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

Supreme Court briefFeb 23, 2021

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Text

Nos. 19-251 & 19-255

In the

Supreme Court of the United States

Americans for Prosperity Foundation, Petitioner

Xavier Becerra, Attorney General of California,

Respondent

and

Thomas More Law Center, Petitioner

Xavier Becerra, Attorney General of California,

Respondent

On Writ of Certiorari to the United States Court

of Appeals for the Ninth Circuit

Brief of Amicus Curiae James Madison Center

for Free Speech Supporting Petitioners

February 2021

James Bopp, Jr.

Counsel of Record

Richard E. Coleson

THE BOPP LAW FIRM, PC

The National Building

1 South Sixth Street

Terre Haute, IN 47807

812/232-2434 (telephone)

812/235-3685 (facsimile)

jboppjr@aol.com

Counsel for Amicus Curiae

Question Presented

California’s Attorney General requires submission

of both IRS Form 990 and Schedule B (disclosing donors) to the Register of Charitable Trusts. Amicus curiae addresses an aspect of the following issue:

Whether the Schedule B disclosure requirement

violates charities’ and donors’ freedom of association and speech.

(i)

Table of Contents

Question Presented . . . . . . . . . . . . . . . . . . . . . . . . . (i)

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . (iii)

Interests of Amici Curiae. . . . . . . . . . . . . . . . . . . . . . 1

Summary of the Argument . . . . . . . . . . . . . . . . . . . . 1

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Evidence of Harm and Chill from Compelled

Disclosure of Support for California’s Proposition 8 Supports Requiring Strong, Special Justification for Compelled Disclosure Here. . . . . . . 4

A. Due to the inherent chill on speech and

association, mandating donor disclosure

requires special justification and exemptions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

B. California’s Proposition 8 experience provides evidence of harm from donor disclosure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

C. Harms from Proposition 8 disclosure

chilled speech and association. . . . . . . . . . . . 26

D. This Court and its members have cited and

acted on the ProtectMarriage record. . . . . . . 31

E. The ProtectMarriage record supports requiring strong, special justification for compelled disclosure of political and ideological

association.. . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

(ii)

Table of Authorities

Cases

American Tradition Partnership v. Bullock, 567

U.S. 516 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Buckley v. Valeo, 424 U.S. 1 (1976) . . . . . . . . . . 2, 4, 5

Citizens United v. FEC, 558 U.S. 310 (2010) . . . 1, 31

Doe v. Reed, 561 U.S. 186 (2010) . . . . . . . . . . . . . . . 31

Elrod v. Burns, 427 U.S. 347 (1976) . . . . . . . . . . . . 26

FEC v. Beaumont, 539 U.S. 146 (2003) . . . . . . . . . . . 1

FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007) 1

Hollingsworth v. Perry, 558 U.S. 183 (2010). . . . . . 31

McConnell v. FEC, 540 U.S. 93 (2003) . . . . . . . . . . . 1

McCutcheon v. FEC, 134 S.Ct. 1434 (2014) . . . . . . . 1

NAACP v. Alabama, 357 U.S. 449 (1958) . . . . . . . 1, 4

ProtectMarriage v. Bowen, 752 F.3d 827 (9th Cir.

2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ProtectMarriage v. Padilla, 135 S. Ct. 1523 (2015) . 2

ProtectMarriage.com-Yes on 8 v. Bowen, 830 F.

Supp. 2d 914 (E.D. Cal. 2011) . . . . . . . . . . passim

(iii)

Randall v. Sorrell, 548 U.S. 230 (2006) . . . . . . . . . . 1

Republican Party of Minnesota v. White, 536 U.S.

765 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

United States v. Carroll Towing Co., 159 F.2d 169

(2d. Cir. 1947) . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5

Wisconsin Right to Life v. FEC, 546 U.S. 410 (2006)

........................................ 1

Constitutions, Statutes, Regulations & Rules

U.S. Const. amend I . . . . . . . . . . . . . . . . . . . . . passim

U.S. Supreme Court Rule 37 . . . . . . . . . . . . . . . . . . . 1

Other Authorities

Peter Boghossian, Welcome to Culture War 2.0: The

Greate Realignment (Nov. 8, 2019), americanmind.org/essays/welcome-to-culture-war-2-0

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Reporters Committee for Freedom of the Press, The

Dangers of Doxxing (Spring 2015), www.rcfp.

org/journals/news-media-and-law-spring2015/dangers-doxxing . . . . . . . . . . . . . . . . . . . . . 30

Salvador Rodriguez, Mozilla CEO Brendan Eich

Resigns under Fire for Supporting Prop. 8, L.A.

Times (Apr. 3, 2014), articles.latimes.com/2014/apr/03/

business/la-fi-tn-mozilla-ceo-resigns-under-fireprop-8-20140403 . . . . . . . . . . . . . . . . . . . . . . . . . 30

(iv)

Interest of Amicus Curiae1

The purpose of the James Madison Center for Free

Speech (“Madison Center”) is to support litigation and

public education activities defending the rights of political expression and association. The Madison Center is

an internal educational fund of James Madison Center,

Inc., a District of Columbia non-profit corporation. Madison Center is tax-exempt under 26 U.S.C. 501(c)(3).

See https://www.jamesmadisoncenter.org. Counsel for

Amicus have authored articles, testimony, and comments and litigated numerous cases involving campaign-finance and free-speech issues. James Bopp, Jr.

is Madison Center’s general counsel. Cases in which he

was counsel in this Court include Republican Party of

Minnesota v. White, 536 U.S. 765 (2002), FEC v. Beaumont, 539 U.S. 146 (2003), McConnell v. FEC, 540 U.S.

93 (2003), Wisconsin Right to Life v. FEC, 546 U.S. 410

(2006), Randall v. Sorrell, 548 U.S. 230 (2006), FEC v.

Wisconsin Right to Life, 551 U.S. 449 (2007), Citizens

United v. FEC, 558 U.S. 310 (2010), American Tradition Partnership v. Bullock, 567 U.S. 516 (2012), and

McCutcheon v. FEC, 134 S.Ct. 1434 (2014).

Summary of the Argument

In NAACP v. Alabama, 357 U.S. 449 (1958), this

Court recognized “that compelled disclosure of affiliation with [advocacy] groups . . . may constitute an effective constraint on freedom of association,” id. at 462,

Rule 37 statement: Petitioners and Respondent in Nos.

