJECT OF

CALIFORNIA RENEWAL, ORDER

Defendant-intervenors-Appellants. AMENDING  OPINION AND

DENYING

PETITION FOR

REHEARING AND

REHEARING EN

BANC AND

AMENDED

OPINION 

Appeal from the United States District Court

for the Northern District of California

Vaughn R. Walker, Chief District Judge, Presiding

Argued and Submitted

December 1, 2009—Pasadena, California

Filed December 11, 2009

Amended January 4, 2010

Before: Kim McLane Wardlaw, Raymond C. Fisher and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge Fisher

PERRY v. SCHWARZENEGGER 575
COUNSEL

Andrew P. Pugno, Law Offices of Andrew P. Pugno, Folsom,

California; Brian W. Raum and James A. Campbell, Alliance

Defense Fund, Scottsdale, Arizona; Charles J. Cooper

(argued), David H. Thompson, Howard C. Nielson, Jr., Nicole

J. Moss, Jesse Panuccio and Peter A. Patterson, Cooper and

Kirk, PLLC, Washington, D.C., for the defendant-intervenorsappellants.

Theodore J. Boutrous, Jr. (argued), Rebecca Justice Lazarus,

Enrique A. Monagas, Gibson, Dunn & Crutcher LLP, Los

Angeles, California; Theodore B. Olson, Matthew D. McGill

and Amir C. Tayrani, Gibson, Dunn & Crutcher LLP, Washington, D.C., for the plaintiffs-appellees. 

Stephen V. Bomse, Orrick, Herrington & Sutcliffe LLP, San

Francisco, California, Allan L. Schlosser and Elizabeth O.

Gill, ACLU Foundation of Northern California, for amicus

curiae American Civil Liberties Union of Northern California.

Robert H. Tyler and Jennifer Lynn Monk, Advocates for Faith

and Freedom, Murrieta, California, for amici curiae Schubert

Flint Public Affairs, Inc., Frank Schubert and Jeff Flint.

ORDER

The opinion filed December 11, 2009 is amended, and the

amended opinion is filed concurrently with this Order. 

The panel has voted to deny the petition for rehearing and

rehearing en banc.

A judge requested a vote on whether to rehear the matter

en banc, and the matter failed to receive a majority of the

votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35.

PERRY v. SCHWARZENEGGER 579
Appellees’ petition for rehearing and rehearing en banc,

filed December 24, 2009, is DENIED.

No further petitions for rehearing will be permitted.

IT IS SO ORDERED. 

OPINION

FISHER, Circuit Judge:

Proposition 8 amended the California Constitution to provide that only marriage between a man and a woman is valid

or recognized in California. Two same-sex couples filed this

action in the district court alleging that Proposition 8 violates

the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The official proponents of Proposition 8

(“Proponents”) intervened to defend the suit. Plaintiffs served

a request for production of documents on Proponents, seeking, among other things, production of Proponents’ internal

campaign communications relating to campaign strategy and

advertising. Proponents objected to disclosure of the documents as barred by the First Amendment. In two orders, the

district court rejected Proponents’ claim of First Amendment

privilege. Proponents appealed both orders and, in the alternative, petitioned for a writ of mandamus directing the district

court to grant a protective order. We granted Proponents’

motion for stay pending appeal. 

We hold that the exceptional circumstances presented by

this case warrant issuance of a writ of mandamus. The freedom to associate with others for the common advancement of

political beliefs and ideas lies at the heart of the First Amendment. Where, as here, discovery would have the practical

effect of discouraging the exercise of First Amendment associational rights, the party seeking such discovery must dem580 PERRY v. SCHWARZENEGGER
onstrate a need for the information sufficient to outweigh the

impact on those rights. Plaintiffs have not on the existing

record carried that burden in this case. We therefore grant

Proponents’ petition and direct the district court to enter an

appropriate protective order consistent with this opinion.

I. BACKGROUND

In November 2008, California voters approved Proposition

8, an initiative measure providing that “[o]nly marriage

between a man and a woman is valid or recognized in California.” Cal. Const. art. I, § 7.5. The California Supreme Court

has upheld Proposition 8 against several state constitutional

challenges. Strauss v. Horton, 207 P.3d 48, 63-64 (Cal. 2009).

Plaintiffs, two same-sex couples prohibited from marrying,

filed this 42 U.S.C. § 1983 action alleging “that Prop. 8,

which denies gay and lesbian individuals the right to marry

civilly and enter into the same officially sanctioned family

relationship with their loved ones as heterosexual individuals,

is unconstitutional under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United

States Constitution.” Compl. ¶¶ 5, 7. They alleged among

other things that “[t]he disadvantage Prop. 8 imposes on gays

and lesbians is the result of disapproval or animus against a

politically unpopular group.” Id. ¶ 43. Defendants are a number of state officials responsible for the enforcement of Proposition 8, including the Governor and the Attorney General. Id.

¶¶ 13-19. Plaintiffs seek declaratory and injunctive relief. Id.

¶ 8.

After the Attorney General declined to defend the constitutionality of Proposition 8, the district court granted a motion

by Proponents — the official proponents of Proposition 8 and

the official Proposition 8 campaign committee — to intervene

as defendants.

Plaintiffs served requests for production of documents on

Proponents under Federal Rule of Civil Procedure 34. Plaintiffs’ eighth request sought:

PERRY v. SCHWARZENEGGER 581
All versions of any documents that constitute communications referring to Proposition 8, between you

and any third party, including, without limitation,

members of the public or the media.

The parties understand this request as encompassing, among

other things, Proponents’ internal campaign communications

concerning strategy and messaging.

Proponents objected to the request as irrelevant, privileged

under the First Amendment and unduly burdensome and filed

a motion for a protective order. They argued that their internal

campaign communications, including draft versions of communications never actually disseminated to the electorate at

large, were privileged under the First Amendment. They

offered evidence that the disclosure of internal strategy documents would burden political association rights by discouraging individuals from participating in initiative campaigns and

by muting the exchange of ideas within those campaigns.

