Perry et al v. Schwarzenegger et al

Filing 434

AMENDED OPINION of USCA (far, COURT STAFF) (Filed on 1/12/2010)

Perry et al v. Schwarzenegger et al

Doc. 434

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F IL E D
FOR PUBLICATION U N IT E D STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
JAN 04 2010
MOLLY C. DWYER, CLERK
U . S . C O U R T OF APPE A L S

K R IS T IN M. PERRY; SANDRA B. S T IE R ; PAUL T. KATAMI; JEFFREY J. Z A R R IL L O , P lain tiffs - Appellees,

N o . 09-17241 D .C . No. 3:09-cv-02292-VRW

A M E N D E D OPINION an d C IT Y AND COUNTY OF SAN F R A N C IS C O , P l a in t i f f - in t e r v e n o r , v. A R N O L D SCHWARZENEGGER, in his o f f ic ia l capacity as Governor of California; E D M U N D G. BROWN, Jr., in his official c ap a c ity as Attorney General of California; M A R K B. HORTON in his official cap acity as Director of the California D ep artm en t of Public Health & State R eg istrar of Vital Statistics; LINETTE S C O T T , in her official capacity as Deputy D irecto r of Health Information & Strategic P lan n in g for the California Department of P u b lic Health; PATRICK O'CONNELL, in his official capacity as Clerk-Recorder fo r the County of Alameda; DEAN C. L O G A N , in his official capacity as R eg istrar-R eco rd er/C o u n ty Clerk for the C o u n ty of Los Angeles,

Dockets.Justia.com

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D e f e n d a n ts , an d D E N N IS HOLLINGSWORTH; GAIL J. K N IG H T ; MARTIN F. GUTIERREZ; H A K -S H IN G WILLIAM TAM; MARK A . JANSSON; P R O T E C T M A R R IA G E .C O M - YES ON 8 , A PROJECT OF CALIFORNIA RENEW AL, D e f e n d a n t- in te r v e n o r s A p p e lla n ts . K R IS T IN M. PERRY; SANDRA B. S T IE R ; PAUL T. KATAMI; JEFFREY J. Z A R R IL L O , P lain tiffs - Appellees, an d O U R FAMILY COALITION; L A V E N D E R SENIORS OF THE EAST B A Y ; PARENTS, FAMILIES, AND F R IE N D S OF LESBIANS AND GAYS, CITY AND COUNTY OF SAN F R A N C IS C O , P la in tif f - in te r v e n o r s A p p e lle e s , v. A R N O L D SCHWARZENEGGER; N o . 09-17551 D .C . No. 3:09-cv-02292-VRW

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E D M U N D G. BROWN, Jr.; MARK B. H O R T O N ; LINETTE SCOTT; PATRICK O 'C O N N E L L ; DEAN C. LOGAN, D e f e n d a n ts , an d D E N N IS HOLLINGSWORTH; GAIL J. K N IG H T ; MARTIN F. GUTIERREZ; H A K -S H IN G WILLIAM TAM; MARK A . JANSSON; P R O T E C T M A R R IA G E .C O M - YES ON 8 , A PROJECT OF CALIFORNIA RENEW AL, D e f e n d a n t- in te r v e n o r s A p p e lla n ts . A p p e al from the United States District Court fo r the Northern District of California V au g h n R. Walker, Chief District Judge, Presiding A rg u ed and Submitted December 1, 2009 P asad en a, California F iled December 11, 2009 A m ended B efo re: K im McLane Wardlaw, Raymond C. Fisher and Marsha S. Berzon, C ircu it Judges. O p in io n by Judge Fisher R A Y M O N D C. FISHER, Circuit Judge:

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P ro p o sitio n 8 amended the California Constitution to provide that only m arriag e between a man and a woman is valid or recognized in California. Two sam e-sex couples filed this action in the district court alleging that Proposition 8 v io lates the Due Process and Equal Protection Clauses of the Fourteenth A m e n d m e n t. The official proponents of Proposition 8 ("Proponents") intervened to defend the suit. Plaintiffs served a request for production of documents on P r o p o n e n ts , seeking, among other things, production of Proponents' internal cam p aig n communications relating to campaign strategy and advertising. Proponents objected to disclosure of the documents as barred by the First A m en d m en t. In two orders, the district court rejected Proponents' claim of First A m e n d m e n t privilege. Proponents appealed both orders and, in the alternative, p etitio n ed for a writ of mandamus directing the district court to grant a protective o rd er. We granted Proponents' motion for stay pending appeal. We hold that the exceptional circumstances presented by this case warrant issu an ce of a writ of mandamus. The freedom to associate with others for the co m m o n advancement of political beliefs and ideas lies at the heart of the First A m en d m en t. Where, as here, discovery would have the practical effect of d isco u rag in g the exercise of First Amendment associational rights, the party seek in g such discovery must demonstrate a need for the information sufficient to 4

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o u tw e ig h the impact on those rights. Plaintiffs have not on the existing record c ar rie d that burden in this case. We therefore grant Proponents' petition and direct th e district court to enter an appropriate protective order consistent with this o p in io n . I. BACKGROUND In November 2008, California voters approved Proposition 8, an initiative m easu re providing that "[o]nly marriage between a man and a woman is valid or r ec o g n iz ed in California." Cal. Const. art. I, § 7.5. The California Supreme Court h as upheld Proposition 8 against several state constitutional challenges. Strauss v. H o rto n , 207 P.3d 48, 63-64 (Cal. 2009). Plaintiffs, two same-sex couples p ro h ib ited from marrying, filed this 42 U.S.C. § 1983 action alleging "that Prop. 8, w h ich denies gay and lesbian individuals the right to marry civilly and enter into th e same officially sanctioned family relationship with their loved ones as h e te ro s e x u a l individuals, is unconstitutional under the Due Process and Equal P r o te ctio n Clauses of the Fourteenth Amendment to the United States C o n stitu tio n ." Compl. ¶¶ 5, 7. They alleged among other things that "[t]he d isad v an tag e Prop. 8 imposes on gays and lesbians is the result of disapproval or a n im u s against a politically unpopular group." Id. ¶ 43. Defendants are a number o f state officials responsible for the enforcement of Proposition 8, including the 5