19-251 and -255 consent to the filing of this brief; no counsel

for any party authored this brief in whole or in part; and no

person or entity other than amicus or its counsel funded its

preparation or submission except for funding provided by

the National Right to Life Committee, Inc.

so compelled disclosure requires special justification.

In Buckley v. Valeo, 424 U.S. 1 (1976), this Court found

that information about donors to organizations is similarly protected, so (i) all compelled disclosure requires

special justification id. at 65-66, and (ii) even where it

is generally justified, there must be exemptions for

groups with a reasonable probability of threats, harassment, and reprisals, id. at 74. The legal harm of

publicly exposing donors who wish not to be exposed is

that it deters their affiliation with the groups to which

they donate and thereby infringes on their First

Amendment-protected rights of political association

and collective speech.

Limiting the number of organizations providing donors’ names and addresses by required submission of

Schedule B decreases the potential for harm triggered

by exposure to state officials and personnel and by inadvertent or intentional public disclosure. And consideration must be given to the “the gravity of the resulting injury.” United States v. Carroll Towing Co., 159

F.2d 169, 173 (2d. Cir. 1947). That is shown herein.

Extensive evidence of such threats, harassment,

and reprisals was submitted in ProtectMarriage.comYes on 8 v. Bowen, 830 F. Supp. 2d 914 (E.D. Cal. 2011)

(“ProtectMarriage”), affirmed in part, dismissed in part,

and remanded, 752 F.3d 827 (9th Cir. 2014), cert. denied sub nom. ProtectMarriage v. Padilla, 135 S. Ct.

1523 (2015),2 which informs the present cases. ProtectMarriage was a political committee formed to support

Proposition 8—a ballot proposition and constitutional

Buckley’s reasonable-probability test, 424 U.S. at 74,

was interpreted narrowly and ProtectMarriage didn’t get

the exemption it sought despite its harms.

amendment recognizing marriage as between one man

and one woman—and California required disclosure of

its donors. This resulted in substantial harm to the

advocacy group and its donors, submitted as evidence

in ProtectMarriage and summarized here.

Because California required public release of identities, home addresses, and employers of donors to ProtectMarriage, political opponents were able to publish

this personal information on websites with maps showing donors’ homes and businesses so that aggressive

activists could attack them there. The result of this

vicious campaign was overwhelming evidence that the

publicly disclosed information led directly to threats,

harassment, and reprisals for the donors to the advocacy group. Documents filed provide: (1) undisputed

testimony and evidence of over 80 instances of threats,

harassment, and reprisals against 58 “John Does”; (2)

links to 14 videos reporting and in some cases recording ugly and sometimes violent confrontations and “protests” with Prop 8 supporters, and; (3) 157 published

accounts of threats, harassment, and reprisals directed

at supporters of Prop 8. These vicious campaigns damaged their victims and cast a chill over supporters of

traditional marriage who might have considered working with and contributing to ProtectMarriage or similar organizations.

This Court and its members have cited and acted on

the evidence in ProtectMarriage, making it the quintessential example of threats, harassment, and reprisals

emanating from disclosure of contributors.

The harm and chill from compelled disclosure of

donors in ProtectMarriage show again why requiring

submission of IRS Form 990 Schedules B to California

requires strong, special justification.

Argument

Evidence of Harm and Chill from Compelled

Disclosure of Support for California’s Proposition 8 Supports Requiring Strong, Special

Justification for Compelled Disclosure Here.

A. Due to the inherent chill on speech and association, mandating donor disclosure requires

special justification and exemptions.

Because compelled disclosure of political and ideological association imposes an inherent chill on speech

and association, NAACP, 357 U.S. at 462 (“compelled

disclosure of affiliation with [advocacy] groups . . . may

constitute an effective constraint on freedom of association”), this Court in its wisdom has provided two sorts

of protection against such compelled disclosure.

First, all compelled disclosure must be specially

justified due to the inherent chill it imposes. In Buckley, 424 U.S. 1, this Court recalled the inherent chill

established in NAACP and found association by contribution to be as protected as association by membership, id. at 65-66, so this Court required special justification for compelled disclosure of contributions too.

The chill is inherent because, once one is disclosed, all

that is required for harm is for hostile forces to target

you, so the potential is always there. So the chill need

not be proven and the government always must specially justify compelling disclosure, whether or not a

group fits the second protection category.

Second, even where compelled disclosure has been

specially justified, and so permitted, there must a second protection category. That provides exemptions for

groups establishing a reasonable probability of threats,

harassment, and reprisals. Id. at 74. Notably, no group

need prove the second category to require the government to meet is duty under the first category to specially justify its compelled disclosure.

The evidence summarized below from California’s

Proposition 8 experience is a contemporary example of

why compelled disclosure of political and ideological

association always requires special justification. The

compelled disclosure of supporters of Proposition 8

(supporting traditional marriage) left those disclosed

supporters subject to attack whenever someone chose

to target them. And the chill on association and collective speech was well established in ProtectMarriage.

California’s requirement that groups file IRS Schedule B discloses donors’ political and ideological associations to state officials and personnel and increases the

risk of public exposure. Given the inherent chill in such

compelled disclosure, the government must specially

justify its disclosure requirement. Limiting the number

of organizations providing donors’ names and addresses by required submission of Schedule B decreases the potential for harm triggered by inadvertent

or intentional disclosure, while expanding that number

into more jurisdictions increases that harm potential.

And consideration must be given to the “the gravity of

the resulting injury.” Carroll Towing Co., 159 F.2d at

173. That is established next.

B. California’s Proposition 8 experience provides evidence of harm from donor disclosure.

Extensive evidence of donor harassment3 was

“Harassment” is used collectively here to include

submitted in ProtectMarriage, 830 F. Supp. 2d 914,

which evidence informs the present cases. ProtectMarriage was a citizen-advocacy group in California’s Proposition 8 (also called “Prop 8”) campaign,

which sought a constitutional amendment to protect

traditional marriage in the November 2008 California

state elections. As Proposition 8 donor information was

disclosed—required by California campaign-finance

law—widespread, serious harassment of donors to

ProtectMarriage occurred, along with harassment of

those identified in any way as Prop 8 supporters. Together, this evidence supported an exemption that

ProtectMarriage sought from disclosing donors under

Buckley’s reasonable-probability test, 424 U.S. at 74,

but the Test was interpreted narrowly and ProtectMarriage didn’t get the exemption. But this evidence also

supports the special justification required for all such

disclosure.

The ProtectMarriage district court summarized the

evidence of harms in a useful way. 830 F. Supp. 2d at

917-23.

