Amicus Curiae Brief — Americans for Prosperity Foundation, Petitioner v. Rob Bonta, Attorney General of California

NOS. 19-251, 19-255

IN THE

Supreme Court of the United States

AMERICANS FOR PROSPERITY FOUNDATION,

Petitioner,

v.

XAVIER BECERRA, IN HIS OFFICIAL CAPACITY

AS ATTORNEY GENERAL OF THE STATE OF CALIFORNIA,

Respondent.

THOMAS MORE LAW CENTER,

Petitioner,

v.

XAVIER BECERRA, IN HIS OFFICIAL CAPACITY

AS ATTORNEY GENERAL OF THE STATE OF CALIFORNIA,

Respondent.

On Petitions for Writs of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF OF AMICUS CURIAE

PROPOSITION 8 LEGAL DEFENSE FUND

IN SUPPORT OF PETITIONERS

ANDREW P. PUGNO

Counsel of Record

LAW OFFICES OF ANDREW P. PUGNO

8261 Greenback Lane, Suite 200

Fair Oaks, California 95628

(916) 608-3065

andrew@pugnolaw.com

Counsel for Amicus Curiae

Proposition 8 Legal Defense Fund

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..................................... iii

INTEREST OF AMICUS CURIAE ........................... 1

SUMMARY OF THE ARGUMENT ........................... 3

ARGUMENT .............................................................. 3

I.

The “Civic Courage” Required to Exercise

First Amendment Rights Affecting the

Integrity of the Legislative Process and the

Election of Public Officials Is Not a Burden

Imposed Upon Charities and Their Donors. ..... 3

II.

The Internet Has Created New Ways to

Inflict Serious and Permanent Harm Upon

Donors That Simply Didn’t Exist in the Days

of NAACP v. Alabama. ....................................... 6

III. Valuable Insight to the Risks of Public

Disclosure Faced by Donors Can Be Found

in the Examples of Harm Suffered by Prop 8

Supporters. ......................................................... 8

IV. The Public Threats, Harassment,

Intimidation, and Retaliation Faced by

Donors of Controversial Organizations Are

Real, Not Speculative. ........................................ 9

1. Vandalism ................................................ 11

2. Death Threats .......................................... 12

3. Physical Violence ..................................... 14

ii

4. Destruction of Livelihood ......................... 15

5. Harassment in the Workplace ................. 17

V.

The Ninth Circuit Failed to Consider the

Severe Harm Suffered by Prop 8 Supporters

in Assessing the Grave Risks of Disclosure

Facing Petitioners and Their Donors. ............. 18

CONCLUSION ......................................................... 20

iii

TABLE OF AUTHORITIES

Cases

Buckley v. Valeo,

424 U.S. 1 (1976) ............................................. 5, 9

Citizens United v. FEC,

558 U.S. 310 (2010) ............................... 6, 7, 8, 10

Doe v. Reed,

561 U.S. 186 (2010) ..................................... 4 ,5 ,8

Hollingsworth v. Perry,

558 U.S. 183 (2010) ......................................... 8, 9

Hollingsworth v. Perry,

133 S. Ct. 2652 (2013) ......................................... 1

McIntyre v. Ohio Elections Commission,

514 U.S. 334 (1995) ............................................. 4

NAACP v. Alabama ex rel. Patterson,

357 U.S. 449 (1958) ............................................. 6

Perry v. Brown,

52 Cal.4th 1116 (Cal.2011).................................. 1

Purcell v. Gonzalez,

548 U.S 1 (2006) ................................................. 5

Constitutional Provisions

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

iv

Legislative Materials

S. Rep. No. 91-552 (1969)........................................... 5

Court Documents

Brief of Amicus Curiae Alliance Defense Fund

in Support of Appellant, Citizens United,

558 U.S. 310 (No. 08-205).................................. 11

Brief of Amicus Curiae Institute for Marriage

and Public Policy in Support of DefendantIntervenors, Perry v. Schwarzenegger,

704 F. Supp. 2d 921 (N.D. Cal. 2010) ............... 11

Brief of the Institute for Justice as Amicus

Curiae in Support of Petitioners, Doe v.

Reed, 561 U.S. 186 (No. 09-559)........................ 11

Complaint, ProtectMarriage.com—Yes on 8 v.

Bowen, Case No. 2:09-cv-00058-MCE-DAD

(E.D. Cal. 2009) ................................................. 12

Declaration of Hak-Shing William Tam in

Support of Defendant-Intervenors’ Motion

for a Protective Order at 4, Perry v.

Schwarzenegger, 704 F. Supp. 2d 921

(N.D. Cal. 2010) (No. 3:09-CV-2292-VRW) ..12-13

Declaration of Ronald Prentice in Support of

Defendant-Intervenors’ Motion for a

Protective Order at 4, Perry v.

Schwarzenegger, 704 F. Supp. 2d 921

(N.D. Cal. 2010) (No. 3:09-cv- 2292-VRW) ..14-15

v

Declaration of Frank Schubert in Support of

Defendant-Intervenors’ Motion for a

Protective Order at 6, Perry v.