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G o v ern o r and the Attorney General. Id. ¶¶ 13-19. Plaintiffs seek declaratory and in ju n ctiv e relief. Id. ¶ 8. A fter the Attorney General declined to defend the constitutionality of P r o p o s itio n 8, the district court granted a motion by Proponents ­ the official p r o p o n e n ts of Proposition 8 and the official Proposition 8 campaign committee ­ to intervene as defendants. P la in tif fs served requests for production of documents on Proponents under F ed eral Rule of Civil Procedure 34. Plaintiffs' eighth request sought: A ll versions of any documents that constitute co m m u n icatio n s referring to Proposition 8, between you a n d any third party, including, without limitation, members o f the public or the media. T h e parties understand this request as encompassing, among other things, P ro p o n en ts' internal campaign communications concerning strategy and m e s s a g in g . P ro p o n en ts objected to the request as irrelevant, privileged under the First A m en d m en t and unduly burdensome and filed a motion for a protective order. They argued that their internal campaign communications, including draft versions o f communications never actually disseminated to the electorate at large, were p r iv ile g e d under the First Amendment. They offered evidence that the disclosure

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o f internal strategy documents would burden political association rights by d isco u rag in g individuals from participating in initiative campaigns and by muting th e exchange of ideas within those campaigns. They asserted that the documents p la in tif fs sought were irrelevant to the issues in this case, and even if they were relev an t, the First Amendment interests at stake outweighed plaintiffs' need for the in f o r m a tio n . P lain tiffs opposed the motion for protective order. They argued that their r eq u e st was reasonably calculated to lead to the discovery of admissible evidence co n cern in g the purpose of Proposition 8, as well as evidence concerning the ratio n ality and strength of Proponents' purported state interests for Proposition 8. They disputed Proponents' contention that any of the documents requested were p riv ileg ed other than with respect to the names of rank-and-file members of the cam p aig n , which they agreed to redact. In an October 1, 2009 order, the district court granted in part and denied in p art Proponents' motion for a protective order. The court denied Proponents' c la im s of privilege.1 The court also determined that plaintiffs' request was

The district court also observed that Proponents had failed to produce a p riv ileg e log required by Federal Rule of Civil Procedure 26(b)(5)(A)(ii). We ag ree that some form of a privilege log is required and reject Proponents' c o n te n tio n that producing any privilege log would impose an unconstitutional ( c o n tin u e d ...) 7

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"reaso n ab ly calculated to lead to the discovery of admissible evidence" regarding v o ter intent, the purpose of Proposition 8 and whether Proposition 8 advances a le g itim a te governmental interest. The court said that "communications between p r o p o n e n ts and political consultants or campaign managers, even about messages co n tem p lated but not actually disseminated, could fairly readily lead to admissible ev id en ce illuminating the messages disseminated to voters."2 F o llo w in g the court's October 1 order, Proponents submitted a sample of d o c u m e n ts potentially responsive to plaintiffs' document request for in camera rev iew , asserting that the documents were both irrelevant and privileged. In a

(...continued) b u rd en .
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The court indicated that plaintiffs' request was ap p ro p riate to the extent it calls for (1) communications by an d among proponents and their agents (at a minimum, S ch u b ert Flint Public Affairs) concerning campaign strateg y and (2) communications by and among proponents an d their agents concerning messages to be conveyed to v o te rs , . . . without regard to whether the messages were actu ally disseminated or merely contemplated. In addition, co m m u n icatio n s by and among proponents with those who assu m ed a directorial or managerial role in the Prop 8 campaign, like political consultants or P r o te ctM a rr ia g e .c o m 's treasurer and executive committee, am o n g others, would appear likely to lead to discovery of a d m is sib le evidence. 8

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N o v e m b e r 11, 2009 order following that review, the district court again rejected P r o p o n e n ts ' argument that their internal campaign communications were p riv ileg ed under the First Amendment: P ro p o n en ts have not . . . identified any way in which the . . . p riv ileg e could protect the disclosure of campaign c o m m u n ic atio n s or the identities of high ranking members o f the campaign. . . . If the . . . privilege identified by p ro p o n en ts protects anything, it is the identities of rankan d -file volunteers and similarly situated individuals. A p p lyin g the usual discovery standards of Federal Rule of Civil Procedure 26, the c o u r t determined that documents falling into the following categories were reaso n ab ly likely to lead to the discovery of admissible evidence: documents r ela tin g to "messages or themes conveyed to voters through advertising or direct m essag in g ," documents dealing "directly with advertising or messaging strategy an d themes" and documents discussing voters' "potential reactions" to campaign m essag es. The court ordered production of 21 of the 60 documents submitted for r e v ie w . P ro p o n en ts appealed from the October 1 and November 11 orders and, in the altern ativ e, petitioned for a writ of mandamus. We granted Proponents' motion for a stay pending appeal. We now grant the petition for a writ of mandamus. II. JURISDICTION

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P r o p o n e n ts contend that we have jurisdiction on two bases. First, they assert th at the district court's orders are appealable under the collateral order doctrine. Second, they have petitioned for issuance of a writ of mandamus. W h ile this appeal was pending, the Supreme Court decided Mohawk I n d u s tr ie s, Inc. v. Carpenter, 558 U.S. -- (Dec. 8, 2009), holding that discovery o rd ers denying claims of attorney-client privilege are not appealable under the c o lla te ra l order doctrine. After Mohawk, it is uncertain whether the collateral order d o c tr in e applies to discovery orders denying claims of First Amendment privilege, as we shall explain. Ultimately, we do not resolve the question here. Given the u n c er ta in ty , we have decided instead to rely on mandamus to review the district c o u r t's rulings. We have repeatedly exercised mandamus review when confronted w ith extraordinarily important questions of first impression concerning the scope o f a privilege. As this case falls within that small class of extraordinary cases, we e x e rc is e our supervisory mandamus authority here. A . Collateral Order Doctrine W e have jurisdiction to review "final decisions of the district courts." 28 U .S .C . § 1291. Under the collateral order doctrine, a litigant may appeal "from a n arro w class of decisions that do not terminate the litigation, but must, in the in te re st of `achieving a healthy legal system,' nonetheless be treated as `final.'" 10