That evidence was from Plaintiffs’ summary-judgment Statement of Undisputed Facts (“Fact Statement”) and exhibits, which provide valuable evidence

of harm for present consideration. The Fact Statement

is doc. 251 on the docket for No. 2:090CV-00058-MCEDAD, available via https://pacer.uscourts.gov/.

The Fact Statement cites (inter alia) Exhibits 1

“threats, harassment, and reprisals.” Buckley, 558 U.S. at

367. Notably, this evidence applies both to a disclosure exemption (which was sought by ProtectMarriage) and to the

general requirement that all compelled disclosure be specially justified (at issue with Schedule B disclosure).

through 4 (each with multiple parts), which are at

docs. 246–1 through 250–3 on the docket. 4, 5

Generally, the evidence showed that, because California required the public release of identities, home

addresses, and employers of donors to ProtectMarriage,

political opponents were able to publish this personal

information on numerous websites, including MapQuesting the donors’ homes and businesses so that

aggressive activists could attack them there. And they

did. The result of this vicious campaign was overwhelming evidence that the publicly disclosed informa4

The Fact Statement and exhibits are also available at

www.jamesmadisoncenter.org/cases/files/protect-marriagebo w e n/ pl ai nt i f f s -s t at e m e nt-undisputed.pdf and

www.regulations.gov/document?D=IRS-2019-0039-8286. All

active links herein were checked February 22, 2021. Some

links cited in the evidence are now inactive (and are so

noted) but were active when the evidence was introduced

and so are historically accurate.

Plaintiffs’ Exhibits 1 through 4 were filed in support of

ProtectMarriage’s (and other plaintiffs’) summary-judgment

motion, i.e., doc. 245. Exhibits 1 through 4 contain broad

categories of exhibits and were broken into smaller parts for

filing: Exhibit 1 is doc. 246–1 and doc. 246–2 (John Doe

declarations); Exhibit 2 is doc. 246–3 (election results);

Exhibit 3 is doc. 246–4 (videos); Exhibit 4 is doc. 247–1

through doc. 250–3 (online and news articles and blog postings). Within Exhibits 1 through 4 are sub-exhibit identifications, e.g., Exhibit 4 is divided into ex. 4-1 through ex. 4157. Despite being broken up for filing purposes each of

plaintiffs’ Exhibits 1 through 4 is internally numbered in

the lower-right footer with numbers that are sequential

throughout each (regardless of it being broken up), and citations herein are to those internal Exhibit numbers.

tion led directly to harassment directed at donors to an

advocacy group. Documents filed provide: (1) undisputed testimony and evidence of over 80 previously

unreported instances of harassment against 58 “John

Does”; (2) links to 14 then-contemporary videos reporting and in some cases recording ugly and sometimes

violent confrontations and “protests” with Prop 8 supporters, and; (3) 157 contemporarily published accounts of harassment directed at supporters of Prop 8.

Among the incidents reported in this evidence were

death threats, threats of violence, vandalism, threats

of destruction of property, arson, threats of arson, angry and lewd protests, intimidating emails and phone

calls, mailed envelopes of suspicious powder, entire

web sites dedicated to blacklisting supporters of traditional marriage and similar causes, loss of employment

and job opportunities, intimidation and reprisals on

campus and in the classroom, economic reprisals and

demands for “hush money,” and gross expressions of

anti-religious bigotry, including vandalism and threats

directed at religious institutions and religious adherents. Not surprisingly, this vicious campaign damaged

the victims of it and cast a chill over supporters of traditional marriage who might have considered working

with ProtectMarriage or other organizations in favor of

traditional marriage. See generally Statement. See also

ProtectMarriage, 830 F. Supp. 2d at 917-23 (district

court’s evidence summary).

More specifically, on November 4, 2008, California

passed Proposition 8, defining marriage as between

one man and one woman. During and after the campaign, Prop 8 opponents publicized on the Internet the

names, employers, and contact information of Proposition 8 campaign contributors from public filings to ha-

rass and intimidate them using (inter alia) then-active

links at www.eightmaps.com6 and www.californiansagainsthate.com.7 This evidence was summarized in the

Facts Statement and some quoted selections follow

(with paragraph numbers replaced by bullet points):

EightMaps.com and Blacklists

• The efforts of individuals or groups who wish

to inappropriately target persons who supported

traditional marriage are greatly facilitated by

Internet web sites that combine information

gleaned from state-mandated political reports with

other publicly available information, thus enabling

those so inclined to more easily threaten and intimidate marriage supporters at home and at work.

Fact Stmt. ¶ 66.

• For example, the web site EightMaps.com

[now inactive] is a GoogleMaps “mashup”8 that combines data obtained from the California Secretary

Though this is no longer active, the Wayback Machine

has page snapshots (not now disclosing donors). See, e.g.,

https://web.archive.org/web/20110224025618/http://www.

eightmaps.com/.

Though this is no longer active, the Wayback Machine

has page snapshots(not now disclosing donors). See, e.g.,

http://www.californiansagainsthate.com/.

“PCMag.com, ‘Mashup,’ http://www.pcmag.com/encyclopedia_term/0,,t=&i=55949,00.asp ([now inactive]) (defining ‘mashup’ as: ‘A mixture of content or elements. For example, an application that was built from routines from

multiple sources or a Web site that combines content and/or

scripts from multiple sources is said to be a mashup. The

term became popular in the 2005 time frame.’).” Fact Stmt.

¶ 67 n.7.

of State (for political donation reports) with an interactive geographical map. (Exs. 4-152, 4-153.) An

individual can use the web site to search for any

city and print a map graphically illustrating the

name, address, amount, occupation, and employer

of each individual in that city who donated to Prop.

8. A New York Times article commented, “Eightmaps.com is the latest, most striking example of

how information collected through disclosure laws

intended to increase the transparency of the political process, magnified by the powerful lens of the

Web, may be undermining the same democratic

values that the regulations were to promote.” (Ex.

4-154.)

Fact Stmt. ¶ 67.

• Other web sites popularly called “blacklists”

have sprung up that list citizens (and groups as

well), by name, that contributed in support of Prop.

8. (E.g., Exs. 4-58, 4-133, 4-139.) Each of the following web sites lists donors or known supporters of

traditional marriage and encourages action against

them:9

“The web site ‘You Can’t Hide Your Hate’ identifies

individual supporters of Prop. 8, but includes a disclaimer

that the web site does not advocate violence, vandalism, or

threats, or, for that matter, even boycotts. (Ex. 4-114.) However, as the Long Beach Press-Telegram noted in an editorial, the web site’s actions speak louder than its quiet disclaimer. If nothing else, the editorial pointed out, the name

of the web site—You Can’t Hide Your Hate—‘tars people .

