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 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 Publicly

Exercise First Amendment Rights Affecting

the Election of Public Officials and the

Legislative Process Is Not a Burden Imposed

Upon Donors of Nonprofit Charities. ................ 3

II.

The Rise of the Internet Has Created New

Ways to Inflict Serious and Irreparable

Harm Upon Donors Since the Days of Donor

Disclosure Cases Like NAACP v. Alabama. ..... 6

III. The Harms Suffered by Prop 8 Supporters

Show That Public Threats, Harassment,

Intimidation, and Retaliation Against

Publicly Identified Donors Are Real, Severe,

and Effective....................................................... 9

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

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

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

4. Economic Reprisals .................................. 15

5. Harassment in the Workplace ................. 18

ii

IV. 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. ............. 19

CONCLUSION ......................................................... 21

iii

TABLE OF AUTHORITIES

Cases

Buckley v. Valeo,

424 U.S. 1 (1976) ..............................................4-5

Citizens United v. FEC,

558 U.S. 310 (2010) ..................................... 7, 8, 9

Doe v. Reed,

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

Hollingsworth v. Perry,

558 U.S. 183 (2010) ........................................... 19

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,

549 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).................................. 10

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) ............... 10

Brief of the Institute for Justice as Amicus

Curiae in Support of Petitioners, Doe v.

Reed, 561 U.S. 186 (No. 09-559)........................ 10

Complaint, ProtectMarriage.com—Yes on 8 v.

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

(E.D. Cal. 2009) ................................................. 13

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) ....... 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) ....... 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)........ 18

Petitioners’ Brief, Doe v. Reed,

561 U.S. 186 (No. 09-559).................................. 10

Reply Brief for Appellant, Citizens United,

558 U.S. 310 (No. 08-205).............................. 9, 15

Plaintiffs’ Renewed Notice of Motion and

Motion for Protective Order, Doe v. Reed,

823 F. Supp. 2d 1195 (No. 3:09-cv-05456BHS) ..............................................................13-14

Plaintiffs’ Response to Defendants’ Motion for

Summary Judgment Ex. 13, Doe v. Reed,

823 F. Supp. 2d 1195 (No. 3:09-cv-05456BHS) ................................................................... 14

Other Authorities

Attack Outside of Catholic Church Part of

‘Wave of Intimidation,’ Says Yes on 8,

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

Question 1 Backers Receive Death Threats,

Former Homosexual Leader Says They

Should Not Live in Fear,

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

ABC30, Proposition 8 Email Threats,

KFSN-TV (Nov. 7, 2008) ................................... 13

vi

Associated Press, Threats Made Against Gay

Marriage Opponents in Maine,

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

William N. Eskridge Jr. & Christopher R.

Riano, Marriage Equality: From Outlaws

to In-Laws (2020) ......................................... 11, 12

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

Auralice Graft, Stefaan Verhulst & Andrew

Young, EIGHTMAPS.COM: The Unintended

Negative Consequences of Open Data

(January 2016)................................................. 6, 7

Seth Hemmelgarn, Prop 8 Fight Gets Ugly on

Both Sides,

Bay Area Reporter (Oct. 15, 2008) .................... 15

KCRA TV, Prop. 8 Supporter Allegedly

Attacked in Modesto,

NBC Bay Area (Oct. 15, 2008) .......................... 15

Matthai Kuruvila, Mormons Face Flak for

Backing Prop. 8,

S.F. Chron. (Feb. 10, 2012) ............................... 12

Steve Lopez, Prop. 8 Stance Upends Her Life,

L.A. Times (Dec. 14, 2008) ................................ 18

vii

John R. Lott Jr. and Bradley Smith, Donor

Disclosure Has Its Downsides,

Wall St. J. (Dec. 26, 2008) ................................. 16

Michael Luo, Group Plans Campaign Against

G.O.P. Donors,

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

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. (June 25, 2012) .............................. 16