Schwarzenegger, 704 F. Supp. 2d 921

(N.D. Cal. 2010) (No. 3:09-cv-02292VRW)...17-18

Declaration of Sarah Troupis in Support of

Defendant-Intervenors’ Motion for a

Protective Order, Perry v. Schwarzenegger,

704 F. Supp. 2d 921 (N.D. Cal. 2010)

(No. 3:09-cv-2292-VRW) .................................9-10

Petitioners’ Brief, Doe v. Reed,

561 U.S. 186 (No. 09-559).................................. 11

Reply Brief for Appellant, Citizens United,

558 U.S. 310 (No. 08-205)...................... 10, 11, 15

Plaintiffs’ Renewed Notice of Motion and

Motion for Protective Order, Doe v. Reed,

823 F. Supp. 2d 1195 (No. 3:09-cv-05456BHS) ................................................................... 13

Plaintiffs’ Response to Defendants’ Motion for

Summary Judgment Ex. 13, Doe v. Reed,

823 F. Supp. 2d 1195 (No. 3:09-cv-05456BHS) ................................................................... 13

Other Authorities

Angela McCaskill Reinstated: Gallaudet

University Diversity Officer Returns Three

Months After Signing Anti-Gay Marriage

Petition,

Huffington Post (Jan. 8, 2013) .......................... 17

vi

Attack Outside of Catholic Church Part of

‘Wave of Intimidation,’ Says Yes on 8,

Catholic News Agency (Oct. 15, 2008) .............. 14

Prop. 8 Supporter Allegedly Attacked in

Modesto,

KCRA TV (Oct. 15, 2008) .................................. 14

Threats Made Against Gay Marriage

Opponents in Maine,

Bangor Daily News (Nov. 9, 2009) ...............13-14

Question 1 Backers Receive Death Threats,

Former Homosexual Leader Says They

Should Not Live in Fear,

Catholic News Agency (Nov. 16, 2009) ............. 14

Jennifer Garza, Feds Investigate Vandalism at

Mormon Sites,

Sacramento Bee (Nov. 14, 2008) ....................... 12

Krista Gesaman, Threats, Legal Action in

Washington’s Gay-Marriage Debate,

Newsweek (Sept. 8, 2009) ................................. 13

Seth Hemmelgarn, Prop 8 Fight Gets Ugly on

Both Sides,

Bay Area Reporter (Oct. 16, 2008) .................... 14

John-Thomas Kobos, Proposition 8 Email

Threats,

KFSN-TV (Nov. 7, 2008) ................................... 12

Matthai Kuruvila, Mormons Face Flak for

Backing Prop. 8,

S.F. Chron. (Oct. 27, 2008) ................................ 11

vii

Steve Lopez, Prop. 8 Stance Upends Her Life,

Los Angeles Times (Dec. 14, 2008) ................... 18

John R. Lott Jr. and Bradley Smith, Donor

Disclosure Has Its Downsides,

Wall Street Journal (Dec. 26, 2008).................. 16

Dominique Ludvigson, Opinion, Marriage

Debate: Reason to Worry About Free Speech

and Religious Freedom,

St. Paul Pioneer Press (Oct. 28, 2012) .............. 17

Michael Luo, Group Plans Campaign Against

G.O.P. Donors,

N.Y. Times (Aug. 8, 2008) ................................6-7

Juliet Macur, Facing Criticism, U.S. Official

Quits,

N.Y. Times (May 6, 2011) .................................. 16

Phillip Matier and Andrew Ross, Prop. 8 Aid

Puts Paramount Board Member on Hold,

S.F. Chron. (Jan. 20, 2010) ..........................15-16

Angela McCaskill, Gallaudet University Chief

Diversity Officer, Placed on Leave for

Signing Anti-Gay Marriage Petition,

Huffington Post (updated Oct. 18, 2012) .......... 16

Thomas M. Messner, The Price of Prop 8,

Heritage Foundation Backgrounder,

No. 2328 (Oct. 22, 2009) .............................. 11, 15

Cleta Mitchell, Donor Disclosure: Undermining

the First Amendment,

96 Minn. L. Rev. 1755 (2012) ............................ 11

viii

Opinion, Prop. 8 – Boycott, or Blacklist?,

L.A. Times (Dec. 10, 2008) ................................ 15

Chelsea Phua, Mormon Church in Orangevale

Vandalized in Wake of Prop. 8 Vote,

Sacramento Bee (Nov. 9, 2008) ......................... 12

Salvador Rodriguez, Mozilla CEO Brendan Eich

resigns under fire for supporting Prop. 8,

L.A. Times (Apr. 3, 2014) .................................. 17

Brad Stone, Prop 8 Donor Web Site Shows

Disclosure Law is 2-Edged Sword,

N.Y. Times (Feb. 8, 2009) ............................ 10, 12

Lynn D. Wardle, The Judicial Imposition of

Same-Sex Marriage: The Boundaries of

Judicial Legitimacy and Legitimate

Redefinition of Marriage,

50 Washburn L.J. 79 (2010) .............................. 10

1

INTEREST OF AMICUS CURIAE 1

Amicus curiae Proposition 8 Legal Defense Fund

(the “Defense Fund”) is a 501(c)(3) nonprofit charity

established shortly after California voters passed

Proposition 8 (“Prop 8”) in the 2008 general election.2

It was formed primarily to provide for the legal

defense of Prop 8 through public interest litigation.3

Just like Petitioners Americans for Prosperity

Foundation (“AFPF”) and Thomas More Law Center

(the “Law Center”), the Defense Fund is also

prohibited from undertaking any election-related

advocacy.