. . with a broad and clumsy brush,’ adding that so long as

this debate rages, what is needed is a ‘huge dose of civility.’

(Ex. 4-113.)

In addition, at least two major California newspapers

a. http://www.californiansagainsthate.com [now

inactive] (Ex. 4-62)

http://fighttherightwingnuts.blogspotcom/2009/01/pro-h8-bigots-who-donated-in-paloalto.html [now inactive] (Ex. 4-110)

c. http://knowthyneighbor.org/ [now inactive] (Ex.

4-109)

d. http://www.mormonsstoleourrights.com/ [now inactive]10

e. http://mormonsfor8.com/11 [now inactive] (Exs.

4-106, 4-105)

f. http://www.stopthemormons.com/ [now inactive]

(Ex. 4-104)

have compiled searchable databases on their respective web

sites that enable easy access to look up Prop. 8 contributors.

(Exs. 4-138, 4-83.)” Fact Stmt. ¶ 68 n.8.

“It appears that MormonsStoleOurRights.com has

been stripped of its content, but it is evident from other

Internet blogs and article that the site was, for a time at

least, the focal point of a ‘petition drive . . . to the IRS to

strip the Mormon church of its tax exempt status.’ (See, e.g.,

Ex. 4-107.) In any event, the site MormonsStoleOurRights.

com was only one of several web sites that openly called for

the revocation of the Mormon church’s tax-exempt status

because of its support for traditional marriage. (E.g., Exs.

4-14, 4-15, 4-19.)” Fact Stmt. ¶ 68 n.9.

“Mormonsfor8.com is a web site whose goal is to identify every Mormon donor to Prop. 8. The site actively solicits

help from visitors to the web site. The web site lists every

individual contributor to Prop. 8, and whether each contributor is Mormon or not Mormon. It encourages visitors to the

site to review the list, to spot the Mormons they know, and

report them by sending an email to yeson8donors@mormonsfor8.com. (Ex. 4-105.)” Fact Stmt. ¶ 68 n.10.

g. http://www.antigayblacklist.com/12 [now inactive]

(Ex. 4-10)

h. http://www.hrc.org/news/11542.htm [now inactive] (Ex. 4-21)

i. http://www.dontbuyfrombigots.com/ [now inactive](Ex. 4-28)

j. http://www.afterellen.com/node/39787 [now inactive] (Ex. 4-98)

k. http://boycotta-1selfstorage.com/ [now inactive]

(Ex. 4-134).

Fact Stmt. ¶ 68.

• The blacklists have been used, for instance, to

go onto the restaurant web site yelp.com, and give

bad reviews to restaurants that supported traditional marriage. (Ex. 4-123.) Others have spread

the word via email (e.g., Exs. 4-129, 4-154) and on

sites like Facebook.com (e.g., Ex. 4- 137), Craigslist.com (e.g., Ex. 4-123), and InsiderPages.com

(e.g., Ex. 4-27).

“Though the web site AntiGayBlacklist.com appears

to have been removed, a print-screen of the web site is reproduced in Exhibit 4-190. Multiple media reports confirm

its existence and its purpose. Time magazine, for example,

reported that on ‘AntiGayBlacklist.com, individuals who

gave money toward Prop. 8 are publicized, and readers are

urged not to patronize their businesses or services.’ (Ex.

4-142; see also, e.g., Ex. 4-128 (reporting that the writer

personally ‘looked up the Anti-Gay Blacklist, a collection of

names and affiliations lifted from the public record of political donations to the Yes on 8 campaign’).) Moreover, the

original Anti-Gay Blacklist has been replicated (and is still

available) at several web sites. (See, e.g., Exs. 4-84, 4- 99,

4-103.)” Fact Stmt. ¶ 68 n.11.

Fact Stmt. ¶ 69.

• Other emerging technology is also threatening

the privacy of our political views. A new product

called “Inbox Influence” is now being marketed by

the Sunlight Foundation “that allows you to see the

political contributions of the people and organizations that are mentioned in emails you receive”—simply by dragging the mouse over the

name of any person or entity in the body of the

email. (Ex. 4-27.) The Sunlight Foundation touts its

product:

Inbox Influence provides details on any entity in

the body of the email, plus information on both

the sender of the email and the company from

which it was sent. With it, you can even see how

your friends and family have given to political

campaigns. Perhaps Uncle Joe has more mainstream views after all?

(Ex. 4-26.)

Fact Stmt. ¶ 70.

• Several news reports confirm that the blacklists and other emerging political-exposure technology are being compiled by referencing governmentcompiled political exposure reports. For example,

the Los Angeles Times reported that “activists”

found their targets by “por[ing] though campaign

contribution databases” (Ex. 4-123), and an article

appearing in the San Francisco Chronicle reported

that same-sex marriage advocates “harness[ed]

technology and open-records laws in their efforts” to

“focus on the Mormons” (Ex. 4-60).

Fact Stmt. ¶ 71.

• Those who publish the blacklists have used

the fact that their data is compiled from publicly

available reports as justification for their actions.

Fred Karger—founder of CaliforniansAgainstHate.

com, which has its own blacklist dubbed the “dishonor roll”—was quoted: “People are going to do

what they want, and it’s in this society where you

have campaign reporting that is all public information.” (Ex. 4-123.)

Fact Stmt. ¶ 72.

• The advent of Internet blacklists, together

with the tense and hostile atmosphere surrounding

the debate over same-sex marriage, caused many in

the media (across the political spectrum) to openly

question whether society can handle, civilly, the

instant availability of public records exposing private citizens’ controversial political views. The Los

Angeles Times, for instance, ran an editorial entitled “Prop. 8—Boycott, or Blacklist?” with the subtitle “Shunning businesses is one thing; intimidation

crosses the line.” The Times described the actions of

those who blacklisted and boycotted Prop. 8 donors

as the “vengeful campaign against individuals who

donated to the gay-marriage ban.” “As much as we

abhorred Proposition 8, there’s nothing to cheer

about when private individuals are afraid to donate

to the political campaigns of their choice because it

may cost them their livelihood.” (Ex. 4-115.)

Fact Stmt. ¶ 73.