Thomas M. Messner, The Price of Prop 8,

Heritage Foundation Backgrounder,

No. 2328 (Oct. 22, 2009) ................... 11-12, 15, 16

Cleta Mitchell, Donor Disclosure: Undermining

the First Amendment,

96 Minn. L. Rev. 1755 (2012) ............................ 10

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

L.A. Times (Dec. 10, 2008) ................................ 16

Chelsea Phua, Mormon Church in Orangevale

Vandalized in Wake of Prop. 8 Vote,

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

Valerie Richardson, Pestered Prop 8 Donors

File Suit,

Wash. Times (March 23, 2009) ......................... 11

viii

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. 7, 2009) .............................. 9, 13

Andrew Sullivan, The Hounding of a Heretic,

The Dish (April 3, 2014) .................................... 17

Andrew Sullivan, Dissents of The Day,

The Dish (April 4, 2014) .................................... 18

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

John Wildermuth, Mozilla’s Prop. 8 Uproar

Reveals Much About Tech, Gay Rights,

SFGate (Apr. 11, 2014) ...................................... 17

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 a legal defense of

Prop 8 through public interest litigation.3 Just like

Petitioners Americans for Prosperity Foundation

(“AFPF”) and Thomas More Law Center, the Defense

Fund is also prohibited from undertaking electionrelated advocacy.

The Defense Fund’s financial contributors

naturally include some donors who had publicly

supported the Prop 8 election campaign. But as

relevant to the issues presented in these cases, the

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. 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

Defense Fund also received post-election charitable

contributions from other donors who had not

contributed to the political campaign for fear of the

risks of public disclosure. These non-political donors

agreed to financially support the Defense Fund’s work

on the solemn assurance that their charitable

contributions would not be publicly disclosed.

Much like Petitioners, the Defense Fund is facing

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

identities of its largest donors. This puts the Defense

Fund—and apparently all other charities that

fundraise in California—in a quandary. If the Defense

Fund refuses to disclose its donors’ protected

identities, it faces harsh enforcement action and

penalties including revocation of its California taxexempt status. On the other hand, if the Defense

Fund releases the information, it betrays 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 highlight 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 when

publicly exercising First Amendment rights to

influence elections and the legislative process, it is not

a requirement imposed upon donors when financially

supporting nonprofit charities.

Recent events in which publicly identified donors

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 that were not

even imagined in the days of donor disclosure cases

like NAACP v. Alabama.

The well-documented and judicially acknowledged

history of severe harm caused by publicly disclosing

the identities of supporters of California’s Prop 8

illustrates the real and serious risks of harassment,

intimidation, and retaliation that donors face when

supporting controversial causes.

ARGUMENT

I.

The “Civic Courage” Required to Publicly

Exercise

First

Amendment

Rights

Affecting the Election of Public Officials

and the Legislative Process Is Not a Burden

Imposed Upon Donors of Nonprofit

Charities.

“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 it

has never been required of donors to financially

4

support the

organizations.

charitable

work

of

nonprofit

A donor’s understandable 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.

An individual’s willingness to tolerate “harsh

criticism” and other reprisals for 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 to

advance 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 Banc (Ikuta. S.,

dissenting), AFPF App. 82a, citing Buckley v. Valeo,

5

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, 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 importance of 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

exacting scrutiny, under which narrow tailoring is

excused and the burden of civic courage is heaped

4 To the contrary, civil and criminal statutes normally shield

charitable donors’ identities from public disclosure to ensure

their rights of anonymity and 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

upon nonprofit charities and their supporters,

remains unsupported.

II.

The Rise of the Internet Has Created New

Ways to Inflict Serious and Irreparable

Harm Upon Donors Since the Days of

Donor Disclosure Cases Like NAACP v.

Alabama.