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D ig ita l Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867 (1994) (quoting C o b b le d ic k v. United States, 309 U.S. 323, 326 (1940)). To be immediately a p p e a la b le , a collateral decision "must conclusively determine the disputed q u estio n , resolve an important issue completely separate from the merits of the a ctio n , and be effectively unreviewable on appeal from a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978). T h e first prong is easily satisfied in this case. Taken together, the October 1 an d November 11 discovery orders conclusively determined the scope of the First A m en d m en t privilege. The district court concluded that the privilege does not e x te n d to internal campaign communications and that it is limited to the disclosure o f identities of rank-and-file members and other similarly situated individuals. Furthermore, in the November 11 order, the district court conclusively determined th at Proponents were required to produce 21 documents that, according to the co u rt, were not privileged. See United States v. Griffin, 440 F.3d 1138, 1141 (9th C ir . 2006) ("[T]he district court's order `conclusively determine[s] the disputed q u e stio n ' whether the government is entitled to read the communications between G r if fin and his wife for which the [marital communications] privilege had been c la im e d . " ) .

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T h e second prong is also satisfied. The overall scope of the First A m en d m en t privilege is a question of law that is entirely separate from the merits o f the litigation. In theory, the application of the privilege to plaintiffs' specific d is co v e ry requests has some overlap with merits-related issues, such as whether p lain tiffs' substantive claims are governed by strict scrutiny or rational basis r ev ie w and whether plaintiffs may rely on certain types of evidence to prove that P ro p o sitio n 8 was enacted for an improper purpose. We need not, and do not, d elv e into those questions in this appeal, however. We assume without deciding th a t the district court's rulings on those questions are correct. There is, therefore, n o "overlap" between the issues we must decide in this appeal and the "factual and le g a l issues of the underlying dispute." Van Cauwenberghe v. Biard, 486 U.S. 5 1 7 , 529 (1988). I t is the third prong that poses the most difficult question. Under Mohawk, th e third prong turns on whether rulings on First Amendment privilege are, as a c la ss , effectively reviewable on appeal from final judgment ­ i.e., "whether d e la yin g review until the entry of final judgment `would imperil a substantial p u b lic interest' or `some particular value of a high order.'" Mohawk, 558 U.S. at -- , slip op. 6 (quoting Will v. Hallock, 546 U.S. 345, 352-53 (2006)). In Mohawk, th e Court concluded that this prong was not satisfied with respect to the class of 12

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ru lin g s addressing invocation of the attorney-client privilege during discovery. This was so because the typical ruling on the attorney-client privilege will involve o n ly "the routine application of settled legal principles." Id. at 8. Denying im m ed iate appellate review would have no "discernible chill" because "deferring r ev ie w until final judgment does not meaningfully reduce the ex ante incentives for f u ll and frank consultations between clients and counsel." Id. There being no d iscern ib le harm to the public interest, the remaining harm from an erroneous ru lin g (the harm to the individual litigant of having confidential communications d is clo s e d ) could be adequately, if imperfectly, remedied by review after final ju d g m e n t: "Appellate courts can remedy the improper disclosure of privileged m a te ria l in the same way they remedy a host of other erroneous evidentiary r u lin g s : by vacating an adverse judgment and remanding for a new trial in which th e protected material and its fruits are excluded from evidence." Id. S o m e of Mohawk's reasoning carries over to the First Amendment privilege. There are, however, several reasons the class of rulings involving the First A m e n d m e n t privilege differs in ways that matter to a collateral order appeal an alysis from those involving the attorney-client privilege. First, this case c o n c e r n s a privilege of constitutional dimensions. The right at issue here ­ freed o m of political association ­ is of a high order. The constitutional nature of 13

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th e right is not dispositive of the collateral order inquiry, see, e.g., Flanagan v. U n ite d States, 465 U.S. 259, 267-68 (1984), but it factors into our analysis. Second, the public interest associated with this class of cases is of greater m ag n itu d e than that in Mohawk. Compelled disclosures concerning protected First A m en d m en t political associations have a profound chilling effect on the exercise o f political rights. See, e.g., Gibson v. Florida Legislative Investigation Comm., 3 7 2 U.S. 539, 557 (1963) (underscoring the substantial "deterrent and `chilling' effect on the free exercise of constitutionally enshrined rights of free speech, e x p r e ss io n , and association" resulting from compelled disclosure of political asso ciatio n s). Third, unlike the attorney-client privilege, the First Amendment p r iv ile g e is rarely invoked. Collateral review of the First Amendment privilege, th e r ef o r e, does not implicate significant "institutional costs." Mohawk, 558 U.S. -- , slip op. at 11. Cf. id. ("Permitting parties to undertake successive, piecemeal ap p eals of all adverse attorney-client rulings would unduly delay the resolution of d istrict court litigation and needlessly burden the Courts of Appeals."). Finally, we o b serv e that Mohawk expressly reserved whether the collateral order doctrine ap p lies in connection with other privileges. See id. at 12 n.4. In light of these considerations, whether Mohawk should be extended to the F irst Amendment privilege presents a close question. The distinctions between the 14

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F ir st Amendment privilege and the attorney-client privilege ­ a constitutional b a s is , a heightened public interest, rarity of invocation and a long recognized ch illin g effect ­ are not insubstantial. Given our uncertainty about the availability o f collateral order review after Mohawk, we nonetheless assume without deciding th at discovery orders denying claims of First Amendment privilege are not rev iew ab le under the collateral order doctrine. Rather, we rely on mandamus to h ear this exceptionally important case, for reasons we now explain. B . Mandamus T h e exceptional circumstances presented by this case warrant exercising our ju risd ictio n under the All Writs Act, 28 U.S.C. § 1651(a). See Cheney v. U.S. Dist. C o u rt, 542 U.S. 367, 380 (2004); City of Las Vegas v. Foley, 747 F.2d 1294, 12969 7 (9th Cir. 1984). "T h e writ of mandamus is an `extraordinary' remedy limited to `e x tr ao r d in a r y' causes." Burlington Northern & Santa Fe Ry. Co. v. U.S. Dist. C o u rt, 408 F.3d 1142, 1146 (9th Cir. 2005) (quoting Cheney, 542 U.S. at 380). In B a u m a n v. United States District Court, 557 F.2d 650 (9th Cir. 1977), we estab lish ed five guidelines to determine whether mandamus is appropriate in a g iv en case: (1) whether the petitioner has no other means, such as a direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or 15