• Likewise, The New York Times published an

article critical of what it called the “ugly specter of

intimidation”—referring to several documented episodes of threats, harassment, and reprisals:

With tools like eightmaps—and there are bound

to be more of them—strident political partisans

can challenge their opponents directly, one voter

at a time. The results, some activists fear, could

discourage people from participating in the political process altogether.

(Ex. 4-154.)

Fact Stmt. ¶ 74.

The described harassment campaign was facilitated

by the compelled disclosure of contributors to committees supporting Proposition 8. This is clear from the

fact that some John Does who made Prop 8 contributions that were publicly disclosed and suffered harassment were not otherwise known as Prop 8 supporters

than by contributions. But equally important is evidence of persons harassed for being known Prop 8 supporters generally because, if one is likely to be harassed for supporting a cause, disclosure identifies one

as a supporter. The Fact Statement provides evidence

of both situations in (inter alia) summaries of the John

Doe Declarations (with cites to the record). Declaration

samples follow. Doc. 246–1.

Declaration of John Doe #1

John Doe #1 donated funds to ProtectMarriage.com, placed a yard sign in front of his home,

and made phone calls supporting Proposition 8 on

behalf of a church group. He was required to list the

name of his business when he contributed to

ProtectMarriage.com, and, consequently, in October

2008, someone papered the cars in his parking lot

with flyers referencing his support for Proposition

8 and the amount of his contribution. His business

has since been targeted by numerous boycotts, several orchestrated through Facebook. At one point,

someone paid for a sponsored link on Google so that

a search for John Doe #1’s store resulted in a

website referencing his support for Proposition 8

and urging a boycott. Additionally, several negative

reviews of his business were posted on Yelp.com

referencing his donation to Plaintiff. Other websites

have posted similar reviews.

John Doe #1’s business has twice been picketed

and, in November 2008, opponents of Proposition 8

allegedly orchestrated a march intended to culminate in further picketing of John Doe #1’s business.

According to John Doe #1, the protesters have

become quite aggressive and he has received numerous letters and hundreds of emails condemning

his support of the Proposition. Approximately 30-40

people have frequented his business to express

their displeasure with his support of the ballot initiative. John Doe #1 eventually became concerned

that opponents of Proposition 8 would tamper with

his products so he installed sixteen additional security cameras. John Doe #1 contends that he will not

contribute in the future and does not believe his

business should suffer repercussions because of his

personal donation. (Decl. of John Doe 1.)

Fact Stmt. ¶ 143.

Declaration of John Doe #2

John Doe #2 made two donations to ProtectMarriage.com and posted a “Yes on 8” bumpersticker on

his car. Subsequently, in November 2008, someone

distributed a flyer, in the town of his residence, labeling him a bigot. Additionally, the flyer listed his

religious affiliation and the dollar amount of his

contributions. According to John Doe #2, no one but

his family was aware of his financial contribution,

so he believes the information must have derived

from public disclosure by the State. John Doe #2

also claims that he will be unlikely to contribute to

similar causes in the future. (Decl. of John Doe 2.)

Fact Stmt. ¶ 144.

Declaration of John Doe #4

John Doe #4, an attorney who is the sole shareholder in his firm, donated funds to NOMCalifornia. In support of Proposition 8, John Doe #4 wrote

articles supporting Proposition 8 and conducted

lectures to local groups in support of the initiative.

He also held a fundraiser at his home to support

the ProtectMarriage.com - Yes on 8 campaign. A

group of protesters conducted a demonstration at

the entrance to his community and attempted to

hand flyers to guests as they passed through the

gate to the neighborhood.

Over the course of November 13-16, John Doe #4

received approximately 15-20 harassing emails.

One email stated, “hello propogators & litigators

burn in hell.” Exh. B. Another stated, “Congratulations. For your support of prop 8, you have won our

tampon of the year award. Please contact us if you

would like to pick up your prize.” Id. At least one

message referenced the amount of John Doe #4’s

contributions and the amount of an additional

short-term loan John Doe #4 had provided to ProtectMarriage.com.

Finally, John Doe #4’s name, business and the

amount he donated were posted on the website

www.californiansagainsthate.org. (Decl. of John

Doe 4.)

Fact Stmt. ¶ 146.

Declaration of John Doe #5

John Doe #5 contributed funds to ProtectMarriage.com. In November 2008, John Doe #5 received

an email suggesting that his company’s image

would be damaged as a result of his support of

Proposition 8. John Doe #5 now feels threatened

and uneasy knowing that his company could be targeted. (Decl. of John Doe 5.)

Fact Stmt. ¶ 147.

Declaration of John Doe #6

John Doe #6 donated funds to ProtectMarriage.com. He did not engage in any other public support of the initiative. His name and the amount of

his donation was listed on www.californiansagainsthate.com. At the end of November 2008, he

received a postcard allegedly insulting him for supporting the ballot measure. The postcard was typed

and stated in part, “We just hope you are proud of

your participation in this Great Crusade. Just think

of how you have contributed to the economy with

the money you donated! It doesn’t matter that there

are thousands of worthwhile charities that could

have used those funds to feed starving people,

clothe the homeless, and find cures for cancer and

other life-threatening diseases. You must be so

proud!” (Decl. of John Doe 6.)

Fact Stmt. ¶ 148.

Declaration of John Doe #7

John Doe #7 is the senior pastor of a church and

donated funds to ProtectMarriage.com. His family

members displayed bumper stickers on their cars

and displayed yard signs in front of their house.

John Doe #7’s church served as a distribution center for the petitions initially circulated in support of

the Proposition. The church also distributed yard

signs and bumper stickers. Additionally, members

of the church telephoned approximately 275 people

on behalf of ProtectMarriage.com.

John Doe #7 received one phone call at the

church stating that if he was against gay marriage,

he should equally be against divorce. Twice, the

“Yes on 8” bumper stickers were ripped off of his

wife’s car at her place of employment. One of these

times, an anti-Proposition 8 note was left on the

windshield. The typed note stated, “Why would you

want to deprive others of fundamental human

rights? What if a close friend, family member or

co-worker was gay and wanted to get married?

Wouldn’t you want to support the love they have for

their partner and want them to have the same

rights as you and others? Please re-think your position. There are so many more important issues in

this world that need our attention rather than gay

marriage. We need to learn tolerance, acceptance

and love of each other. PLEASE VOTE NO ON

PROP. 8.” Exh. A. Thereafter, he placed bumper

stickers inside of the car windows with tape so that

they could not be removed. (Decl. of John Doe 7.)

Fact Stmt. ¶ 149.