The rise of the Internet and our evolution into a

high-information society have created new and

serious risks of harm today that were not even

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

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

disclosure policies, originally based on ideas of

transparency and accountability, now have

insufficient safeguards for privacy, “given that today’s

data analysis and computation capabilities could not

have been predicted to reach the current level even

throughout the late 1990s and early 2000s.”5

Donor disclosure laws largely originated before

the Internet, when donors’ information resided “in

government filing cabinets and would largely be

inaccessible to many people.” Graft et al., supra note

5, at 14. As explained by Kim Alexander, president of

the California Voter Foundation and a pioneer of

electronic

donor

disclosure

laws:

“ ‘Nobody

anticipated when the laws were initially written that

reports were going to be widely accessible to

everybody in the world.’ . . . ‘Identity theft was not an

Auralice Graft, Stefaan Verhulst & Andrew Young,

EIGHTMAPS.COM: The Unintended Negative Consequences of

Open Data 4 (January 2016), https://odimpact.org/files/casestudies-us-eightmaps.pdf.

5

7

issue at the time. It didn’t matter so much if people

knew your address – there was not much they could

do with it. Now you can do things like mash it up with

other data – which is what happened with

Eightmaps,’ ” ibid., referring to the online maps

targeting the locations of homes and businesses of

Prop 8 supporters.

This “mashing up of publicly accessible and

manually collected data” from other sources to create

online tools targeting donors for retaliation creates a

whole new “chilling effect.” Id. at 11. “While

individual-level voter and political donor data has

been available to the public for years, mashups were

far from the norm even late into the [20]00s.” Ibid. As

Alexander said: “ ‘This idea of giving people a map to

someone’s home is a way of inviting widespread

attack on that person. When you put that on the

Internet, you are literally providing an invitation or

suggestion that people go to this person’s home and

confront them. This was threatening on an

exponential level.’ ” Ibid.

The early signs of the new and dangerous ways in

which the “mashing up” of publicly disclosed donor

information with other data sources can lead to

donors being “blacklisted, threatened, or otherwise

targeted for retaliation” are described in Citizens

United v. FEC, 558 U.S. 310, 480-85 (2010) (Thomas,

J., concurring in part and dissenting in part).

Recounting the many examples of harm suffered by

Prop 8 supporters whose donations were publicly

reported (including online maps targeting their

homes and businesses, property damage, threats of

physical violence or death, forced resignations,

boycotts, angry mobs, etc.), Justice Thomas observed

8

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 individual donors, “hoping to

create a chilling effect that will dry up contributions.”

Ibid.6

This chilling effect flows from the abuse of publicly

disclosed donor data to prevent people from speaking,

in that it “enable[s] 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. That

is why the highest form of proactive judicial scrutiny

should apply to aggressive disclosure mandates that

tolerate “death threats, ruined careers, damaged or

defaced property, or pre-emptive and threatening

6 Citing

Michael Luo, Group Plans Campaign Against G.O.P.

Donors, N.Y. Times (Aug. 7, 2008), https://www.nytimes.com/

2008/08/08/us/politics/08donate.html.

9

warning letters as the price for engaging in core

political speech, the primary object of First

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

III. The Harms Suffered by Prop 8 Supporters

Show That Public Threats, Harassment,

Intimidation, and Retaliation Against

Publicly Identified Donors Are Real,

Severe, and Effective.

The vilification of individuals who take a public

stand on controversial issues can be severe. Without

doubt, 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”). In particular, the

events surrounding Prop 8 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 issues.

In what the New York Times called the “ugly

specter of intimidation,”7 publicly identified donors

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

Edged Sword, N.Y. Times, Feb. 7, 2009, https://www.nytimes.

com/2009/02/08/business/08stream.html

[https://web.archive.

org/web/20201211201429/https://www.nytimes.com/2009/02/08/

business/08stream.html].

10

and other supporters of Prop 8 were “subject to widespread

political

reprisal,

stalking,

assault,

intimidation, employment discrimination, economic

and other forms of retaliation.” 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). “[O]rganizations, including churches, that had

supported the measure were attacked, vandalized,

and targeted for revenge.” Ibid. These real-world

harms are well documented. See, e.g., Brief of Amicus

Curiae Institute for Marriage and Public Policy in

Support of Defendant-Intervenors, 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, 10-11, 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”).