The Defense Fund’s financial contributors

naturally include donors who had previously and

1 No party’s counsel authored this brief in whole or in part; and

no party, party’s counsel, or any person other than the Defense

Fund contributed money that was intended to fund preparing or

submitting this brief. At least 10 days prior to the due date,

counsel of record for all parties received timely notice of

intention to file this brief of amicus curiae. All parties have

consented to the filing of this brief of amicus curiae; Petitioners

filed blanket consents and Respondent consented by email.

California Proposition 8 (2008) amended the California

Constitution to provide that “[o]nly marriage between a man and

a woman is valid or recognized in California.” Cal. Const. art. I,

§7.5. The U.S. Supreme Court declined to address the merits of

Prop 8’s constitutionality, Hollingsworth v. Perry, 133 S. Ct.

2652 (2013), allowing the district court’s injunction against Prop

8 to stand.

2

3 The defense of Prop 8 was itself controversial and positioned

the California Attorney General adversely to the Defense Fund.

The Attorney General not only declined to defend the voterpassed initiative, but went further to actually litigate against its

constitutionality. See Perry v. Brown, 52 Cal.4th 1116, 1129

(Cal.2011).

2

publicly supported the Prop 8 campaign. But as

relevant to the present cases, the Defense Fund also

received post-election charitable contributions from

other donors who had been too fearful of the risks of

public disclosure to contribute to Prop 8’s earlier

election campaign. These non-political donors agreed

to financially support the Defense Fund’s work solely

on the solemn assurance that their charitable

contributions would never be publicly disclosed.

Much like Petitioners, the Defense Fund is facing

the California Attorney General’s demands for unredacted Schedule B information revealing the

Defense Fund’s confidential listing of its largest

donors. This puts the Defense Fund—and apparently

all other charities operating in California—in a

quandary. If the Defense Fund refuses to disclose its

donors’ protected identities, it faces harsh

enforcement action including penalties and

revocation of its tax-exempt status. On the other

hand, if the Defense Fund releases the information, it

violates its obligation to those donors who were

promised the once-dependable privacy protections

afforded charitable gifts, and newly exposes them to

the threats, harassment, and retaliation they

originally sought to avoid.

The Defense Fund offers this brief of amicus curiae

to illustrate in greater detail the real-world threats,

intimidation, and harassment that many donors

suffer upon disclosure of their identities, and which

are reasonably certain—not just probable—to befall

the Defense Fund’s nonprofit donors, in particular,

who have until now been able to rely on the privacy

protections traditionally afforded supporters of

charitable organizations.

3

SUMMARY OF THE ARGUMENT

While “civic courage” may be required to exercise

First Amendment rights through public acts affecting

elections and the legislative process, it is not a

requirement imposed upon nonprofit charities and

their financial supporters.

Recent events in which donors, whose identities

have been publicly disclosed, have suffered violence,

death threats, ruined careers, property damage, and

other serious consequences show how the evolution of

information technology has created new and serious

risks of harm today that were not even conceived of in

the days of NAACP v. Alabama.

The well-documented and judicially acknowledged

history of severe harm suffered by supporters of

California’s Proposition 8 whose identities were

publicly disclosed illustrates the real and serious

risks of harassment, intimidation, and retaliation

facing donors of other controversial nonprofit

charities.

ARGUMENT

I.

The “Civic Courage” Required to Exercise

First Amendment Rights Affecting the

Integrity of the Legislative Process and the

Election of Public Officials Is Not a Burden

Imposed Upon Charities and Their Donors.

“Civic courage” in the face of public disclosure may

indeed be the price for exercising one’s right to

influence elections and legislative processes, but such

a tax has never been levied upon the charitable work

4

of nonprofit

supporters.

organizations

and

their

financial

There seems to be little disagreement that a

donor’s desire for anonymity, itself, stems from

rational fears of retaliation, social ostracization, and

even economic ruin. McIntyre v. Ohio Elections

Comm’n, 514 U.S. 334, 341-42 (1995). In assessing

government impairment of First Amendment rights,

these considerations are balanced against the type

and strength of the countervailing public or

governmental interest. Where the public interest at

stake is fundamental to the integrity and functioning

of government itself, more interference with

individual First Amendment rights is tolerated.

Where no such interest is at stake, the individual is

entitled to full constitutional protection, including the

requirement of narrow tailoring.

The extent to which an individual is expected to

tolerate “harsh criticism” and other reprisals in

exercising First Amendment rights has been

described as “civic courage.” Doe v. Reed, 561 U.S.