Declaration of John Doe #8

John Doe #8 contributed funds to ProtectMarriage.com, displayed a bumper sticker on his car, and

placed a yard sign in his front yard. John Doe #8

also attended numerous rallies, three press conferences, and spoke at a number of churches in Los

Angeles, Orange County, and San Diego in support

of Proposition 8. Additionally, he participated in

panel discussions involving same-sex marriage. Finally, John Doe #8 attended an election night gathering at which he was photographed. That photograph was published in at least one periodical and

possibly in numerous others.

John Doe #8’s yard sign was twice stolen and

destroyed. After his photograph was published, he

began receiving harassing letters, e-mails and at

least one phone call at his workplace. One such

message stated, “Jesus doesn’t love you! He will

punish you in hell for voting to deny a minority the

same equal rights the rest of us have. You’re as bad

as the racist white people who used to enjoy banning black people the same rights as them. The rest

of the world is disgusted by your actions. Best start

rethinking your position NOW!” Exh. B. He has

also received harassing messages on his MySpace

and Facebook accounts.

As a result, John Doe #8 will be reluctant to contribute to similar causes in the future. (Decl. of

John Doe 8.)

Fact Stmt. ¶ 150.

Declaration of John Doe #9

John Doe #9 attended an election night gathering for supporters of Proposition 8. A photograph

taken of him that night was published in at least

one periodical and may have appeared in numerous

others.

Since publication of this picture, John Doe #9

began receiving harassing messages on his MySpace and Facebook accounts. Many of these contained profanity and one threatened him with assault.

In November 2008, John Doe #9 arrived home to

a harassing message on his answering machine. A

man, in a mocking tone, stated that the people in

the picture with him were “Nazis” and against human rights. Additionally, he stated, “I certainly

hope that someday somebody takes away something

from you and then you’ll realize what a [expletive]

[expletive] you are.”

John Doe #9 also received several harassing

emails and phone calls at work. Some of the messages stated that the individuals knew where he

worked and that they were going to attempt to have

him fired. Additionally, other departments and employees received an email stating that he came

“from a long line of bigots and racists.”

In November 2008, in response to the above incidents, John Doe #9 filed a police report, began coordinating with security to ensure his safety at work,

and changed his home phone number.

As a result, John Doe #9 would think carefully

about the possible consequences of donating to or

publicly supporting a similar cause in the future.

(Decl. of John Doe 9.)

Fact Stmt. ¶ 151.

The ProtectMarriage Fact Statements also summarized harms established by plaintiffs evidence under

the headings of (inter alia) “Death Threats,” Doc. 251

at 5-6 (¶¶ 31-33); “Violence and Threats of Violence,”

id. at 6-7 (¶¶ 34-35); “Chilled Speech,” id. at 7-9

(¶¶ 36-52); “Forced Resignations, Boycotts, and Demands for ‘Hush Money,’” id. at 9-13 (¶¶ 53-65); “AntiReligious Hostility: Vandalism and Overt Threats,” id.

at 16-25 (¶¶ 75-107); “Vandalized Vehicles, Homes,

and Commercial Buildings,” id. at 25 (¶¶ 108-16); “Harassing and Intimidating Telephone Calls,” id. at 26

(¶¶ 117-20); “Emails and Letters,” id. at 26-27 (¶¶ 12127); “Other Acts of Intimidation,” id. at 27-28 (¶¶ 12831); and “Harassment and Intimidation on Campus

and in the Classroom,” id. 29-31 (¶¶ 138-42).

These cannot all be excerpted here, but some further summarized evidence is provided next, starting

with “Death Threats”:

Death Threats

• In California, the mayor of Fresno and a local

pastor received death threats for opposing same-sex

marriage. The threat against the mayor 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.” (Exs. 4-2, 4-3, 4-4.)

Fact Stmt. ¶ 31.

• The same perpetrator also mentioned a “little

surprise” for a local pastor (who voiced support for

traditional marriage) and “his congregation of

lowlifes.” “Keep letting him preach hate and he’ll be

sorry,” the perpetrator threatened. “He will be

meeting his maker sooner than expected.” (Exs. 4-2,

4-3, 4-4.) The death threat against the pastor came

“just days after some one egged [his] home and

church.” (Ex. 4-5.) The threat also stated that anyone in Fresno displaying a Yes on Prop. 8 yard sign

or bumper sticker was “in danger of being shot or

firebombed.” (Exs. 4-2, 4-3, 4-4.) Police took the

threats seriously, launched a criminal investigation, and took extra steps to protect the mayor and

pastor. (Exs. 4-5, 4-6.)

Fact Stmt. ¶ 32.

• In 2008, a small group of Christians entered

the “Castro District”—a predominantly homosexual

neighborhood in San Francisco—to sing hymns and

pray on the public sidewalks, something they had

been doing on a regular basis for years. (Exs. 4-7,

4-8, 4-9, 5-1.) On this occasion, however, their ordinarily peaceful gathering quickly escalated into a

menacing situation. A large crowd of homosexuals

surrounded the group, and one of the homosexuals

hit one of the Christian women in the head with a

book, knocked her to the ground, and then kicked

her while she was lying on the ground. (Exs. 4-7,

4-8, 3-1.) The angry crowd shouted words like “haters” and “bigots” and then “started throwing hot

coffee, soda and alcohol on [them] and spitting (and

maybe even peeing) on [them].” (Ex. 4-8.) Several in

the crowd started taking pictures of the Christians,

threatening, “We’re going to kill you. We know who

you are.” (Ex. 3-2.)

The group was surrounded by several guys with

whistles, who “blasted them inches away from

[their] ears continually.” (Ex. 4-8.) The mob then

became violent, shoving and kicking some members

of the group. Some shouted death threats at the

group’s leader. A man in the Christian group reported that someone in the throng “repeatedly tried

to pull his pants down.” (Ex. 4-7.) Video footage

posted on the Internet shows a band of police officers dressed in riot gear fending off the angry crowd

and escorting the Christians to safety. (Exs. 5-2,

5-3.) A local news source reported that “San Francisco Police officers in riot gear formed a line and

escorted the religious group into a van to safely get

them out of the area.” (Ex. 4-9.)

Fact Stmt. ¶ 33.

The ProtectMarriage record included extensive evidence of economic harm from being identified as a supporter of Prop 8, including by being a disclosed donor.

Doc. 251 at 9-13 (¶¶ 53-65). Excerpts follow:

Forced Resignations, Boycotts, and Demands

for “Hush Money” . . . .