They asserted that the documents plaintiffs sought were irrelevant to the issues in this case, and even if they were relevant,

the First Amendment interests at stake outweighed plaintiffs’

need for the information.

Plaintiffs opposed the motion for protective order. They

argued that their request was reasonably calculated to lead to

the discovery of admissible evidence concerning the purpose

of Proposition 8, as well as evidence concerning the rationality and strength of Proponents’ purported state interests for

Proposition 8. They disputed Proponents’ contention that any

of the documents requested were privileged other than with

respect to the names of rank-and-file members of the campaign, which they agreed to redact.

In an October 1, 2009 order, the district court granted in

part and denied in part Proponents’ motion for a protective

order. The court denied Proponents’ claims of privilege.1 The

1The district court also observed that Proponents had failed to produce

a privilege log required by Federal Rule of Civil Procedure

582 PERRY v. SCHWARZENEGGER
court also determined that plaintiffs’ request was “reasonably

calculated to lead to the discovery of admissible evidence”

regarding voter intent, the purpose of Proposition 8 and

whether Proposition 8 advances a legitimate governmental

interest. The court said that “communications between proponents and political consultants or campaign managers, even

about messages contemplated but not actually disseminated,

could fairly readily lead to admissible evidence illuminating

the messages disseminated to voters.”

2

Following the court’s October 1 order, Proponents submitted a sample of documents potentially responsive to plaintiffs’

document request for in camera review, asserting that the

documents were both irrelevant and privileged. In a November 11, 2009 order following that review, the district court

again rejected Proponents’ argument that their internal campaign communications were privileged under the First

Amendment:

Proponents have not . . . identified any way in which

the . . . privilege could protect the disclosure of campaign communications or the identities of high rank26(b)(5)(A)(ii). We agree that some form of a privilege log is required and

reject Proponents’ contention that producing any privilege log would

impose an unconstitutional burden. 

2The court indicated that plaintiffs’ request was 

appropriate to the extent it calls for (1) communications by and

among proponents and their agents (at a minimum, Schubert Flint

Public Affairs) concerning campaign strategy and (2) communications by and among proponents and their agents concerning

messages to be conveyed to voters, . . . without regard to whether

the messages were actually disseminated or merely contemplated.

In addition, communications by and among proponents with

those who assumed a directorial or managerial role in the Prop

8 campaign, like political consultants or ProtectMarriage.com’s

treasurer and executive committee, among others, would appear

likely to lead to discovery of admissible evidence. 

PERRY v. SCHWARZENEGGER 583
ing members of the campaign. . . . If the . . . privilege

identified by proponents protects anything, it is the

identities of rank-and-file volunteers and similarly

situated individuals.

Applying the usual discovery standards of Federal Rule of

Civil Procedure 26, the court determined that documents falling into the following categories were reasonably likely to

lead to the discovery of admissible evidence: documents relating to “messages or themes conveyed to voters through advertising or direct messaging,” documents dealing “directly with

advertising or messaging strategy and themes” and documents

discussing voters’ “potential reactions” to campaign messages. The court ordered production of 21 of the 60 documents submitted for review.

Proponents appealed from the October 1 and November 11

orders and, in the alternative, petitioned for a writ of mandamus. We granted Proponents’ motion for a stay pending

appeal. We now grant the petition for a writ of mandamus.

II. JURISDICTION

Proponents contend that we have jurisdiction on two bases.

First, they assert that the district court’s orders are appealable

under the collateral order doctrine. Second, they have petitioned for issuance of a writ of mandamus.

While this appeal was pending, the Supreme Court decided

Mohawk Industries, Inc. v. Carpenter, 558 U.S. ___ (Dec. 8,

2009), holding that discovery orders denying claims of

attorney-client privilege are not appealable under the collateral order doctrine. After Mohawk, it is uncertain whether the

collateral order doctrine applies to discovery orders denying

claims of First Amendment privilege, as we shall explain.

Ultimately, we do not resolve the question here. Given the

uncertainty, we have decided instead to rely on mandamus to

review the district court’s rulings. We have repeatedly exer584 PERRY v. SCHWARZENEGGER
cised mandamus review when confronted with extraordinarily

important questions of first impression concerning the scope

of a privilege. As this case falls within that small class of

extraordinary cases, we exercise our supervisory mandamus

authority here.

A. Collateral Order Doctrine

[1] We have jurisdiction to review “final decisions of the

district courts.” 28 U.S.C. § 1291. Under the collateral order

doctrine, a litigant may appeal “from a narrow class of decisions that do not terminate the litigation, but must, in the

interest of ‘achieving a healthy legal system,’ nonetheless be

treated as ‘final.’ ” Digital Equip. Corp. v. Desktop Direct,

Inc., 511 U.S. 863, 867 (1994) (quoting Cobbledick v. United

States, 309 U.S. 323, 326 (1940)). To be immediately appealable, a collateral decision “must conclusively determine the

disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.” Coopers &

Lybrand v. Livesay, 437 U.S. 463, 468 (1978).

[2] The first prong is easily satisfied in this case. Taken

together, the October 1 and November 11 discovery orders

conclusively determined the scope of the First Amendment

privilege. The district court concluded that the privilege does

not extend to internal campaign communications and that it is

limited to the disclosure of identities of rank-and-file members and other similarly situated individuals. Furthermore, in

the November 11 order, the district court conclusively determined that Proponents were required to produce 21 documents that, according to the court, were not privileged. See

United States v. Griffin, 440 F.3d 1138, 1141 (9th Cir. 2006)

(“[T]he district court’s order ‘conclusively determine[s] the

disputed question’ whether the government is entitled to read

the communications between Griffin and his wife for which

the [marital communications] privilege had been claimed.”).