The end goal of these widespread attacks on Prop

8 supporters was to create sufficient fear to supress

their continued exercise of First Amendment rights.

Fred Karger, who launched Californians Against

Hate to organize boycotts and other retaliation

11

against Prop 8 donors, openly acknowledged that the

strategy was “intimidation.”8 “ ‘One of my goals was

to make it socially unacceptable to make these megadonations.’ . . . ‘I want them to think twice before

writing that check.’ ” Richardson, supra note 8. Sadly,

Mr. Karger’s zeal for this tactic appears to be payback

for the intimidation he suffered when public

disclosure of his $100 donation against a controversial

ballot measure in 1978 “nearly cost him his job.” Ibid.

He said: “ ‘It was a very scary time. Gay people have

been going through this for decades. Now our

opponents are getting a taste of what it’s like.’ ” Ibid.

The targeting of Prop 8 supporters for retaliation

and intimidation proved to be effective. In the wake

of the backlash against Prop 8 donors, organizations

that had supported the measure suffered steep drops

in donations. “This reflected a growing concern that

contributors . . . would encounter pushback, shaming,

intimidation, and even retaliation . . . .” William N.

Eskridge Jr. & Christopher R. Riano, Marriage

Equality: From Outlaws to In-Laws 489-90 (2020).

Further detail of the harassment and reprisals

experienced by Prop 8 donors include:

1. Vandalism

Many Prop 8 supporters were targeted for

vandalism to their homes and property,9 as well as to

8 Valerie Richardson, Pestered Prop 8 Donors File Suit, Wash.

Times (March 23, 2009), https://www.washingtontimes.com/

news/2009/mar/23/pestered-prop-8-donors-file-suit.

9 See, e.g., Thomas M. Messner, The Price of Prop 8, Heritage

Foundation Backgrounder, No. 2328, at 3-4 & nn.8, 12, 15,

12

cars and other vehicles. See Messner supra note 9, at

3 & nn.9-12, 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.10

After voters approved Prop 8, many houses of

worship were also targeted.11 In just the ten days

after the election, at least seven Mormon houses of

worship in Utah and ten in California were

vandalized. See Eskridge & Riano, supra at 679.

2. Death Threats

Prop 8 supporters were also targeted with death

threats. One such threat was made by email against

the mayor of the City of Fresno stating, “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

17-18 (Oct. 22, 2009), http://s3.amazonaws.com/thf_media/2009/

pdf/bg2328.pdf

10 See Matthai Kuruvila, Mormons Face Flak for Backing Prop.

8, S.F. Chron. (Feb. 10, 2012), https://www.sfgate.com/bayarea/

article/Mormons-face-flak-for-backing-Prop-8-3264077.php.

11 See Jennifer Garza, Feds Investigate Vandalism at Mormon

Sites, Sacramento Bee (Nov. 14, 2008), http://www.sacbee.com/

crime/story/1399018.html

[https://web.archive.org/web/20201

112021134/https://web.archive.org/web/20090222214402/http://

www.sacbee.com/crime/story/1399018.html]. See also Chelsea

Phua, Mormon Church in Orangevale Vandalized in Wake of

Prop. 8 Vote, Sacramento Bee (Nov. 9, 2008), http://www.sac

bee.com/101/story/1382472.html [https://web.archive.org/web/20

081112043118/http://www.sacbee.com/101/story/1382472.html].

13

banner in front of their house or bumper sticker on

the car in Fresno is in danger of being shot or

firebombed.”12

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

F. Supp. 2d 921 (N.D. Cal. 2010) (No. 3:09-CV-2292VRW). The New York Times also reported that even

donors to other groups supporting Prop 8 also

received death threats. Stone, supra note 7.

Newsweek, in a story about harassment involving

Referendum 71 (a controversial Washington State

ballot measure like Prop 8), 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.”13 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

12 ABC30, 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.

13 Krista Gesaman, Threats, Legal Action in Washington’s Gay-

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

newsweek.com/threats-legal-action-washingtons-gay-marriagedebate-211642.