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p re ju d iced in any way not correctable on appeal; (3) whether the district court's o r d e r is clearly erroneous as a matter of law; (4) whether the district court's order is an oft repeated error or manifests a persistent disregard of the federal rules; and ( 5 ) whether the district court's order raises new and important problems or issues o f first impression. Id. at 654-55. "The factors serve as guidelines, a point of d e p a r tu r e for our analysis of the propriety of mandamus relief." Admiral Ins. Co. v. U .S . Dist. Court, 881 F.2d 1486, 1491 (9th Cir. 1989). "Not every factor need be p r e se n t at once." Burlington, 408 F.3d at 1146. "However, the absence of the th ir d factor, clear error, is dispositive." Id. Mandamus is appropriate to review discovery orders "when particularly im p o r ta n t interests are at stake." 16 C. Wright, A. Miller, & E. Cooper, Federal P ractice and Procedure § 3935.3 (2d ed. 2009) (hereinafter Wright & Miller). Although "the courts of appeals cannot afford to become involved with the daily d e ta ils of discovery," we may rely on mandamus to resolve "new questions that o th erw ise might elude appellate review" or "to protect important or clear claims of p r iv ile g e ." Id.; see Mohawk, 558 U.S. --, slip op. 9 ("[L]itigants confronted with a p articu larly injurious or novel privilege ruling have several potential avenues of rev iew apart from collateral order appeal. . . . [A] party may petition the court of ap p eals for a writ of mandamus."). In Schlagenhauf v. Holder, 379 U.S. 104 16

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( 1 9 6 4 ) , for example, the Supreme Court relied on mandamus to answer the novel q u estio n whether Federal Rule of Civil Procedure 35 authorized the physical and m en tal examination of a defendant. "The opinion affords strong support for the u s e of supervisory or advisory mandamus to review a discovery question that raises a novel and important question of power to compel discovery, or that reflects s u b s ta n tia l uncertainty and confusion in the district courts." Wright & Miller § 3935.3. C o n sisten t with Schlagenhauf, we have exercised mandamus jurisdiction to rev iew discovery orders raising particularly important questions of first im p ressio n , especially when called upon to define the scope of an important p riv ileg e. In Admiral Insurance, for example, we granted the mandamus petition to resolve "a significant issue of first impression concerning the proper scope of th e attorney-client privilege." 881 F.2d at 1488. Taiwan v. United States District C o u rt, 128 F.3d 712 (9th Cir. 1997), likewise involved review of another issue of first impression ­ the scope of testimonial immunity under the Taiwan Relations A ct. Id. at 714. Finally, in Foley, we exercised our mandamus authority to address a n "important issue of first impression" in a context similar to that here ­ whether le g is la to r s can be deposed to determine their subjective motives for enacting a law ch allen g ed as violative of the First Amendment. 747 F.2d at 1296. 17

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H ere, too, we are asked to address an important issue of first impression ­ th e scope of the First Amendment privilege against compelled disclosure of in te rn a l campaign communications. Considering the Bauman factors, we conclude th at this is an extraordinary case in which mandamus review is warranted. A ssu m in g , as we are, that no collateral order appeal is available, the first f ac to r is present: "A discovery order . . . is interlocutory and non-appealable" under 2 8 U.S.C. §§ 1291, 1292(a)(1) and 1292(b). Foley, 747 F.2d at 1297; see also id. ( "M a n d a m u s review has been held to be appropriate for discovery matters which o th erw ise would be reviewable only on direct appeal after resolution on the m erits."). In Admiral Insurance, for example, we held that the first Bauman factor w as satisfied because "the petitioner lacks an alternative avenue for relief." 881 F .2 d at 1488. T h e second factor also supports mandamus. A post-judgment appeal would n o t provide an effective remedy, as "no such review could prevent the damage that [ P r o p o n e n ts ] allege they will suffer or afford effective relief therefrom." In re C em en t Antitrust Litig., 688 F.2d 1297, 1302 (9th Cir. 1982); see Star Editorial, In c. v. U.S. Dist. Court, 7 F.3d 856, 859 (9th Cir. 1993) ("[I]f the district court erred in compelling disclosure, any damage the [newspaper] suffered would not be co rrectab le on appeal."); Admiral Ins., 881 F.2d at 1491 (holding that the second 18

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facto r was satisfied in view of "the irreparable harm a party likely will suffer if erro n eo u sly required to disclose privileged materials or communications"). One in ju ry to Proponents' First Amendment rights is the disclosure itself. Regardless o f whether they prevail at trial, this injury will not be remediable on appeal. See In re Cement Antitrust Litig., 688 F.2d at 1302 ("[A] post-judgment reversal on a p p e a l could not provide a remedy for those injuries."). If Proponents prevail at trial, vindication of their rights will be not merely delayed but also entirely p reclu d ed . See id. ("Moreover, whatever collateral injuries petitioners suffer will h av e been incurred even if they prevail fully at trial and thus have no right to a p p e a l from the final judgment."). U n d er the second factor, we also consider the substantial costs imposed on th e public interest. The district court applied an unduly narrow conception of First A m en d m en t privilege. Under that interpretation, associations that support or o p p o s e initiatives face the risk that they will be compelled to disclose their internal cam p aig n communications in civil discovery. This risk applies not only to the o fficial proponents of initiatives and referendums, but also to the myriad social, eco n o m ic, religious and political organizations that publicly support or oppose b allo t measures. The potential chilling effect on political participation and debate is therefore substantial, even if the district court's error were eventually corrected 19