PERRY v. SCHWARZENEGGER 585
[3] The second prong is also satisfied. The overall scope of

the First Amendment privilege is a question of law that is

entirely separate from the merits of the litigation. In theory,

the application of the privilege to plaintiffs’ specific discovery

requests has some overlap with merits-related issues, such as

whether plaintiffs’ substantive claims are governed by strict

scrutiny or rational basis review and whether plaintiffs may

rely on certain types of evidence to prove that Proposition 8

was enacted for an improper purpose. We need not, and do

not, delve into those questions in this appeal, however. We

assume without deciding that the district court’s rulings on

those questions are correct. There is, therefore, no “overlap”

between the issues we must decide in this appeal and the “factual and legal issues of the underlying dispute.” Van Cauwenberghe v. Biard, 486 U.S. 517, 529 (1988).

[4] It is the third prong that poses the most difficult question. Under Mohawk, the third prong turns on whether rulings

on First Amendment privilege are, as a class, effectively

reviewable on appeal from final judgment — i.e., “whether

delaying review until the entry of final judgment ‘would

imperil a substantial public interest’ or ‘some particular value

of a high order.’ ” Mohawk, 558 U.S. at ___, slip op. 6 (quoting Will v. Hallock, 546 U.S. 345, 352-53 (2006)). In

Mohawk, the Court concluded that this prong was not satisfied

with respect to the class of rulings addressing invocation of

the attorney-client privilege during discovery. This was so

because the typical ruling on the attorney-client privilege will

involve only “the routine application of settled legal principles.” Id. at 8. Denying immediate appellate review would

have no “discernible chill” because “deferring review until

final judgment does not meaningfully reduce the ex ante

incentives for full and frank consultations between clients and

counsel.” Id. There being no discernible harm to the public

interest, the remaining harm from an erroneous ruling (the

harm to the individual litigant of having confidential communications disclosed) could be adequately, if imperfectly, remedied by review after final judgment: “Appellate courts can

586 PERRY v. SCHWARZENEGGER
remedy the improper disclosure of privileged material in the

same way they remedy a host of other erroneous evidentiary

rulings: by vacating an adverse judgment and remanding for

a new trial in which the protected material and its fruits are

excluded from evidence.” Id.

Some of Mohawk’s reasoning carries over to the First

Amendment privilege. There are, however, several reasons

the class of rulings involving the First Amendment privilege

differs in ways that matter to a collateral order appeal analysis

from those involving the attorney-client privilege. First, this

case concerns a privilege of constitutional dimensions. The

right at issue here — freedom of political association — is of

a high order. The constitutional nature of the right is not dispositive of the collateral order inquiry, see, e.g., Flanagan v.

United States, 465 U.S. 259, 267-68 (1984), but it factors into

our analysis. Second, the public interest associated with this

class of cases is of greater magnitude than that in Mohawk.

Compelled disclosures concerning protected First Amendment political associations have a profound chilling effect on

the exercise of political rights. See, e.g., Gibson v. Florida

Legislative Investigation Comm., 372 U.S. 539, 557 (1963)

(underscoring the substantial “deterrent and ‘chilling’ effect

on the free exercise of constitutionally enshrined rights of free

speech, expression, and association” resulting from compelled

disclosure of political associations). Third, unlike the

attorney-client privilege, the First Amendment privilege is

rarely invoked. Collateral review of the First Amendment

privilege, therefore, does not implicate significant “institutional costs.” Mohawk, 558 U.S. ___, slip op. at 11. Cf. id.

(“Permitting parties to undertake successive, piecemeal

appeals of all adverse attorney-client rulings would unduly

delay the resolution of district court litigation and needlessly

burden the Courts of Appeals.”). Finally, we observe that

Mohawk expressly reserved whether the collateral order doctrine applies in connection with other privileges. See id. at 12

n.4. 

PERRY v. SCHWARZENEGGER 587
[5] In light of these considerations, whether Mohawk

should be extended to the First Amendment privilege presents

a close question. The distinctions between the First Amendment privilege and the attorney-client privilege — a constitutional basis, a heightened public interest, rarity of invocation

and a long recognized chilling effect — are not insubstantial.

Given our uncertainty about the availability of collateral order

review after Mohawk, we nonetheless assume without deciding that discovery orders denying claims of First Amendment

privilege are not reviewable under the collateral order doctrine. Rather, we rely on mandamus to hear this exceptionally

important case, for reasons we now explain.

B. Mandamus

The exceptional circumstances presented by this case warrant exercising our jurisdiction under the All Writs Act, 28

U.S.C. § 1651(a). See Cheney v. U.S. Dist. Court, 542 U.S.

367, 380 (2004); City of Las Vegas v. Foley, 747 F.2d 1294,

1296-97 (9th Cir. 1984).

[6] “The writ of mandamus is an ‘extraordinary’ remedy

limited to ‘extraordinary’ causes.” Burlington Northern &

Santa Fe Ry. Co. v. U.S. Dist. Court, 408 F.3d 1142, 1146

(9th Cir. 2005) (quoting Cheney, 542 U.S. at 380). In Bauman

v. United States District Court, 557 F.2d 650 (9th Cir. 1977),

we established five guidelines to determine whether mandamus is appropriate in a given case: (1) whether the petitioner

has no other means, such as a direct appeal, to obtain the

desired relief; (2) whether the petitioner will be damaged or

prejudiced in any way not correctable on appeal; (3) whether

the district court’s order is clearly erroneous as a matter of

law; (4) whether the district court’s order is an oft repeated

error or manifests a persistent disregard of the federal rules;

and (5) whether the district court’s order raises new and

important problems or issues of first impression. Id. at 654-

55. “The factors serve as guidelines, a point of departure for

our analysis of the propriety of mandamus relief.” Admiral

588 PERRY v. SCHWARZENEGGER
Ins. Co. v. U.S. Dist. Court, 881 F.2d 1486, 1491 (9th Cir.

1989). “Not every factor need be present at once.” Burlington,

408 F.3d at 1146. “However, the absence of the third factor,

clear error, is dispositive.” Id.

[7] Mandamus is appropriate to review discovery orders

“when particularly important interests are at stake.” 16 C.

Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3935.3 (2d ed. 2009) (hereinafter Wright & Miller).

Although “the courts of appeals cannot afford to become

involved with the daily details of discovery,” we may rely on

mandamus to resolve “new questions that otherwise might

elude appellate review” or “to protect important or clear

claims of privilege.” Id.; see Mohawk, 558 U.S. ___, slip op.