186, 228 (2010) (Scalia, J., concurring). Such courage

is required where the important government interest

at stake is “protect[ing] the integrity and reliability of

the initiative process,” id. at 197, especially in light of

its “traditionally public nature.” Id. at 214

(Sotomayor, J., concurring). So also are political

donors expected to bear the consequences of public

disclosure in order to further the substantial public

interest in “providing the electorate with information

about the sources and recipients of funds used in

political campaigns in order to deter actual corruption

and avoid the appearance of corruption.” See Ninth

Circuit Order Denying Petitions for Rehearing En

5

Banc (Ikuta. S., dissenting), AFPF App. 82a, citing

Buckley v. Valeo, 424 U.S. 1, 66-68 (1976). In sum,

greater latitude is given to regulations that infringe

on First Amendment rights in electoral and

legislative contexts because “[c]onfidence in the

integrity of our electoral processes is essential to the

functioning of our participatory democracy.” Doe v.

Reed, 561 U.S. at 228 (Thomas, J., dissenting),

quoting Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (per

curiam).

As such, the potential for “harsh criticism . . . is a

price our people have traditionally been willing to pay

for self-governance. Requiring people to stand up in

public for their political acts fosters civic courage,

without which democracy is doomed.” Doe v. Reed, 561

U.S. at 228 (Scalia, J., concurring). By contrast, no

authority supports the notion that the public interest

in regulating charitable organizations rises to

anywhere near the same importance as ensuring the

integrity of the legislative process and avoiding

corruption in the election of public officials, matters

essential to the very “functioning of our participatory

democracy.” Nor has charitable giving ever been

recognized as “traditionally public” in nature.4 The

amicus Defense Fund can find no published case in

which supporters of charitable causes have been

burdened with a “civic courage” requirement. Thus,

the Ninth Circuit’s application of a relaxed version of

4 In fact, federal, civil, and criminal statutes proactively shield

charitable donors’ identities from public disclosure, not only to

ensure the rights of anonymity, but also to avoid financial harm

to charities caused by chilling effects that “might prevent

[charitable] gifts.” S. Rep. No. 91-552, at 53 (1969), as reprinted

in 1969 U.S.C.C.A.N. 2027, 2081.

6

exacting scrutiny, under which narrow tailoring is

excused and the burden of “civic courage” is heaped

upon nonprofit charities and their supporters, clearly

collides with this Court’s precedents.

II.

The Internet Has Created New Ways to

Inflict Serious and Permanent Harm Upon

Donors That Simply Didn’t Exist in the

Days of NAACP v. Alabama.

The advent of the Internet and our evolution into

a high-information society have created new and

serious risks of harm today that were not even

conceived of in the days of NAACP v. Alabama ex rel.

Patterson, 357 U.S. 449 (1958).

The need for the courts to grasp the constitutional

import of these “recent events” in which donors have

been “blacklisted, threatened, or otherwise targeted

for retaliation” is illuminated in Justice Thomas’s

concurring and dissenting opinion in Citizens United

v. FEC, 558 U.S. 310, 480-485 (2010). Recounting the

many examples of harm suffered by Prop 8 supporters

as a result of their donations being publicly reported

(including Internet maps targeting the locations of

homes and businesses of Prop 8 supporters, property

damage, threats of physical violence or death, forced

resignations, boycotts, angry mobs, etc.), Justice

Thomas observed that “[t]he success of such

intimidation tactics has apparently spawned a

cottage industry that uses forcibly disclosed donor

information to pre-empt citizens’ exercise of their

First Amendment rights,” id. at 482, including the

formation of organizations dedicated to confronting

donors, “hoping to create a chilling effect that will dry

up contributions.” Ibid. (citing Michael Luo, Group

7

Plans Campaign Against G.O.P. Donors, N.Y. Times

(Aug. 8, 2008), https://www.nytimes.com/2008/08/08/

us/politics/08donate.html). One group even detailed

its plan to send a “warning letter . . . alerting donors

who might be considering giving to right-wing groups

to a variety of potential dangers, including legal

trouble, public exposure and watchdog groups digging

through their lives.” Id. at 482-483.

In other words, the forced disclosure of donor

information ultimately operates to prevent people

from speaking, because they “enable private citizens

and elected officials to implement political strategies

specifically calculated to curtail [protected speech]

and prevent the lawful, peaceful exercise of First

Amendment rights.” Id. at 483. And the “promise that

as-applied challenges will adequately protect speech

is a hollow assurance. . . . because—as California

voters can attest—the advent of the Internet enables

prompt disclosure of expenditures, which provide[s]

political opponents with the information needed to

intimidate and retaliate against their foes.” Id. at 484

(cleaned up). “Thus, disclosure permits citizens . . . to

react to the speech of [their political opponents] in a

proper—or undeniably improper—way long before a

plaintiff could prevail on an as-applied challenge.”

Ibid. In the absence of relief from unconstitutional

disclosure requirements, our citizens remain

subjected to “death threats, ruined careers, damaged

or defaced property, or pre-emptive and threatening

warning letters as the price for engaging in core

political speech, the primary object of First

Amendment protection.” Id. at 485 (cleaned up).

8

III. Valuable Insight to the Risks of Public

Disclosure Faced by Donors Can Be Found

in the Examples of Harm Suffered by Prop

8 Supporters.

The story of harms suffered by Prop 8 supporters

has been told in various contexts, including the

protection of witnesses at trial, Hollingsworth v.