14

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 ¶ 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 that state’s legislature, the

headquarters of a group that supported the ballot

measure received a voicemail stating: “ ‘You will be

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

be dead.’ ”14

3. Physical Violence

Other incidents of retaliation against Prop 8

supporters involved personal physical violence. For

example, a Prop 8 supporter who was distributing

campaign signs was taken to the hospital for 16

Associated Press, Threats Made Against Gay Marriage

Opponents in Maine, Bangor Daily News (Nov. 9, 2009),

https://bangordailynews.com/2009/11/09/politics/threats-madeagainst-gay-marriage-opponents-in-maine. See also, Question 1

Backers Receive Death Threats, Former Homosexual Leader Says

They Should Not Live in Fear, Catholic News Agency (Nov. 14,

2009),

https://www.catholicnewsagency.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).

14

15

stitches after being punched in the face by an attacker

attempting to take and destroy the signs.15

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

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.

Messner, supra note 9, 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. Id. at 10

& nn.84-88.

4. Economic Reprisals

Publicly identified Prop 8 supporters also suffered

“widespread economic reprisals.” Reply Brief for

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

08-205). Employers of Prop 8 supporters were

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_out

side_of_catholic_church_part_of_wave_of_intimidation_says_

yes_on_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=2394

06&pf=1; and KCRA TV, Prop. 8 Supporter Allegedly Attacked

in Modesto, NBC Bay Area (Oct. 15, 2008), https://www.nbcbay

area.com/news/politics/Prop_8_Supporter_Allegedly_Attacked_

In_Modesto.html.

15

16

targeted, resulting in some of them having to resign,

take a leave of absence, or otherwise lose professional

opportunities.16

In another example, a high-level staff member of

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

criticism involving his support of Prop 8.17 The

director of the nonprofit California Musical Theater

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

resign after other artists complained to his

employer.18 And the director of the Los Angeles Film

Festival was forced to resign after it was reported he

gave $1,500 to Prop 8, causing opponents to threaten

to boycott and picket the next festival. Lott & Smith,

supra note 18.

16 See Opinion, Prop. 8 – Boycott, or Blacklist?, L.A. Times (Dec.

10, 2008), https://www.latimes.com/news/opinion/editorials/laed-boycott10-2008dec10-story.html (stating that “postelection

boycott efforts” by “defenders of same-sex marriage” escalated

into “a vengeful campaign against individuals who donated” in

support of Prop 8, “usually in the form of pressure on their

employers”). See additional sources in Messner, supra note 9, 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. (June 25, 2012), https://

www.sfgate.com/bayarea/matier-ross/article/Prop-8-aid-putsParamount-board-member-on-hold-3202211.php (reporting that

donation to Prop 8 “appears to have cost” the donor “his seat on

the board that oversees Oakland’s historic Paramount Theatre”).

17 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.

18 John R. Lott Jr. & Bradley Smith, Donor Disclosure Has Its

Downsides, Wall St. J. (Dec. 26, 2008), www.wsj.com/articles/

SB123025779370234773.

17

Even years later, donors who supported Prop 8

continue to suffer economic reprisals. In 2014,

Brendan Eich, chief executive of Mozilla (the maker

of Firefox), was forced to resign just days after taking

the job, under sharp criticism for making a $1,000

donation in 2008 to support Prop 8.19 Even some in

the lesbian, gay, bisexual, and transgender

community criticized such unfair punishment, calling

the affair a “witch hunt.”20

Andrew Sullivan, an influential gay activist and

commentator, slammed the attacks on Mr. Eich.

Wildermuth, supra note 20. “Will he now be forced to

walk through the streets in shame? . . . The whole

episode disgusts me – as it should disgust anyone

interested in a tolerant and diverse society.”21 He

rightly observed that “hounding our opponents” with

“fanaticism” is all “about intimidating the free speech

of others.” Sullivan, supra note 21. “When people’s

lives and careers are subject to litmus tests, and fired

if they do not publicly renounce what may well be

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-mozil

la-ceo-resigns-under-fire-prop-8-20140403 [https://web.archive.

org/web/20180308113812/https://articles.latimes.com/2014/apr/

03/business/la-fi-tn-mozilla-ceo-resigns-under-fire-prop-8-2014

0403].