9 (“[L]itigants confronted with a particularly injurious or

novel privilege ruling have several potential avenues of

review apart from collateral order appeal. . . . [A] party may

petition the court of appeals for a writ of mandamus.”). In

Schlagenhauf v. Holder, 379 U.S. 104 (1964), for example,

the Supreme Court relied on mandamus to answer the novel

question whether Federal Rule of Civil Procedure 35 authorized the physical and mental examination of a defendant.

“The opinion affords strong support for the use of supervisory

or advisory mandamus to review a discovery question that

raises a novel and important question of power to compel discovery, or that reflects substantial uncertainty and confusion

in the district courts.” Wright & Miller § 3935.3.

[8] Consistent with Schlagenhauf, we have exercised mandamus jurisdiction to review discovery orders raising particularly important questions of first impression, especially when

called upon to define the scope of an important privilege. In

Admiral Insurance, for example, we granted the mandamus

petition to resolve “a significant issue of first impression concerning the proper scope of the attorney-client privilege.” 881

F.2d at 1488. Taiwan v. United States District Court, 128

F.3d 712 (9th Cir. 1997), likewise involved review of another

issue of first impression — the scope of testimonial immunity

PERRY v. SCHWARZENEGGER 589
under the Taiwan Relations Act. Id. at 714. Finally, in Foley,

we exercised our mandamus authority to address an “important issue of first impression” in a context similar to that here

— whether legislators can be deposed to determine their subjective motives for enacting a law challenged as violative of

the First Amendment. 747 F.2d at 1296.

[9] Here, too, we are asked to address an important issue

of first impression — the scope of the First Amendment privilege against compelled disclosure of internal campaign communications. Considering the Bauman factors, we conclude

that this is an extraordinary case in which mandamus review

is warranted.

Assuming, as we are, that no collateral order appeal is

available, the first factor is present: “A discovery order . . . is

interlocutory and non-appealable” under 28 U.S.C. §§ 1291,

1292(a)(1) and 1292(b). Foley, 747 F.2d at 1297; see also id.

(“Mandamus review has been held to be appropriate for discovery matters which otherwise would be reviewable only on

direct appeal after resolution on the merits.”). In Admiral

Insurance, for example, we held that the first Bauman factor

was satisfied because “the petitioner lacks an alternative avenue for relief.” 881 F.2d at 1488.

The second factor also supports mandamus. A postjudgment appeal would not provide an effective remedy, as

“no such review could prevent the damage that [Proponents]

allege they will suffer or afford effective relief therefrom.” In

re Cement Antitrust Litig., 688 F.2d 1297, 1302 (9th Cir.

1982); see Star Editorial, Inc. v. U.S. Dist. Court, 7 F.3d 856,

859 (9th Cir. 1993) (“[I]f the district court erred in compelling

disclosure, any damage the [newspaper] suffered would not

be correctable on appeal.”); Admiral Ins., 881 F.2d at 1491

(holding that the second factor was satisfied in view of “the

irreparable harm a party likely will suffer if erroneously

required to disclose privileged materials or communications”). One injury to Proponents’ First Amendment rights is

590 PERRY v. SCHWARZENEGGER
the disclosure itself. Regardless of whether they prevail at

trial, this injury will not be remediable on appeal. See In re

Cement Antitrust Litig., 688 F.2d at 1302 (“[A] post-judgment

reversal on appeal could not provide a remedy for those injuries.”). If Proponents prevail at trial, vindication of their rights

will be not merely delayed but also entirely precluded. See id.

(“Moreover, whatever collateral injuries petitioners suffer will

have been incurred even if they prevail fully at trial and thus

have no right to appeal from the final judgment.”).

Under the second factor, we also consider the substantial

costs imposed on the public interest. The district court applied

an unduly narrow conception of First Amendment privilege.

Under that interpretation, associations that support or oppose

initiatives face the risk that they will be compelled to disclose

their internal campaign communications in civil discovery.

This risk applies not only to the official proponents of initiatives and referendums, but also to the myriad social, economic, religious and political organizations that publicly

support or oppose ballot measures. The potential chilling

effect on political participation and debate is therefore substantial, even if the district court’s error were eventually corrected on appeal from final judgment. In this sense, our

concerns in this case mirror those we articulated in Foley,

where the district court denied the city’s motion for a protective order to prevent plaintiffs from deposing city officials

about their reasons for passing a zoning ordinance. Absent

swift appellate review, we explained, “legislators could be

deposed in every case where the governmental interest in a

regulation is challenged.” 747 F.2d at 1296. More concerning

still is the possibility that if Proponents ultimately prevail in

the district court, there would be no appeal at all of the

court’s construction of the First Amendment privilege.

Declining to exercise our mandamus jurisdiction in this case,

therefore, “ ‘would imperil a substantial public interest’ or

‘some particular value of a high order.’ ” Mohawk, 558 U.S.

at ___, slip op. at 6 (quoting Will, 546 U.S. at 352-53).

PERRY v. SCHWARZENEGGER 591
The third factor, clear error, is also met. As discussed

below, we are firmly convinced that the district court erred by

limiting the First Amendment privilege to “the identities of

rank-and-file volunteers and similarly situated individuals”

and affording no greater protection to Proponents’ internal

communications than the generous relevance standard of Federal Rule of Civil Procedure 26. See In re Cement Antitrust

Litig., 688 F.2d at 1306-07 (“[W]hen we are firmly convinced

that a district court has erred in deciding a question of law, we

may hold that the district court’s ruling is ‘clearly erroneous

as a matter of law as that term is used in mandamus analysis.’ ”) (quoting Bauman, 557 F.2d at 660). “[Plaintiffs’] need

for information is only one facet of the problem.” Cheney,

542 U.S. at 385. A political campaign’s communications and

activities “encompass a vastly wider range of sensitive material” protected by the First Amendment than would be true in

the normal discovery context. Id. at 381; see Foley, 747 F.2d

at 1298-99. Thus, “[a]n important factor weighing in the

opposite direction is the burden imposed by the discovery

orders. This is not a routine discovery dispute.” Cheney, 542

U.S. at 385.