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o n appeal from final judgment. In this sense, our concerns in this case mirror those w e articulated in Foley, where the district court denied the city's motion for a p ro tectiv e order to prevent plaintiffs from deposing city officials about their reaso n s for passing a zoning ordinance. Absent swift appellate review, we e x p la in e d , "legislators could be deposed in every case where the governmental in terest in a regulation is challenged." 747 F.2d at 1296. More concerning still is th e possibility that if Proponents ultimately prevail in the district court, there would b e no appeal at all of the court's construction of the First Amendment privilege. Declining to exercise our mandamus jurisdiction in this case, therefore, "`would im p e r il a substantial public interest' or `some particular value of a high order.'" Mohawk, 558 U.S. at --, slip op. at 6 (quoting Will, 546 U.S. at 352-53). T h e third factor, clear error, is also met. As discussed below, we are firmly co n v in ced that the district court erred by limiting the First Amendment privilege to "th e identities of rank-and-file volunteers and similarly situated individuals" and affo rd in g no greater protection to Proponents' internal communications than the g en ero u s relevance standard of Federal Rule of Civil Procedure 26. See In re C em en t Antitrust Litig., 688 F.2d at 1306-07 ("[W]hen we are firmly convinced th at a district court has erred in deciding a question of law, we may hold that the d istrict court's ruling is `clearly erroneous as a matter of law as that term is used in 20

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m an d am u s analysis.'") (quoting Bauman, 557 F.2d at 660). "[Plaintiffs'] need for in f o r m a tio n is only one facet of the problem." Cheney, 542 U.S. at 385. A p o litic al campaign's communications and activities "encompass a vastly wider ran g e of sensitive material" protected by the First Amendment than would be true in the normal discovery context. Id. at 381; see Foley, 747 F.2d at 1298-99. Thus, "[a]n important factor weighing in the opposite direction is the burden imposed by th e discovery orders. This is not a routine discovery dispute." Cheney, 542 U.S. at 385. F in a lly , the fifth factor weighs in favor of exercise of our supervisory m an d am u s authority: we are faced with the need to resolve a significant question o f first impression. See, e.g., Schlagenhauf, 379 U.S. at 110-11 (finding m an d am u s jurisdiction appropriate where there was an issue of first impression co n cern in g the district court's application of Federal Rule of Civil Procedure 35 in a new context); Foley, 747 F.2d at 1296. As these cases ­ and the very existence o f the fifth Bauman factor, whether the issue presented is one of first impression ­ illu s tr ate , the necessary "clear error" factor does not require that the issue be one as to which there is established precedent. Moreover, this novel and important q u estio n may repeatedly evade review because of the collateral nature of the d isco v ery ruling. See In re Cement Antitrust Litig., 688 F.2d at 1304-05 ("[A]n 21

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im p o r ta n t question of first impression will evade review unless it is considered u n d er our supervisory mandamus authority. Moreover, that question may continue to evade review in other cases as well."); Colonial Times, Inc. v. Gasch, 509 F.2d 5 1 7 , 524-26 (D.C. Cir. 1975) (exercising mandamus jurisdiction to correct an error in a discovery order). In sum, this is an important case for exercise of our mandamus jurisdiction: ad eq u ate, alternative means of review are unavailable; the harm to Proponents and to the public interest is not correctable on appeal; the district court's discovery o r d e r is clearly erroneous; and it presents a significant issue of first impression that m ay repeatedly evade review. As in Foley, a closely analogous case, these factors "r em o v e this case from the category of ordinary discovery orders where in te rlo c u to r y appellate review is unavailable, through mandamus or otherwise." Cheney, 542 U.S. at 381. Accordingly, we hold that the exercise of our s u p e r v is o r y mandamus authority is appropriate. III. FIRST AMENDMENT PRIVILEGE3 A.

We review de novo a determination of privilege. United States v. Ruehle, 5 8 3 F.3d 600, 606 (9th Cir. 2009) (attorney-client privilege). 22

3

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"E ffectiv e advocacy of both public and private points of view, particularly c o n tr o v e r sia l ones, is undeniably enhanced by group association." NAACP v. A la b a m a , 357 U.S. 449, 460 (1958); see also Roberts v. U.S. Jaycees, 468 U.S. 6 0 9 , 622 (1984) ("An individual's freedom to speak, to worship, and to petition the g o v ern m en t for the redress of grievances could not be vigorously protected from in te rf er en c e by the State unless a correlative freedom to engage in group effort to w ard those ends were not also guaranteed."). Thus, "[t]he First Amendment p r o te cts political association as well as political expression," Buckley v. Valeo, 424 U .S . 1, 15 (1976), and the "freedom to associate with others for the common ad v an cem en t of political beliefs and ideas is . . . protected by the First and F o u r te en th Amendments." Kusper v. Pontikes, 414 U.S. 51, 56-57 (1973). "The r ig h t to associate for expressive purposes is not, however, absolute." Roberts, 468 U .S . at 623. "Infringements on that right may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that c an n o t be achieved through means significantly less restrictive of associational f re ed o m s ." Id. T h e government may abridge the freedom to associate directly, or "ab rid g em en t of such rights, even though unintended, may inevitably follow from v a r ie d forms of governmental action." NAACP, 357 U.S. at 461. Thus, the 23

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g o v ern m en t must justify its actions not only when it imposes direct limitations on a ss o c ia tio n a l rights, but also when governmental action "would have the practical e ff ec t `of discouraging' the exercise of constitutionally protected political rights." Id. (quoting Am. Commc'ns Ass'n v. Douds, 339 U.S. 382, 393 (1950)). Such actio n s have a chilling effect on, and therefore infringe, the exercise of f u n d a m e n ta l rights. Accordingly, they "must survive exacting scrutiny." Buckley, 4 2 4 U.S. at 64. T h e compelled disclosure of political associations can have just such a ch illin g effect. See id. ("[W]e have repeatedly found that compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the F irst Amendment."); AFL-CIO v. FEC, 333 F.3d 168, 175 (D.C. Cir. 2003) ("The S u p r em e Court has long recognized that compelled disclosure of political affiliatio n s and activities can impose just as substantial a burden on First A m en d m en t rights as can direct regulation.").4 Disclosures of political affiliations an d activities that have a "deterrent effect on the exercise of First Amendment
4