• Some were adamant about retribution. Chad

Griffin, a political advisor to Hollywood executives

said, “A dollar to the yes campaign is a dollar in

support of bigotry, homophobia and discrimination.

There are going to be consequences. Any individual

who has held homophobic views and who has gone

public by writing a check, you can expect to be publicly judged. Many can expect to pay a price for a

long time to come.” (Ex. 4-116.)

Fact Stmt. ¶ 55.

• Scott Eckern was employed as director of the

nonprofit California Musical Theater in Sacramento

before being targeted for personally donating

$1,000 to Prop. 8. Once Mr. Eckern’s support for

traditional marriage was discovered, the theater

was “deluged” with criticism from prominent artists

who supported same-sex marriage. (Ex. 4-117.)

Critics included Marc Shaiman, the composer of

Hairspray, who stated that his work could not be

performed at the theater because of Mr. Eckern’s

support for traditional marriage. (Exs. 4-118; see

also Exs. 4-119, 4-120.) Mr. Eckern eventually resigned. (Exs. 4-117, 4-120, 4-121.)

Fact Stmt. ¶ 56.

• Richard Raddon was the director of the Los

Angeles Film Festival before he landed in the crosshairs of traditional marriage opponents. Mr.

Raddon personally donated $1,500 to Prop 8. As in

the case of Mr. Eckern, once information about Mr.

Raddon’s personal donation was disclosed to the

state and published on the Internet, he became a

target of traditional marriage opponents. (Ex.

4-117; see also Ex. 4-122.) According to an op-ed in

the Wall Street Journal, “A threatened boycott and

picketing of the next festival forced him to resign.”

(Ex. 4-117.)

Fact Stmt. ¶ 57.

• Some donors were targeted for truly insignificant contributions. Marjorie Christoffersen was a

67-year-old restaurant employee who donated $100

to support traditional marriage in California. (Ex.

4-58.) Once information about Ms. Christoffersen’s

$100 donation was published on the Internet, traditional marriage opponents launched a protest

against El Coyote, the restaurant where she worked

—even though the restaurant itself had not made a

donation—prompting the restaurant to offer activists a free brunch and Ms. Christoffersen to offer an

apology. (See Ex. 4-58.) However, when Ms. Christoffersen refused to renounce her support for Prop.

8—like Scott Eckern and Richard Raddon, Marjorie

Christoffersen is a Mormon—the meeting “turned

ugly” and “[b]oisterous street protests erupted that

night.” (Ex. 4-58.) “Hundreds of protesters converged on [the restaurant] . . . , and the picketing

got so heated that LAPD officers in riot gear had to

be called.”5 (Ex. 4-123.) The Los Angeles Times referred to the demonstrators as an “angry mob.” (Ex.

4-124.) “The mob left, but so did the customers” (Ex.

4-124), the Times reported, and Ms. Christoffersen

decided to take a leave of absence to protect the restaurant (which is owned by her mother) and the

other employees who worked there. (Ex. 4-58; see

also Ex. 4-125.)

Fact Stmt. ¶ 58.

C. Harms from Proposition 8 disclosure chilled

speech and association.

From a First Amendment perspective, chilled

speech is a great, irreparable harm. See, e.g., Elrod v.

Burns, 427 U.S. 347, 373 (1976). And there was ample

evidence of speech being chilled by the Prop 8 harassment, which seems to have been an intent of that harassment. Doc. 251 at 7-9 (¶¶ 36-52). Excerpts follow:

Chilled Speech

• A California woman, though “ashamed to admit” it, refused to put a bumper sticker on her car

in support of traditional marriage “because of the

aggression directed towards [her] family and

friends that resulted from their [public] support.”

(Decl. of John Doe 39.)

Fact Stmt. ¶ 36.

• Another woman decided to remove the traditional marriage bumper sticker from her car after

someone keyed her car and let the air out of the

tires while she was in the grocery store. (Decl. of

John Doe 12.)

Fact Stmt. ¶ 37.

• A woman from Michigan who had “no idea

that [her] name would be made public” for making

a donation in support of Prop. 8, admitted that had

she known, she “probably would not have donated”

because it “had been [her] intention to remain anonymous.” (Decl. of John Doe 27.)

Fact Stmt. ¶ 38.

• One father, concerned about the safety of his

children, determined that he will no longer speak

out publicly in support of traditional marriage.

(Decl. of John Doe 30.)

Fact Stmt. ¶ 39.

• Another woman declared she would have to

“seriously consider . . . the safety of [her] family in

the future when deciding to support a cause similar

to Proposition 8.” (Decl. of John Doe 45.)

Fact Stmt. ¶ 40.

• Another supporter will “think twice” about

supporting a similar cause in the future because

she is “worr[ied] that someone could go after [her

family.]” (Decl. of John Doe 19.)

Fact Stmt. ¶ 41.

• One father with young children will consider

donating “a lesser amount under the disclosure

threshold” in the future, or possibly donating to an

organization in such a way that would not require

him to divulge his name. (Decl. of John Doe 23.)

Fact Stmt. ¶ 42.

• And another woman admitted that her support for a similar cause in the future was “negatively affect[ed]” by the fact that her yard sign was

stolen while her neighbors’ signs supporting

same-sex marriage were left untouched throughout

the entire campaign. (Decl. of John Doe 44.)

Fact Stmt. ¶ 43.

• Similarly, a mother in California who witnessed repeated vulgarities at sign-waving events

said she felt nervous and scared, chose not to take

her children with her, and worried about future

violence to her family should she decide to support

a similar cause in the future. (Decl. of John Doe 13.)

Fact Stmt. ¶ 44.

•Another woman concluded that in the future

she would make sure that at least one man was

with each group of sign wavers to help ensure the

safety and protection of the group. (Decl. of John

Doe 20.)

Fact Stmt. ¶ 45.

•One man would not bring children to demonstrations in the future. (Decl. of John Doe 25.)

Fact Stmt. ¶ 46.

• One father, who was “blacklisted” on the

Internet for his financial contribution in support of

traditional marriage, became so concerned for the

safety of his children that he contacted the children’s principal and made it explicit that only he or

his wife were authorized to pick up the children

from school. (Decl. of John Doe 23.)

Fact Stmt. ¶ 47.

• One man reported that although he intends to

support causes similar to Prop. 8 in the future, he

will look for alternative ways to contribute his

money, which may involve finding a way to donate

anonymously or through an organization that

would allow him to keep his personal information

and support from becoming public record. (Decl. of

John Doe 53.)

Fact Stmt. ¶ 48.