Finally, the fifth factor weighs in favor of exercise of our

supervisory mandamus authority: we are faced with the need

to resolve a significant question of first impression. See, e.g.,

Schlagenhauf, 379 U.S. at 110-11 (finding mandamus jurisdiction appropriate where there was an issue of first impression concerning the district court’s application of Federal

Rule of Civil Procedure 35 in a new context); Foley, 747 F.2d

at 1296. As these cases — and the very existence of the fifth

Bauman factor, whether the issue presented is one of first

impression — illustrate, the necessary “clear error” factor

does not require that the issue be one as to which there is

established precedent. Moreover, this novel and important

question may repeatedly evade review because of the collateral nature of the discovery ruling. See In re Cement Antitrust

Litig., 688 F.2d at 1304-05 (“[A]n important question of first

impression will evade review unless it is considered under our

592 PERRY v. SCHWARZENEGGER
supervisory mandamus authority. Moreover, that question

may continue to evade review in other cases as well.”); Colonial Times, Inc. v. Gasch, 509 F.2d 517, 524-26 (D.C. Cir.

1975) (exercising mandamus jurisdiction to correct an error in

a discovery order).

[10] In sum, this is an important case for exercise of our

mandamus jurisdiction: adequate, alternative means of review

are unavailable; the harm to Proponents and to the public

interest is not correctable on appeal; the district court’s discovery order is clearly erroneous; and it presents a significant

issue of first impression that may repeatedly evade review. As

in Foley, a closely analogous case, these factors “remove this

case from the category of ordinary discovery orders where

interlocutory appellate review is unavailable, through mandamus or otherwise.” Cheney, 542 U.S. at 381. Accordingly, we

hold that the exercise of our supervisory mandamus authority

is appropriate.

III. FIRST AMENDMENT PRIVILEGE3

A.

[11] “Effective advocacy of both public and private points

of view, particularly controversial ones, is undeniably

enhanced by group association.” NAACP v. Alabama, 357

U.S. 449, 460 (1958); see also Roberts v. U.S. Jaycees, 468

U.S. 609, 622 (1984) (“An individual’s freedom to speak, to

worship, and to petition the government for the redress of

grievances could not be vigorously protected from interference by the State unless a correlative freedom to engage in

group effort toward those ends were not also guaranteed.”).

Thus, “[t]he First Amendment protects political association as

well as political expression,” Buckley v. Valeo, 424 U.S. 1, 15

(1976), and the “freedom to associate with others for the com3We review de novo a determination of privilege. United States v.

Ruehle, 583 F.3d 600, 606 (9th Cir. 2009) (attorney-client privilege). 

PERRY v. SCHWARZENEGGER 593
mon advancement of political beliefs and ideas is . . . protected by the First and Fourteenth Amendments.” Kusper v.

Pontikes, 414 U.S. 51, 56-57 (1973). “The right to associate

for expressive purposes is not, however, absolute.” Roberts,

468 U.S. at 623. “Infringements on that right may be justified

by regulations adopted to serve compelling state interests,

unrelated to the suppression of ideas, that cannot be achieved

through means significantly less restrictive of associational

freedoms.” Id.

[12] The government may abridge the freedom to associate

directly, or “abridgement of such rights, even though unintended, may inevitably follow from varied forms of governmental action.” NAACP, 357 U.S. at 461. Thus, the

government must justify its actions not only when it imposes

direct limitations on associational rights, but also when governmental action “would have the practical effect ‘of discouraging’ the exercise of constitutionally protected political

rights.” Id. (quoting Am. Commc’ns Ass’n v. Douds, 339 U.S.

382, 393 (1950)). Such actions have a chilling effect on, and

therefore infringe, the exercise of fundamental rights. Accordingly, they “must survive exacting scrutiny.” Buckley, 424

U.S. at 64.

[13] The compelled disclosure of political associations can

have just such a chilling effect. See id. (“[W]e have repeatedly

found that compelled disclosure, in itself, can seriously

infringe on privacy of association and belief guaranteed by

the First Amendment.”); AFL-CIO v. FEC, 333 F.3d 168, 175

(D.C. Cir. 2003) (“The Supreme Court has long recognized

that compelled disclosure of political affiliations and activities

can impose just as substantial a burden on First Amendment

rights as can direct regulation.”).4 Disclosures of political

4

See, e.g., NAACP, 357 U.S. at 461-64 (prohibiting the compelled disclosure of the NAACP membership lists); Bates v. City of Little Rock, 361

U.S. 516, 525-27 (1960) (same); DeGregory v. Attorney Gen., 383 U.S.

825, 828-30 (1966) (prohibiting the state from compelling defendant to

discuss his association with the Communist Party); Buckley, 424 U.S. at

63-74 (recognizing the burden but upholding the compelled disclosure of

campaign contributor information under the “exacting scrutiny” standard).

594 PERRY v. SCHWARZENEGGER
affiliations and activities that have a “deterrent effect on the

exercise of First Amendment rights” are therefore subject to

this same “exacting scrutiny.” Buckley, 424 U.S. at 64-65. A

party who objects to a discovery request as an infringement

of the party’s First Amendment rights is in essence asserting

a First Amendment privilege. See, e.g., Black Panther Party

v. Smith, 661 F.2d 1243, 1264 (D.C. Cir. 1981), cert. granted

and vacated as moot, 458 U.S. 1118 (1982); see also Fed. R.