See, e.g., NAACP, 357 U.S. at 461-64 (prohibiting the compelled disclosure o f the NAACP membership lists); Bates v. City of Little Rock, 361 U.S. 516, 5252 7 (1960) (same); DeGregory v. Attorney Gen., 383 U.S. 825, 828-30 (1966) (p ro h ib itin g the state from compelling defendant to discuss his association with the C o m m u n ist Party); Buckley, 424 U.S. at 63-74 (recognizing the burden but u p h o ld in g the compelled disclosure of campaign contributor information under the "e x a ctin g scrutiny" standard). 24

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r ig h ts " are therefore subject to this same "exacting scrutiny." Buckley, 424 U.S. at 6 4 -6 5 . A party who objects to a discovery request as an infringement of the p arty's First Amendment rights is in essence asserting a First Amendment p rivileg e. See, e.g., Black Panther Party v. Smith, 661 F.2d 1243, 1264 (D.C. Cir. 1 9 8 1 ), cert. granted and vacated as moot, 458 U.S. 1118 (1982); see also Fed. R. C iv . P. 26(b)(1) ("Parties may obtain discovery regarding any nonprivileged matter th a t is relevant to any party's claim or defense[.]") (emphasis added).5 I n this circuit, a claim of First Amendment privilege is subject to a two-part fram ew o rk . The party asserting the privilege "must demonstrate . . . a `prima facie s h o w in g of arguable first amendment infringement.'" Brock v. Local 375, P lu m b ers Int'l Union of Am., 860 F.2d 346, 349-50 (9th Cir. 1988) (quoting United S ta tes v. Trader's State Bank, 695 F.2d 1132, 1133 (9th Cir. 1983) (per curiam)). "This prima facie showing requires appellants to demonstrate that enforcement of th e [discovery requests] will result in (1) harassment, membership withdrawal, or d isco u rag em en t of new members, or (2) other consequences which objectively

This privilege applies to discovery orders "even if all of the litigants are p r iv a te entities." Grandbouche v. Clancy, 825 F.2d 1463, 1466 (10th Cir. 1987); s ee also Adolph Coors Co. v. Wallace, 570 F. Supp. 202, 208 (N.D. Cal. 1983) ( "[ A ] private litigant is entitled to as much solicitude to its constitutional g u aran tees of freedom of associational privacy when challenged by another private p a r ty , as when challenged by a government body.") (footnote omitted). 25

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s u g g e st an impact on, or `chilling' of, the members' associational rights." Id. at 3 5 0 .6 "If appellants can make the necessary prima facie showing, the evidentiary b u rd en will then shift to the government . . . [to] demonstrate that the information s o u g h t through the [discovery] is rationally related to a compelling governmental in te re st . . . [and] the `least restrictive means' of obtaining the desired in f o r m a tio n ." Id.; see also Dole v. Serv. Employees Union, AFL-CIO, Local 280, 9 5 0 F.2d 1456, 1459-61 (9th Cir. 1991) (same). More specifically, the second step o f the analysis is meant to make discovery that impacts First Amendment a ss o c ia tio n a l rights available only after careful consideration of the need for such d isco v ery, but not necessarily to preclude it. The question is therefore whether the p arty seeking the discovery "has demonstrated an interest in obtaining the d isclo su res it seeks . . . which is sufficient to justify the deterrent effect . . . on the

A protective order limiting the dissemination of disclosed associational in fo rm atio n may mitigate the chilling effect and could weigh against a showing of in f r in g e m e n t. The mere assurance that private information will be narrowly rather th an broadly disseminated, however, is not dispositive. See Dole v. Serv. E m p lo yees Union, AFL-CIO, Local 280, 950 F.2d 1456, 1461 (9th Cir. 1991) ( "[ N ]e ith e r letter suggests that it is the unlimited nature of the disclosure of the U n io n minutes that underlies the member's unwillingness to attend future m eetin g s. Rather, both letters exhibit a concern for the consequences that would flo w from any disclosure of the contents of the minutes to the government or any g o v e r n m e n t official."). 26

6

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f re e exercise . . . of [the] constitutionally protected right of association." NAACP, 3 5 7 U.S. at 463. To implement this standard, we "balance the burdens imposed on individuals a n d associations against the significance of the . . . interest in disclosure," AFLC IO v. FEC, 333 F.3d at 176, to determine whether the "interest in disclosure . . . o u tw e ig h s the harm," Buckley, 424 U.S. at 72. This balancing may take into acco u n t, for example, the importance of the litigation, see Dole, 950 F.2d at 1461 ( "[ T ]h e r e is little doubt that the . . . purpose of investigating possible criminal v io latio n s . . . serves a compelling governmental interest[.]"); the centrality of the in fo rm atio n sought to the issues in the case, see NAACP, 357 U.S. at 464-65; G r a n d b o u c h e v. Clancy, 825 F.2d 1463, 1466 (10th Cir. 1987); Black Panther P a rty, 661 F.2d at 1268; the existence of less intrusive means of obtaining the in fo rm atio n , see Grandbouche, 825 F.2d at 1466; Black Panther Party, 661 F.2d at 1 2 6 8 ; and the substantiality of the First Amendment interests at stake, see Buckley, 4 2 4 U.S. at 71 (weighing the seriousness of "the threat to the exercise of First A m en d m en t rights" against the substantiality of the state's interest); Black Panther P a rty, 661 F.2d at 1267 ("The argument in favor of upholding the claim of p riv ileg e will ordinarily grow stronger as the danger to rights of expression and

27

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asso ciatio n increases.").7 Importantly, the party seeking the discovery must show th at the information sought is highly relevant to the claims or defenses in the litig atio n ­ a more demanding standard of relevance than that under Federal Rule o f Civil Procedure 26(b)(1). The request must also be carefully tailored to avoid u n n ecessary interference with protected activities, and the information must be o th e r w is e unavailable. B efo re we apply these rules to the discovery at issue on this appeal, we a d d r e ss the district court's apparent conclusion that the First Amendment privilege, as a categorical matter, does not apply to the disclosure of internal campaign c o m m u n ic a tio n s . B. T h e district court concluded that "[i]f the . . . privilege identified by p ro p o n en ts protects anything, it is the identities of rank-and-file volunteers and sim ilarly situated individuals," and said that "Proponents have not . . . identified a w ay in which the . . . privilege could protect the disclosure of campaign c o m m u n ic atio n s ." The First Amendment privilege, however, has never been lim ited to the disclosure of identities of rank-and-file members. See, e.g.,