Perry, 558 U.S. 183, 195 (2010) (per curiam),

disclosure of referendum petition signatures, Doe v.

Reed, 561 U.S. 186, 205 (2010), and disclosure of

political contributions under campaign finance laws,

Citizens United v. FEC, 558 U.S. 310 (2010). While

relief was granted in some cases and not others, the

courts have consistently recognized the seriousness of

the reprisals and other harm suffered by publicly

identified Prop 8 supporters.

In 2010, the Supreme Court was asked to stay the

broadcast of the federal trial over Prop 8. In

evaluating the likelihood whether irreparable harm

would result from the denial of a stay, the Court

looked to the apparently uncontroverted evidence

that Prop 8’s advocates “have been subject to

harassment as a result of public disclosure of their

support.” Perry, supra, at 185. The Court observed

that donors supporting Proposition 8 have received

death threats, envelopes containing a powdery white

substance, and confrontational phone calls and e-mail

messages from opponents of Proposition 8, while

others “have been forced to resign their jobs after it

became public that they had donated to groups

supporting the amendment.” Ibid. The Court

addressed “Internet blacklists” identifying proProposition 8 businesses and urging others to boycott

9

them in retaliation, ibid., and numerous instances of

vandalism and physical violence against those

identified as Proposition 8 supporters. Id. at 185-186.

Noting that the fears of the pro-Prop 8 witnesses had

been “substantiated . . . by citing incidents of past

harassment” of known Prop 8 supporters, id. at 195,

the Court concluded that a threat of irreparable harm

had been demonstrated, in favor of granting the stay.

Id. at 195-196.

IV. The

Public

Threats,

Harassment,

Intimidation, and Retaliation Faced by

Donors of Controversial Organizations Are

Real, Not Speculative.

Especially in this age of high information, the

vilification of individuals who take a public stand on

controversial issues can be severe. The events

surrounding Prop 8, in particular, created new

awareness in the minds of many Americans about the

genuine risk of harassment and reprisals faced by

people and groups publicly identified with

controversial social and political issues.

Of course, unfounded speculation, conclusory

statements, fear, and uncertainty are insufficient.

Buckley, 424 U.S. at 71-72. But, as shown by a

substantial body of evidence, significant hostility,

harassment, and reprisals frequently arise against

those people and groups publicly identified with

controversial issues. Although many incidents likely

have gone unreported,5 available sources help

See Declaration of Sarah Troupis in Support of DefendantIntervenors’ Motion for a Protective Order at 4, Perry v.

Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) (No. 3:095

10

illustrate what the New York Times has called the

“ugly specter of intimidation” experienced by people

who supported Prop 8,6 as well as harassment and

reprisals experienced by others outside California and

in contexts other than Prop 8.

The Supreme Court has recognized that

harassment and reprisals against donors are “cause

for concern.” Citizens United, 558 U.S. at 370

(referring to examples of “recent events in which

donors to certain causes were blacklisted, threatened,

or otherwise targeted for retaliation.”). See also Reply

Brief for Appellant at 28-29, Citizens United, 558 U.S.

310 (No. 08-205) (describing “widespread economic

reprisals against financial supporters of . . . Prop 8” as

an “unsettling consequence[ ] of disseminating

contributors’ names and addresses to the public

through searchable websites”).

Donors and other supporters of Prop 8 were

“subject to wide-spread political reprisal, stalking,

assault, intimidation, employment discrimination,

economic and other forms of retaliation” and

“organizations, including churches, that had

supported the measure were attacked, vandalized,

and targeted for revenge.” Lynn D. Wardle, The

Judicial Imposition of Same-Sex Marriage: The

Boundaries of Judicial Legitimacy and Legitimate

Redefinition of Marriage, 50 Washburn L.J. 79, 105

(2010). These real-world harms are well documented.

cv-2292-VRW) (asserting that fear of “further threats and

harassment” deterred some individuals from submitting

declarations in litigation).

6 Brad Stone, Prop 8 Donor Web Site Shows Disclosure Law Is 2-

Edged Sword, N.Y. Times, Feb. 8, 2009, at BU3.

11

See, e.g., Brief of Amicus Curiae Institute for

Marriage and Public Policy in Support of DefendantIntervenors, Perry v. Schwarzenegger, 704 F. Supp. 2d

921 (N.D. Cal. 2010) (entire brief devoted to

documenting harassment against people and groups

that supported Prop 8); Petitioners’ Brief at 2-7, 1011, Doe v. Reed, 561 U.S. 186 (No. 09-559); Reply Brief

for Appellant at 28-29, Citizens United, 558 U.S. 310

(No. 08-205); Brief of the Institute for Justice as

Amicus Curiae in Support of Petitioners at 17-18, Doe

v. Reed, 561 U.S. 186 (No. 09-559); Brief of Amicus

Curiae Alliance Defense Fund in Support of Appellant

at 17-22, Citizens United, 558 U.S. 310 (No. 08-205);

Cleta Mitchell, Donor Disclosure: Undermining the

First Amendment, 96 Minn. L. Rev. 1755, 1760-61

(2012) (stating that “evidence of the harassment

campaign against donors to Proposition 8” was

“extensive” and “widespread”).