Civ. P. 26(b)(1) (“Parties may obtain discovery regarding any

nonprivileged matter that is relevant to any party’s claim or

defense[.]”) (emphasis added).5

In this circuit, a claim of First Amendment privilege is subject to a two-part framework. The party asserting the privilege

“must demonstrate . . . a ‘prima facie showing of arguable

first amendment infringement.’ ” Brock v. Local 375, Plumbers Int’l Union of Am., 860 F.2d 346, 349-50 (9th Cir. 1988)

(quoting United States v. Trader’s State Bank, 695 F.2d 1132,

1133 (9th Cir. 1983) (per curiam)). “This prima facie showing

requires appellants to demonstrate that enforcement of the

[discovery requests] will result in (1) harassment, membership

withdrawal, or discouragement of new members, or (2) other

consequences which objectively suggest an impact on, or

‘chilling’ of, the members’ associational rights.” Id. at 350.6

5This privilege applies to discovery orders “even if all of the litigants

are private entities.” Grandbouche v. Clancy, 825 F.2d 1463, 1466 (10th

Cir. 1987); see also Adolph Coors Co. v. Wallace, 570 F. Supp. 202, 208

(N.D. Cal. 1983) (“[A] private litigant is entitled to as much solicitude to

its constitutional guarantees of freedom of associational privacy when

challenged by another private party, as when challenged by a government

body.”) (footnote omitted). 

6A protective order limiting the dissemination of disclosed associational

information may mitigate the chilling effect and could weigh against a

showing of infringement. The mere assurance that private information will

be narrowly rather than broadly disseminated, however, is not dispositive.

See Dole v. Serv. Employees Union, AFL-CIO, Local 280, 950 F.2d 1456,

1461 (9th Cir. 1991) (“[N]either letter suggests that it is the unlimited

nature of the disclosure of the Union minutes that underlies the member’s

unwillingness to attend future meetings. Rather, both letters exhibit a concern for the consequences that would flow from any disclosure of the contents of the minutes to the government or any government official.”). 

PERRY v. SCHWARZENEGGER 595
“If appellants can make the necessary prima facie showing,

the evidentiary burden will then shift to the government . . .

[to] demonstrate that the information sought through the [discovery] is rationally related to a compelling governmental

interest . . . [and] the ‘least restrictive means’ of obtaining the

desired information.” Id.; see also Dole v. Serv. Employees

Union, AFL-CIO, Local 280, 950 F.2d 1456, 1459-61 (9th

Cir. 1991) (same). More specifically, the second step of the

analysis is meant to make discovery that impacts First

Amendment associational rights available only after careful

consideration of the need for such discovery, but not necessarily to preclude it. The question is therefore whether the party

seeking the discovery “has demonstrated an interest in obtaining the disclosures it seeks . . . which is sufficient to justify

the deterrent effect . . . on the free exercise . . . of [the] constitutionally protected right of association.” NAACP, 357 U.S. at

463. 

To implement this standard, we “balance the burdens

imposed on individuals and associations against the significance of the . . . interest in disclosure,” AFL-CIO v. FEC, 333

F.3d at 176, to determine whether the “interest in disclosure

. . . outweighs the harm,” Buckley, 424 U.S. at 72. This balancing may take into account, for example, the importance of

the litigation, see Dole, 950 F.2d at 1461 (“[T]here is little

doubt that the . . . purpose of investigating possible criminal

violations . . . serves a compelling governmental interest[.]”);

the centrality of the information sought to the issues in the

case, see NAACP, 357 U.S. at 464-65; Grandbouche v.

Clancy, 825 F.2d 1463, 1466 (10th Cir. 1987); Black Panther

Party, 661 F.2d at 1268; the existence of less intrusive means

of obtaining the information, see Grandbouche, 825 F.2d at

1466; Black Panther Party, 661 F.2d at 1268; and the substantiality of the First Amendment interests at stake, see Buckley, 424 U.S. at 71 (weighing the seriousness of “the threat to

the exercise of First Amendment rights” against the substantiality of the state’s interest); Black Panther Party, 661 F.2d at

1267 (“The argument in favor of upholding the claim of privi596 PERRY v. SCHWARZENEGGER
lege will ordinarily grow stronger as the danger to rights of

expression and association increases.”).7 Importantly, the

party seeking the discovery must show that the information

sought is highly relevant to the claims or defenses in the litigation — a more demanding standard of relevance than that

under Federal Rule of Civil Procedure 26(b)(1). The request

must also be carefully tailored to avoid unnecessary interference with protected activities, and the information must be

otherwise unavailable.

Before we apply these rules to the discovery at issue on this

appeal, we address the district court’s apparent conclusion

that the First Amendment privilege, as a categorical matter,

does not apply to the disclosure of internal campaign communications.

B.

[14] The district court concluded that “[i]f the . . . privilege

identified by proponents protects anything, it is the identities

of rank-and-file volunteers and similarly situated individuals,”

and said that “Proponents have not . . . identified a way in

which the . . . privilege could protect the disclosure of campaign communications.” The First Amendment privilege,

however, has never been limited to the disclosure of identities

of rank-and-file members. See, e.g., DeGregory, 383 U.S. at

828 (applying the privilege to “the views expressed and ideas

advocated” at political party meetings); Dole, 950 F.2d at

1459 (applying privilege to statements “of a highly sensitive

and political character” made at union membership meetings).

The existence of a prima facie case turns not on the type of

information sought, but on whether disclosure of the information will have a deterrent effect on the exercise of protected

activities. See NAACP, 357 U.S. at 460-61; Brock, 860 F.2d

7Courts generally apply some combination of these factors. See, e.g., In

re Motor Fuel Temperature Sales Practices Litig., 258 F.R.D. 407, 412-15

(D. Kan. 2009); Adolph Coors Co., 570 F. Supp. at 208. 

PERRY v. SCHWARZENEGGER 597
at 349-50. We have little difficulty concluding that disclosure

of internal campaign communications can have such an effect

on the exercise of protected activities. 

[15] First, the disclosure of such information can have a

deterrent effect on participation in campaigns. There is no

question that participation in campaigns is a protected activity. See San Francisco County Democratic Cent. Comm. v.

Eu, 826 F.2d 814, 827 (9th Cir. 1987) (“’[T]he right of individuals to associate for the advancement of political beliefs’

is fundamental.”) (quoting Williams v. Rhodes, 393 U.S. 23,

30 (1968)). Compelled disclosure of internal campaign information can deter that participation. See Buckley, 424 U.S. at

68 (“It is undoubtedly true that public disclosure of contributions to candidates and political parties will deter some individuals who otherwise might contribute.”); In re Motor Fuel

Temperature Sales Practices Litig., 258 F.R.D. 407, 414 (D.