19

John Wildermuth, Mozilla’s Prop. 8 Uproar Reveals Much

About Tech, Gay Rights, SFGate (Apr. 11, 2014),

https://www.sfgate.com/politics/article/Mozilla-s-Prop-8-uproarreveals-much-about-tech-5393875.php.

20

21 Andrew Sullivan, The Hounding of a Heretic, The Dish (April

3, 2014, 5:03 PM), http://dish.andrewsullivan.com/2014/04/03/

the-hounding-of-brendan-eich.

18

their sincere conviction, we have crossed a line. This

is McCarthyism applied by civil actors.”22

5. Harassment in the Workplace

Many of Prop 8’s publicly identified supporters

who run businesses “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.

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

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

For example, a woman who 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.”23 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. Lopez, supra note 23.

22 Andrew Sullivan, Dissents of The Day, The Dish (April 4, 2014,

12:05 PM), http://dish.andrewsullivan.com/2014/04/04/dissentsof-the-day-63.

23 Steve Lopez, Prop. 8 Stance Upends Her Life, L.A. Times (Dec.

14, 2008), https://www.latimes.com/archives/la-xpm-2008-dec14-me-lopez14-story.html [https://web.archive.org/web/2020121

0222702/https://www.latimes.com/archives/la-xpm-2008-dec-14me-lopez14-story.html].

19

IV. 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.

In 2010, this Court was asked to stay the

broadcast of the federal trial in San Francisco over

Prop 8. In evaluating the likelihood that irreparable

harm would result from the denial of a stay, the Court

looked to the uncontroverted evidence that Prop 8’s

advocates “have been subject to harassment as a

result of public disclosure of their support.”

Hollingsworth v. Perry, 558 U.S. 183, 185 (2010) (per

curiam). Donors supporting Prop 8 had received death

threats, envelopes containing white powder, and

confrontational phone calls and e-mail messages from

opponents of Prop 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

pro-Prop 8 businesses and urging others to boycott

them in retaliation, ibid., and numerous instances of

vandalism and physical violence against those

identified as Prop 8 supporters. Id. at 185-86. 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, warranting a stay of the

broadcast. Id. at 195-96.

Before the instant consolidated cases reached this

Court for review, the detailed information above (and

more) about the retaliation and harm inflicted upon

supporters of Prop 8 was provided to the Ninth Circuit

20

by the parties and amici alike. Notably, in addressing

the “actual burden” on First Amendment rights

imposed by 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.

Despite this, on the question whether disclosure of

confidential Schedule B information may expose the

Petitioners’ donors to threats, harassment, and

reprisals, the panel’s de novo review of the evidence

was actually 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. 31a, 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 or the

Law Center in particular.” AFPF App. 31a 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 donors to other similar organizations, the panel

21

side-stepped the issue and stopped short of concluding

that public disclosure of Schedule B information

would likely subject Petitioners’ contributors, in

particular, to retaliation. AFPF App. 34a.

The Ninth Circuit’s discounted treatment of this

issue contributes heavily to the overall error

warranting reversal. Its refusal to acknowledge the

strong likelihood of retaliation facing Petitioners and

their donors stands starkly against both the evidence

at trial and this Court’s unequivocal recognition of the

grave risks faced by donors to controversial causes,

including Prop 8 supporters, Hollingsworth v. Perry,

supra.

CONCLUSION

The real harms suffered by AFPF and the Thomas

More Law Center (as well as the 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 nonprofits that maintain

confidential donor information (especially those

engaged in controversial 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 donor disclosure cases like NAACP v.

Alabama were decided. The outcome of these

consolidated cases will create real consequences.

Donors and the charities they support will suffer

tangible harm if the California Attorney General’s

unlawful practice is allowed to stand. The decisions of

the Ninth Circuit should be reversed.

22

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

March 1, 2021