1. Vandalism

Harassment against Prop 8 supporters included

acts of vandalism to their homes and other property,

see, e.g., Thomas M. Messner, The Price of Prop 8,

Heritage Foundation Backgrounder, No. 2328, at 3-4

& nn.8, 12, 15, 17-18 (Oct. 22, 2009), http://s3.

amazonaws.com/thf_media/2009/pdf/bg2328.pdf; as

well as to cars and other vehicles, see id. at 3 & nn.912, 15-16. In one example, a household that supported

Prop 8 had the words “Bigots live here” painted on the

window of an SUV parked in front of their home. See

Matthai Kuruvila, Mormons Face Flak for Backing

Prop.

8,

S.F.

Chron.

(Oct.

27,

2008),

https://www.sfgate.com/bayarea/article/Mormonsface-flak-for-backing-Prop-8-3264077.php.

12

In the days after Prop 8 passed, many houses of

worship, including Mormon Church buildings, were

also vandalized. See Jennifer Garza, Feds Investigate

Vandalism at Mormon Sites, Sacramento Bee (Nov.

14, 2008). See also Chelsea Phua, Mormon Church in

Orangevale Vandalized in Wake of Prop. 8 Vote,

Sacramento Bee (Nov. 9, 2008).

2. Death Threats

Prop 8 supporters have also been targeted with

death threats. One such email threat against the

mayor of Fresno stated, “Hey Bubba, you really acted

like a real idiot at the Yes of [sic] Prop 8 Rally this

past weekend. Consider yourself lucky. If I had a gun

I would have gunned you down along with each and

every other supporter.” The email continued,

“Anybody who had a yes on Prop 8 sign or banner in

front of their house or bumper sticker on the car in

Fresno is in danger of being shot or firebombed.”

John-Thomas Kobos, Proposition 8 Email Threats,

KFSN-TV (Nov. 7, 2008), https://abc30.com/archive/

6494921. See also Complaint, ProtectMarriage.com —

Yes on 8 v. Bowen, Case No. 2:09–cv–00058–MCE–

DAD (E.D. Cal. 2009), ¶ 31.

The New York Times also reported that donors to

groups supporting Prop 8 received death threats.

Brad Stone, Prop 8 Donor Web Site Shows Disclosure

Law Is 2-Edged Sword, N.Y. Times, Feb. 8, 2009, at

BU3. An official proponent of Prop 8 reported he was

“threatened to be killed” and “told to leave the

country.” Declaration of Hak-Shing William Tam in

Support of Defendant-Intervenors’ Motion for a

Protective Order at 4, Perry v. Schwarzenegger, 704

13

F. Supp. 2d 921 (N.D. Cal. 2010) (No. 3:09-CV-2292VRW).

Newsweek, in a story about harassment involving

Referendum 71 (a controversial Washington State

ballot measure), described an Internet post that

stated, “I advocate using violence against the

property of ALL of those who are working tirelessly to

HURT my family; starting with churches and

government property . . . any NORMAL man would be

driven to get a gun and kill those who tried such evil

cruelty against his loved ones.” Krista Gesaman,

Threats, Legal Action in Washington’s Gay-Marriage

Debate, Newsweek (Sept. 8, 2009), https://www.

newsweek.com/threats-legal-action-washingtonsgay-marriage-debate-211642. The posting specifically

named the campaign manager for one of the groups

supporting Referendum 71, who then “received many

harassing and threatening emails,” Plaintiffs’

Renewed Notice of Motion and Motion for Protective

Order at 8, Doe v. Reed, 823 F. Supp. 2d 1195 (No.

3:09-cv-05456-BHS), including one email from an

individual who “stated that he hoped that [the

campaign manager and his wife] would have to watch

[their] daughters being molested and raped,”

Plaintiffs’ Response to Defendants’ Motion for

Summary Judgment Ex. 13, at ¶ 4, Doe v. Reed, 823

F. Supp. 2d 1195 (No. 3:09-cv-05456-BHS).

In 2009, shortly after Maine voters approved a

ballot measure to overturn same-sex marriage

legislation adopted by the state legislature, the

headquarters of a group that had supported the ballot

measure received a voicemail stating, “ ‘You will be

dead. Maybe not today, not tomorrow. But soon you’ll

be dead.’ ” Threats Made Against Gay Marriage

14

Opponents in Maine, Bangor Daily News (Nov. 9,

2009), https://bangordailynews.com/2009/11/09/poli

tics/threats-made-against-gay-marriage-opponentsin-maine.7

3. Physical Violence

Other incidents of retaliation against Prop 8

supporters involved actual, personal physical

violence. For example, a Prop 8 supporter who was

distributing campaign signs was taken to the hospital

for 16 stitches after being punched in the face by

someone attempting to take and destroy the signs.