Kan. 2009) (holding that disclosure of “trade associations’

internal communications and evaluations about advocacy of

their members’ positions on contested political issues” might

reasonably “interfere with the core of the associations’ activities by inducing members to withdraw . . . or dissuading others from joining”).8

[16] Second, disclosure of internal campaign information

can have a deterrent effect on the free flow of information

within campaigns. Implicit in the right to associate with others

to advance one’s shared political beliefs is the right to

exchange ideas and formulate strategy and messages, and to

do so in private.9 Compelling disclosure of internal campaign

communications can chill the exercise of these rights.

8

In addition to discouraging individuals from joining campaigns, the

threat that internal campaign communications will be disclosed in civil litigation can discourage organizations from joining the public debate over

an initiative. See Letter brief of Amicus Curiae American Civil Liberties

Union of Northern California, at 2 (explaining that the ACLU’s internal

campaign information has been subpoenaed in this case). 

9We derive this conclusion from cases that have recognized the right of

associations to be free of infringements in their internal affairs. The free598 PERRY v. SCHWARZENEGGER
In identifying two ways in which compelled disclosure of

internal campaign communications can deter protected activities — by chilling participation and by muting the internal

exchange of ideas — we do not suggest this is an exhaustive

list. Disclosures of the sort challenged here could chill protected activities in other ways as well.10 We cite these two

dom of members of a political association to deliberate internally over

strategy and messaging is an incident of associational autonomy. We recognized this right in San Francisco County Democratic Central Committee v. Eu, where we said that “the right of association would be hollow

without a corollary right of self-governance.” 826 F.2d at 827. “[T]here

must be a right not only to form political associations but to organize and

direct them in the way that will make them most effective.” Id. (quoting

Ripon Soc’y Inc. v. Nat’l Republican Party, 525 F.2d 567, 585 (D.C. Cir.

1975) (en banc)) (internal quotation marks omitted); see also Tashjian v.

Republican Party of Conn., 479 U.S. 208, 224 (1986) (“The Party’s determination of the boundaries of its own association, and of the structure

which best allows it to pursue its political goals, is protected by the Constitution.”); Eu v. San Francisco County Democratic Cent. Comm., 489

U.S. 214, 231 n.21 (1989) (“By regulating the identity of the parties’ leaders, the challenged statutes may also color the parties’ message and interfere with the parties’ decisions as to the best means to promote that

message.”). The government may not “interfere with a [political] party’s

internal affairs” absent a “compelling state interest.” Eu, 489 U.S. at 231.

Associations, no less than individuals, have the right to shape their own

messages. See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342,

348 (1995) (striking down a state law prohibiting anonymous pamphleteering in part because the First Amendment includes a speaker’s right to

choose a manner of expression that she believes will be most persuasive);

AFL-CIO v. FEC, 333 F.3d at 177 (“[E]xtensive interference with political

groups’ internal operations and with their effectiveness . . . implicate[s]

significant First Amendment interests in associational autonomy.”). 

10See AFL-CIO v. FEC, 333 F.3d at 176-77 (“[T]he AFL-CIO and DNC

affidavits charge that disclosing detailed descriptions of training programs,

member mobilization campaigns, polling data, and state-by-state strategies

will directly frustrate the organizations’ ability to pursue their political

goals effectively by revealing to their opponents ‘activities, strategies and

tactics [that] we have pursued in subsequent elections and will likely follow in the future.’ ”); In re Motor Fuel Temperature Sales Practices Litig.,

258 F.R.D. at 415 (“Disclosure of the associations’ evaluations of possible

lobbying and legislative strategy certainly could be used by plaintiffs to

gain an unfair advantage over defendants in the political arena.”). 

PERRY v. SCHWARZENEGGER 599
examples for purposes of illustration only, and because they

are relevant to the assertions of privilege made by Proponents

here.

C.

[17] In this case, Proponents have made “a ‘prima facie

showing of arguable first amendment infringement’ ” by demonstrating “consequences which objectively suggest an impact

on, or ‘chilling’ of, . . . associational rights.” Brock, 860 F.2d

at 349-50 (quoting Trader’s State Bank, 695 F.2d at 1133).

They presented declarations from several individuals attesting

to the impact compelled disclosure would have on participation and formulation of strategy. For example, Mark Jansson,

a member of ProtectMarriage.com’s ad hoc executive committee, stated:

I can unequivocally state that if the personal, nonpublic communications I have had regarding this

ballot initiative — communications that expressed

my personal political and moral views — are ordered

to be disclosed through discovery in this matter, it

will drastically alter how I communicate in the

future. . . . 

I will be less willing to engage in such communications knowing that my private thoughts on how to

petition the government and my private political and

moral views may be disclosed simply because of my

involvement in a ballot initiative campaign. I also

would have to seriously consider whether to even

become an official proponent again.

Although the evidence presented by Proponents is lacking in

particularity, it is consistent with the self-evident conclusion

that important First Amendment interests are implicated by

the plaintiffs’ discovery request. The declaration creates a reasonable inference that disclosure would have the practical

600 PERRY v. SCHWARZENEGGER
effects of discouraging political association and inhibiting

internal campaign communications that are essential to effective association and expression. See Dole, 950 F.2d at 1459-

61 (holding that the union satisfied its prima facie burden by

submitting the declarations of two members who said they

would no longer participate in union membership meetings if

the disclosure of the minutes of the meetings were permitted).

A protective order limiting dissemination of this information

will ameliorate but cannot eliminate these threatened harms.

Proponents have therefore made a prima facie showing that

disclosure could have a chilling effect on protected activities.