• In one community, speech was chilled so significantly that newspaper editors could not convince anyone to submit opinion pieces presenting

countervailing views in the same-sex marriage debate, absent a solemn pledge to keep their names

anonymous. In 2008, the student newspaper at the

University of California, San Francisco decided to

reverse its policy prohibiting anonymous opinion

letters—but only in the case of the same-sex marriage debate. The newspaper was prompted to make

this special exception because it had “printed many

articles from those opposing Prop 8, but hadn’t received any from the other side.” After tracking

down someone with a pro-traditional-marriage

opinion, the newspaper endeavored “to get the

writer to agree to use his name, but he refused, citing fear of harassment.” (Ex. 4-101.)

Fact Stmt. ¶ 49.

• The editors of the paper treated seriously the

decision to break from their standard policy. In a

formal announcement explaining their rationale,

the editors cited a newspaper article by the San

Francisco Chronicle’s Editorial Page Editor John

Diaz that revealed what happened to a gentleman

who had written a letter to the editor pleading with

readers to “[p]lease show respect for democracy.”

(See discussion of Diaz’s article in Plaintiffs’ opening brief at pages 10–11.) The student editors concluded, “In this democracy, the way to rectify errors

at the polls is to convince a majority at a future

election of the rightness of your cause. No matter

how passionately one feels about an issue, it is important to maintain a civil dialogue and a reasoned

debate.” (Ex. 4-101.)

Fact Stmt. ¶ 50.

• One woman reported that she is worried that

she may lose her job as a result of her support for

Prop 8. She wrote two letters to the editor advocating against same-sex marriage. The day after one of

the letters was published, she heard her boss (who

she suspects is a homosexual) conversing with an

openly homosexual man in “[un]complimentary”

tones. And a few weeks later her boss called her in

and told her “he could not guarantee [her] job beyond the current year” and that she would be wise

to “keep [her] options open.” She “suspect[s]” that

her support for Prop. 8 put her job “in jeopardy.”

(Decl. of John Doe 16.)

Fact Stmt. ¶ 51.

• One man received several harassing and

threatening phone messages and emails at work,

some of which indicated that the senders knew

where he worked and that they were going to attempt to have him fired. His co-workers, in fact,

received emails informing them that he came “from

a long line of bigots and racists.” (Decl. of John Doe

9.)

Fact Stmt. ¶ 52.

Thus, the result of these harassing actions was individuals intimidated from engaging in political speech

and association. Though most prevalent in California,

intimidation efforts have been directed at supporters of

traditional marriage across the country.13 Given

The harm to exposed Prop 8 contributors continued for

years. See, e.g., Salvador Rodriguez, Mozilla CEO Brendan

Eich Resigns under Fire for Supporting Prop. 8, L.A. Times

(Apr. 3, 2014), articles.latimes.com/2014/apr/03/business/lafi-tn-mozilla-ceo-resigns-under-fire-prop-8-20140403. The

system of matching people’s contributions and views with

their addresses and other personal information that maximized the Prop 8 flood of threats and harassment has been

replicated, expanded, and made almost instantly deployable. Even journalists are subject to having their personally

identifying information exposed. See, e.g., Reporters Committee for Freedom of the Press, The Dangers of Doxxing

(Spring 2015), www.rcfp.org/journals/news-media-and-lawspring-2015/dangers-doxxing (“doxxing” “involves serious

intimidation, harassment and threats against journalists

that could interfere with their reporting, place them in real

current cancel culture and its enablement by Internet,

social media, and the like, great care must be taken to

protect the freedom of speech and association.

D. This Court and its members have cited and

acted on the ProtectMarriage record.

This Court and its members have cited and acted on

the evidence in ProtectMarriage, making it the quintessential example of threats, harassment, and reprisals

emanating from disclosure of contributors:

∙ In Hollingsworth v. Perry, 558 U.S. 183 (2010), the

Court relied on the record in ProtectMarriage in

staying broadcast of the Prop 8 trial. Id. at 185-86.

∙ In Doe v. Reed, 561 U.S. 186 (2010) (harassment of

traditional-marriage supporters), this Court rejected a facial challenge to Washington’s petitionsigner disclosure but remanded for a possible exemption, id. at 200, and, concurring, Justice Alito

said “widespread harassment and intimidation suffered by supporters of California’s Proposition 8

provides strong support for an as-applied exemption

in the present case,” id. 205.

∙ In Citizens United, 558 U.S. 310, this Court cited

amici briefs about harassment of Proposition 8 supporters, saying it was “cause for concern,” id. at

370, and Justice Thomas relied on the record in

ProtectMarriage in dissenting from upholding contributor disclosure, id. at 480-85 (noting, inter alia,

danger and, ultimately, drive them from the work they

love.”). Ordinary disagreement is now considered to justify

invoking violence. See Peter Boghossian, Welcome to Culture War 2.0: The Great Realignment (Nov. 8, 2019),

americanmind.org/essays/welcome-to-culture-war-2-0).

that “opponents of Proposition 8 compiled [government-disclosed personally-identifying contributor

information] and created Web sites with maps

showing the locations of homes or businesses of

Proposition 8 supporters.”).

Because compelled donor disclosure chills association and collective speech, it always requires strong,

special justification (and also exemptions for organizations with a reasonable probability of threats, harassments, or reprisals). The ProtectMarriage evidence is a

sobering modern demonstration of the alacrity with

which campaigns to harass donors are carried out and

of the chill on donors resulting from such campaigns.

E. The ProtectMarriage record supports requiring strong, special justification for compelled

disclosure of political and ideological association.

The ProtectMarriage record supports requiring

strong, special justification for compelled disclosure of

political and ideological association here. Submitting

Schedules B to California exposes donors’ names and

addresses to state officials and personnel and a serious

risk of public disclosure. Multiplying the places where

Schedules Bs are required amplifies the risk of exposure. Advocacy organizations exist to promote views on

public issues that are universally controversial somewhere. The likelihood of donor information being used

to launch harassment campaigns is heightened by the

increased polarity of opinion in our society and the

ease with which personally identifying information can

be made public and shared to organize harassment

campaigns to chill association and collective speech.

The ProtectMarriage experience teaches that a serious

First Amendment injury can be inflicted by public disclosure of contributors to an advocacy group. So the

compelled donor disclosure must be strongly, specially

justified.

Conclusion

Given the risk to First Amendment association and

speech, the Court should require a strong, special justification of the compelled donor disclosure at issue. Absent such justification, this Court should rule for petitioners in these consolidated cases.

Respectfully submitted,