Courts generally apply some combination of these factors. See, e.g., In re M o to r Fuel Temperature Sales Practices Litig., 258 F.R.D. 407, 412-15 (D. Kan. 2 0 0 9 ); Adolph Coors Co., 570 F. Supp. at 208. 28

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D eG reg o ry, 383 U.S. at 828 (applying the privilege to "the views expressed and id eas advocated" at political party meetings); Dole, 950 F.2d at 1459 (applying p riv ileg e to statements "of a highly sensitive and political character" made at union m em b ersh ip meetings). The existence of a prima facie case turns not on the type o f information sought, but on whether disclosure of the information will have a d eterren t effect on the exercise of protected activities. See NAACP, 357 U.S. at 4 6 0 -6 1 ; Brock, 860 F.2d at 349-50. We have little difficulty concluding that d isclo su re of internal campaign communications can have such an effect on the ex ercise of protected activities. First, the disclosure of such information can have a deterrent effect on p articip atio n in campaigns. There is no question that participation in campaigns is a protected activity. See San Francisco County Democratic Cent. Comm. v. Eu, 8 2 6 F.2d 814, 827 (9th Cir. 1987) ("`[T]he right of individuals to associate for the ad v an cem en t of political beliefs' is fundamental.") (quoting Williams v. Rhodes, 3 9 3 U.S. 23, 30 (1968)). Compelled disclosure of internal campaign information can deter that participation. See Buckley, 424 U.S. at 68 ("It is undoubtedly true th a t public disclosure of contributions to candidates and political parties will deter so m e individuals who otherwise might contribute."); In re Motor Fuel T em p era tu re Sales Practices Litig., 258 F.R.D. 407, 414 (D. Kan. 2009) (holding 29

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th at disclosure of "trade associations' internal communications and evaluations ab o u t advocacy of their members' positions on contested political issues" might reaso n ab ly "interfere with the core of the associations' activities by inducing m e m b e r s to withdraw . . . or dissuading others from joining").8 S eco n d , disclosure of internal campaign information can have a deterrent effect on the free flow of information within campaigns. Implicit in the right to asso ciate with others to advance one's shared political beliefs is the right to e x c h a n g e ideas and formulate strategy and messages, and to do so in private.9

In addition to discouraging individuals from joining campaigns, the threat th a t internal campaign communications will be disclosed in civil litigation can d isco u rag e organizations from joining the public debate over an initiative. See L e tte r brief of Amicus Curiae American Civil Liberties Union of Northern C a lif o r n ia , at 2 (explaining that the ACLU's internal campaign information has b e e n subpoenaed in this case). We derive this conclusion from cases that have recognized the right of asso ciatio n s to be free of infringements in their internal affairs. The freedom of m em b ers of a political association to deliberate internally over strategy and m essag in g is an incident of associational autonomy. We recognized this right in S a n Francisco County Democratic Central Committee v. Eu, where we said that "th e right of association would be hollow without a corollary right of s elf -g o v e r n a n c e ." 826 F.2d at 827. "[T]here must be a right not only to form p o litical associations but to organize and direct them in the way that will make th e m most effective." Id. (quoting Ripon Soc'y Inc. v. Nat'l Republican Party, 525 F .2 d 567, 585 (D.C. Cir. 1975) (en banc)) (internal quotation marks omitted); see a lso Tashjian v. Republican Party of Conn., 479 U.S. 208, 224 (1986) ("The Party's determination of the boundaries of its own association, and of the structure w h ic h best allows it to pursue its political goals, is protected by the Constitution."); ( c o n tin u e d ...) 30
9

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C o m p ellin g disclosure of internal campaign communications can chill the exercise o f these rights. In identifying two ways in which compelled disclosure of internal campaign co m m u n icatio n s can deter protected activities ­ by chilling participation and by m u tin g the internal exchange of ideas ­ we do not suggest this is an exhaustive list. Disclosures of the sort challenged here could chill protected activities in other

(...continued) E u v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 231 n.21 ( 1 9 8 9 ) ("By regulating the identity of the parties' leaders, the challenged statutes m ay also color the parties' message and interfere with the parties' decisions as to th e best means to promote that message."). The government may not "interfere w ith a [political] party's internal affairs" absent a "compelling state interest." Eu, 4 8 9 U.S. at 231. Associations, no less than individuals, have the right to shape th eir own messages. See McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 342, 3 4 8 (1995) (striking down a state law prohibiting anonymous pamphleteering in p art because the First Amendment includes a speaker's right to choose a manner of ex p ressio n that she believes will be most persuasive); AFL-CIO v. FEC, 333 F.3d at 177 ("[E]xtensive interference with political groups' internal operations and w ith their effectiveness . . . implicate[s] significant First Amendment interests in a ss o c ia tio n a l autonomy."). 31

9

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w ays as well.10 We cite these two examples for purposes of illustration only, and b e c au s e they are relevant to the assertions of privilege made by Proponents here. C. I n this case, Proponents have made "a `prima facie showing of arguable first am en d m en t infringement'" by demonstrating "consequences which objectively s u g g e st an impact on, or `chilling' of, . . . associational rights." Brock, 860 F.2d at 3 4 9 -5 0 (quoting Trader's State Bank, 695 F.2d at 1133). They presented d e c la ra tio n s from several individuals attesting to the impact compelled disclosure w o u ld have on participation and formulation of strategy. For example, Mark Jan sso n , a member of ProtectMarriage.com's ad hoc executive committee, stated: I can unequivocally state that if the personal, non-public co m m u n icatio n s I have had regarding this ballot initiative ­ communications that expressed my personal political and m o ral views ­ are ordered to be disclosed through d isco v ery in this matter, it will drastically alter how I co m m u n icate in the future. . . .
10