The chilling effect is not as serious as that involved in cases

such as NAACP v. Alabama, 357 U.S. 449 (1958), but neither

is it insubstantial. See AFL-CIO v. FEC, 333 F.3d at 176

(“Although we agree that the evidence in this case is far less

compelling than the evidence presented in cases involving

groups whose members had been subjected to violence, economic reprisals, and police or private harassment, that difference speaks to the strength of the First Amendment interests

asserted, not to their existence.”) (citations omitted).

[18] The Proponents having made a prima facie showing of

infringement, the evidentiary burden shifts to the plaintiffs to

demonstrate a sufficient need for the discovery to counterbalance that infringement. The district court did not apply this

heightened relevance test. Rather, having determined that the

First Amendment privilege does not apply to the disclosure of

internal campaign communications except to protect the identities of rank-and-file members and volunteers, the court

applied the Rule 26 standard of reasonably calculated to lead

to the discovery of admissible evidence. We agree with the

district court that plaintiffs’ request satisfies the Rule 26 standard. Plaintiffs’ request is reasonably calculated to lead to the

discovery of admissible evidence on the issues of voter intent

and the existence of a legitimate state interest.11 Such discov11The parties dispute whether plaintiffs’ substantive claims are governed

by strict scrutiny or rational basis review. They also disagree about what

types of evidence may be relied upon to demonstrate voter intent. These

issues are beyond the scope of this appeal. We assume without deciding

that the district court has decided these questions correctly. 

PERRY v. SCHWARZENEGGER 601
ery might help to identify messages actually conveyed to voters. See Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457,

471 (1982) (considering statements made by proponents during an initiative campaign to determine whether voters

adopted an initiative for an improper purpose). It also might

lead to the discovery of evidence showing that Proponents’

campaign messages were designed to “appeal[ ] to the . . .

biases of the voters.” Id. at 463 (quoting Seattle Sch. Dist. No.

1 v. Washington, 473 F. Supp. 996, 1009 (W.D. Wash.

1979)). It might reasonably lead to the discovery of evidence

undermining or impeaching Proponents’ claims that Proposition 8 serves legitimate state interests. See Romer v. Evans,

517 U.S. 620, 635 (1996) (“[A] law must bear a rational relationship to a legitimate governmental purpose.”).

The Rule 26 standard, however, fails to give sufficient

weight to the First Amendment interests at stake. Given Proponents’ prima facie showing of infringement, we must apply

the First Amendment’s more demanding heightened relevance

standard. Doing so, we cannot agree that plaintiffs have

“demonstrated an interest in obtaining the disclosures . . .

which is sufficient to justify the deterrent effect . . . on the

free exercise . . . of [the] constitutionally protected right of

association.” NAACP, 357 U.S. at 463. Plaintiffs can obtain

much of the information they seek from other sources, without intruding on protected activities. Proponents have already

agreed to produce all communications actually disseminated

to voters, including “communications targeted to discrete

voter groups.”

12 Whether campaign messages were designed

12We emphasize that our holding is limited to private, internal campaign communications concerning the formulation of campaign strategy

and messages. See In re Motor Fuel Temperature Sales Practices Litig.,

258 F.R.D. at 415 (“The court wishes to make clear that defendants have

met their prima facie burden only with respect to the associations’ internal

evaluations of lobbying and legislation, strategic planning related to advocacy of their members’ positions, and actual lobbying on behalf of members. Any other communications to, from, or within trade associations are

602 PERRY v. SCHWARZENEGGER
to appeal to voters’ animosity toward gays and lesbians is a

question that appears to be susceptible to expert testimony,

without intruding into private aspects of the campaign.

Whether Proposition 8 bears a rational relationship to a legitimate state interest is primarily an objective inquiry.

In sum, although the First Amendment interests at stake

here are not as weighty as in some of the membership list

cases, and harms can be mitigated in part by entry of a protective order, Proponents have shown that discovery would

likely have a chilling effect on political association and the

formulation of political expression. On the other side of the

ledger, plaintiffs have shown that the information they seek is

not deemed protected under the First Amendment associational privilege.”). 

Our holding is therefore limited to communications among the core

group of persons engaged in the formulation of campaign strategy and

messages. We leave it to the district court, which is best acquainted with

the facts of this case and the structure of the “Yes on 8” campaign, to

determine the persons who logically should be included in light of the

First Amendment associational interests the privilege is intended to protect. 

Our holding is also limited to private, internal communications regarding formulation of strategy and messages. It certainly does not apply to

documents or messages conveyed to the electorate at large, discrete groups

of voters or individual voters for purposes such as persuasion, recruitment

or motivation — activities beyond the formulation of strategy and messages. Similarly, communications soliciting active support from actual or

potential Proposition 8 supporters are unrelated to the formulation of strategy and messages. The district court may require the parties to redact the

names of individuals with respect to these sorts of communications, but

the contents of such communications are not privileged under our holding.

By way of illustration, plaintiffs produced at oral argument a letter from

Bill Tam, one of Proposition 8’s official proponents, urging “friends” to

“really work to pass Prop 8.” A copy of the letter is appended to this opinion. Mr. Tam’s letter is plainly not a private, internal formulation of strategy or message and is thus far afield from the kinds of communications

the First Amendment privilege protects. 

PERRY v. SCHWARZENEGGER 603
reasonably calculated to lead to the discovery of admissible

evidence, but, bearing in mind other sources of information,

they have not shown a sufficient need for the information.

The information plaintiffs seek is attenuated from the issue of

voter intent, while the intrusion on First Amendment interests

is substantial.13

[19] Accordingly, we grant the petition for a writ of mandamus. Proponents have made a prima facie showing of

infringement. Plaintiffs have not shown the requisite need for

the information sought. The district court shall enter a protective order consistent with this opinion.

PETITION GRANTED. Each party shall bear its costs on

appeal.

13We do not foreclose the possibility that some of Proponents’ internal

campaign communications may be discoverable. We are not presented

here with a carefully tailored request for the production of highly relevant

information that is unavailable from other sources that do not implicate

First Amendment associational interests. We express no opinion as to

whether any particular request would override the First Amendment interests at stake. 

604 PERRY v. SCHWARZENEGGER
APPENDIX

PERRY v. SCHWARZENEGGER 605