Attack Outside of Catholic Church Part of ‘Wave of

Intimidation,’ Says Yes on 8, Catholic News Agency

(Oct. 15, 2008), https://www.catholicnewsagency.com/

news/attack_outside_of_catholic_church_part_of_wa

ve_of_intimidation_says_yes_on_8.8

Supporters holding signs and distributing

materials were “victims of physical assaults such as

being spat upon and having hot coffee thrown on them

by passengers in passing automobiles.” Declaration of

7 See also, Question 1 Backers Receive Death Threats, Former

Homosexual Leader Says They Should Not Live in Fear, Catholic

News Agency (Nov. 16, 2009), https://www.catholicnews

agency.com/news/question_1_backers_should_not_live_in_fear_

after_death_threats_former_homosexual_leader_says

(reporting same death threat with slightly different wording and

also reporting second death threat).

8 See also Seth Hemmelgarn, Prop 8 Fight Gets Ugly on Both

Sides, Bay Area Reporter (Oct. 16, 2008), https://www.ebar.com/

index.php?ch=news&sc=&sc3=&id=239406&pf=1; and Prop. 8

Supporter Allegedly Attacked in Modesto, KCRA TV (Oct. 15,

2008), https://www.nbcbayarea.com/news/politics/Prop_8_Supp

orter_Allegedly_Attacked_In_Modesto.html.

15

Ronald Prentice in Support of Defendant-Intervenors’

Motion for a Protective Order at 4, Perry v.

Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010)

(No. 3:09-cv- 2292-VRW). In another incident, an

elderly woman was spit at while protestors knocked

out of her hands and stomped on a cross she carried.

The Price of Prop 8, supra, at 10 & nn.80-83. And a

small group of Christians were harassed to the point

of requiring police protection when an angry crowd

apparently took them for Prop 8 supporters. The Price

of Prop 8, supra, at 10 & nn.84-88.

4. Destruction of Livelihood

In addition, there have been numerous reports of

“widespread economic reprisals.” Reply Brief for

Appellant at 28-29, Citizens United, 558 U.S. 310 (No.

08-205). Employers of Prop 8 supporters have been

targeted, resulting in some of them having to resign,

take a leave of absence, or otherwise lose professional

opportunities. See Opinion, Prop. 8 – Boycott, or

Blacklist?,

L.A.

Times

(Dec.

10,

2008),

https://www.latimes.com/news/opinion/editorials/laed-boycott10-2008dec10,0,2703213.story (stating that

“postelection boycott efforts” by “defenders of samesex marriage” escalated into “a vengeful campaign

against individuals who donated” in support of Prop

8, “usually in the form of pressure on their

employers”).9

9 See additional sources in The Price of Prop 8, supra, at 11 &

nn.89-97, and incidents occurring long after Prop 8 vote at

Phillip Matier and Andrew Ross, Prop. 8 Aid Puts Paramount

Board Member on Hold, S.F. Chron. (Jan. 20, 2010),

https://www.sfgate.com/bayarea/matier-ross/article/Prop-8-aidputs-Paramount-board-member-on-hold-3202211.php (report-

16

In another example, a high-level staff member of

the U.S. Olympic Team was pressured to resign based

on criticism involving his support of Prop 8. Juliet

Macur, Facing Criticism, U.S. Official Quits, N.Y.

Times (May 6, 2011), https://www.nytimes.com/

2011/05/07/sports/olympics/07usoc.html. The director

of the nonprofit California Musical Theater gave

$1,000 to support the initiative; he was forced to

resign after artists complained to his employer. John

R. Lott Jr. and Bradley Smith, Donor Disclosure Has

Its Downsides, Wall Street Journal (Dec. 26, 2008),

https://web.archive.org/web/20150105005625/www.

wsj.com/articles/SB123025779370234773. And the

director of the Los Angeles Film Festival was forced

to resign after it was reported he gave $1,500 to Prop

8 and opponents threatened to boycott and picket the

next festival. Ibid.

In Washington, D.C., a university placed one of its

top employees on administrative leave simply for

signing a petition to allow Maryland voters to vote on

the question of marriage directly. See, e.g., Angela

McCaskill, Gallaudet University Chief Diversity

Officer, Placed on Leave for Signing Anti-Gay

Marriage Petition, Huffington Post (Oct. 18, 2012),

https://www.huffpost.com/entry/angela-mccaskillgallaudet-gay-marriage-petition_n_1955814.html.

After the petition signatures were posted online, a

faculty colleague reportedly saw the signature and

submitted a complaint to the university’s president

asking for disciplinary action against the employee.

ing that donation to Prop 8 “appears to have cost” the donor “his

seat on the board that oversees Oakland’s historic Paramount

Theatre”).

17

See Dominique Ludvigson, Opinion, Marriage Debate:

Reason to Worry About Free Speech and Religious

Freedom, St. Paul Pioneer Press (updated Nov. 11,

2015),

https://www.twincities.com/2012/10/28/

dominique-ludvigson-marriage-debate-reason-toworry-about-free-speech-and-religious-freedom. The

employee was later vindicated, but the university

took nearly three months to reinstate her

employment. Angela McCaskill Reinstated: Gallaudet

University Diversity Officer Returns Three Months

After Signing Anti-Gay Marriage Petition, Huffington

Post (Jan. 8, 2013), https://www.huffpost.com/entry/

angela-mccaskill-reinstated-gallaudet_n_2432838.

Evidence of harm to those who supported Prop 8

has persisted, even years after its adoption: “Just

days after taking the job, Brendan Eich has resigned

as chief executive of Mozilla, the maker of Firefox,

after coming under fire for his 2008 support of

Proposition 8.” Salvador Rodriguez, Mozilla CEO

Brendan Eich resigns under fire for supporting Prop.

8, L.A. Times (Apr. 3, 2014), https://articles.latimes.

com/2014/apr/03/business/la-fi-tn-mozilla-ceo-resigns

-under-fire-prop-8-20140403. The JavaScript founder

was forced to resign “after he came under sharp

criticism for donating $1,000 to a campaign that

supported Proposition 8.” Id.

5. Harassment in the Workplace

“[S]everal donors” to Prop 8 allegedly “had . . . their

employees harassed, and . . . received hundreds of

threatening emails and phone calls.” Declaration of

Frank Schubert in Support of Defendant-Intervenors’

Motion for a Protective Order at 6, Perry v.

18

Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010)

(No. 3:09-cv-02292VRW).

For example, a woman who had managed her

popular, family-owned restaurant for 26 years was

forced to resign after it was made public that she gave

$100 to Prop 8, because “throngs of [angry]

protesters” repeatedly arrived at the restaurant and

“shout[ed] ‘shame on you’ at customers.” Steve Lopez,

Prop. 8 Stance Upends Her Life, Los Angeles Times

(Dec. 14, 2008), https://articles.latimes.com/2008/dec/

14/local/me-lopez14. The police even had to “arriv[e]

in riot gear one night to quell the angry mob” at the

restaurant. “I’ve almost had a nervous breakdown.

It’s been the worst thing that’s ever happened to me,”

she said. Ibid.

While boycotting businesses over corporate

practices or positions is an accepted and time-honored

American political tactic, punishing employers

because of their employees’ personal political

viewpoints is a very different, troubling tactic that

betrays a raw desire to suppress a particular

viewpoint under threat of losing one’s very livelihood.

V.

The Ninth Circuit Failed to Consider the

Severe Harm Suffered by Prop 8

Supporters in Assessing the Grave Risks of

Disclosure Facing Petitioners and Their

Donors.

All of the above examples of retaliation and harm

inflicted upon supporters of Prop 8 were provided to

the Ninth Circuit by way of amicus briefs filed by the

Defense Fund in those proceedings. Notably, in

addressing the “actual burden” on First Amendment

19

rights created by mandated blanket disclosure of

unredacted Schedule B donor information to the

Attorney General, the Ninth Circuit acknowledged

that the plaintiffs were not necessarily limited to

their own experiences in producing evidence to show

“a reasonable probability that the compelled

disclosure of personal information will subject them

to threats, harassment, or reprisals from either

Government officials or private parties,” and

confirmed that evidence of retaliation suffered by

supporters of “similar organizations” can also be

probative as well. AFPF App. 24a, n.4.

But on the question of whether disclosure of

confidential Schedule B information to the Attorney

General is likely to subject the Petitioners’ donors to

threats, harassment, and reprisal, the panel’s review

of the evidence was quite narrow and certainly did not

reach beyond Petitioners’ first-hand experiences.

Also, although the panel conceded that the “evidence

undeniably shows that some individuals publicly

associated with the Foundation have been subjected

to threats, harassment or economic reprisals,” AFPF

App. 31, that evidence was largely discounted on

grounds that it “pertains to individuals who are

publicly identified with a number of controversial

activities or organizations, making it difficult to

assess the extent to which the alleged harassment

was caused by a connection to the Foundation . . . in

particular.” AFPF App. 31, n.6. Finding those

uncertainties to be insurmountable, and considering

none of the examples (both presented at trial and via

amicus briefs) regarding the experiences of financial

supporters of other similar organizations, the panel

found no evidence that public disclosure of Schedule

20

B information would likely subject Petitioner’s

contributors, in particular, to retaliation. AFPF App.

34.

CONCLUSION

The real harms suffered by AFPF and the Law

Center (as well as amicus Defense Fund) and their

donors are not unique or isolated. The testimony of

experts at trial, the shared experiences of other

charities, and common sense inform the conclusion

that all nonprofit organizations who maintain

confidential donor information (especially those that

engage in controversial public issues, no matter what

end of the political spectrum) are exposed to the same

public threats, harassment, intimidation, and

retaliation, much of which is today enabled by

information technology that wasn’t even imagined at

the time of NAACP v. Alabama.

The outcome of this case has real consequences. It

is inevitable that people will suffer tangible harm if

the California Attorney General’s unlawful practice is

allowed to stand. The petitions for writs of certiorari

should be granted on this issue of exceptional

importance.

21

Respectfully submitted,

ANDREW P. PUGNO

Counsel of Record

LAW OFFICES OF ANDREW P. PUGNO

8261 Greenback Lane, Suite 200

Fair Oaks, California 95628

(916) 608-3065

andrew@pugnolaw.com

Counsel for Amicus Curiae

Proposition 8 Legal Defense Fund

September 25, 2019