See AFL-CIO v. FEC, 333 F.3d at 176-77 ("[T]he AFL-CIO and DNC affid av its charge that disclosing detailed descriptions of training programs, m em b er mobilization campaigns, polling data, and state-by-state strategies will d irectly frustrate the organizations' ability to pursue their political goals effectively b y revealing to their opponents `activities, strategies and tactics [that] we have p u rsu ed in subsequent elections and will likely follow in the future.'"); In re Motor F u el Temperature Sales Practices Litig., 258 F.R.D. at 415 ("Disclosure of the asso ciatio n s' evaluations of possible lobbying and legislative strategy certainly co u ld be used by plaintiffs to gain an unfair advantage over defendants in the p o litical arena."). 32

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I will be less willing to engage in such communications k n o w in g that my private thoughts on how to petition the g o v e r n m e n t and my private political and moral views may b e disclosed simply because of my involvement in a ballot in itiativ e campaign. I also would have to seriously co n sid er whether to even become an official proponent a g a in . A lth o u g h the evidence presented by Proponents is lacking in particularity, it is co n sisten t with the self-evident conclusion that important First Amendment in terests are implicated by the plaintiffs' discovery request. The declaration creates a reasonable inference that disclosure would have the practical effects of d isco u rag in g political association and inhibiting internal campaign co m m u n icatio n s that are essential to effective association and expression. See D o le, 950 F.2d at 1459-61 (holding that the union satisfied its prima facie burden b y submitting the declarations of two members who said they would no longer p articip ate in union membership meetings if the disclosure of the minutes of the m eetin g s were permitted). A protective order limiting dissemination of this in fo rm atio n will ameliorate but cannot eliminate these threatened harms. Proponents have therefore made a prima facie showing that disclosure could have a c h illin g effect on protected activities. The chilling effect is not as serious as that in v o lv ed in cases such as NAACP v. Alabama, 357 U.S. 449 (1958), but neither is

33

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it insubstantial. See AFL-CIO v. FEC, 333 F.3d at 176 ("Although we agree that th e evidence in this case is far less compelling than the evidence presented in cases in v o lv in g groups whose members had been subjected to violence, economic rep risals, and police or private harassment, that difference speaks to the strength of th e First Amendment interests asserted, not to their existence.") (citations omitted). T h e Proponents having made a prima facie showing of infringement, the ev id en tiary burden shifts to the plaintiffs to demonstrate a sufficient need for the d isco v ery to counterbalance that infringement. The district court did not apply this h eig h ten ed relevance test. Rather, having determined that the First Amendment p riv ileg e does not apply to the disclosure of internal campaign communications e x c ep t to protect the identities of rank-and-file members and volunteers, the court ap p lied the Rule 26 standard of reasonably calculated to lead to the discovery of ad m issib le evidence. We agree with the district court that plaintiffs' request satisfies the Rule 26 standard. Plaintiffs' request is reasonably calculated to lead to th e discovery of admissible evidence on the issues of voter intent and the existence o f a legitimate state interest.11 Such discovery might help to identify messages

The parties dispute whether plaintiffs' substantive claims are governed by strict scrutiny or rational basis review. They also disagree about what types of ev id en ce may be relied upon to demonstrate voter intent. These issues are beyond th e scope of this appeal. We assume without deciding that the district court has ( c o n tin u e d ...) 34

11

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actu ally conveyed to voters. See Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 4 5 7 , 471 (1982) (considering statements made by proponents during an initiative c am p a ig n to determine whether voters adopted an initiative for an improper p u rp o se). It also might lead to the discovery of evidence showing that Proponents' c am p a ig n messages were designed to "appeal[] to the . . . biases of the voters." Id. at 463 (quoting Seattle Sch. Dist. No. 1 v. Washington, 473 F. Supp. 996, 1009 ( W .D . Wash. 1979)). It might reasonably lead to the discovery of evidence u n d erm in in g or impeaching Proponents' claims that Proposition 8 serves legitimate state interests. See Romer v. Evans, 517 U.S. 620, 635 (1996) ("[A] law must bear a rational relationship to a legitimate governmental purpose."). T h e Rule 26 standard, however, fails to give sufficient weight to the First A m en d m en t interests at stake. Given Proponents' prima facie showing of in f r in g e m e n t, we must apply the First Amendment's more demanding heightened r ele v a n c e standard. Doing so, we cannot agree that plaintiffs have "demonstrated an interest in obtaining the disclosures . . . which is sufficient to justify the d eterren t effect . . . on the free exercise . . . of [the] constitutionally protected right o f association." NAACP, 357 U.S. at 463. Plaintiffs can obtain much of the

(...continued) d ecid ed these questions correctly. 35

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in fo rm atio n they seek from other sources, without intruding on protected activities. Proponents have already agreed to produce all communications actually d is se m in a te d to voters, including "communications targeted to discrete voter g ro u p s."12 Whether campaign messages were designed to appeal to voters'
12

We emphasize that our holding is limited to private, internal campaign c o m m u n ic atio n s concerning the formulation of campaign strategy and messages. See In re Motor Fuel Temperature Sales Practices Litig., 258 F.R.D. at 415 ("The co u rt wishes to make clear that defendants have met their prima facie burden only w ith respect to the associations' internal evaluations of lobbying and legislation, s tr ate g ic planning related to advocacy of their members' positions, and actual lo b b yin g on behalf of members. Any other communications to, from, or within trad e associations are not deemed protected under the First Amendment a ss o c ia tio n a l privilege."). O u r holding is therefore limited to communications among the core group of p erso n s engaged in the formulation of campaign strategy and messages. We leave it to the district court, which is best acquainted with the facts of this case and the stru ctu re of the "Yes on 8" campaign, to determine the persons who logically sh o u ld be included in light of the First Amendment associational interests the p riv ileg e is intended to protect. O u r holding is also limited to private, internal communications regarding fo r m u la tio n of strategy and messages. It certainly does not apply to documents or m essag es conveyed to the electorate at large, discrete groups of voters or in d iv id u al voters for purposes such as persuasion, recruitment or motivation ­ activ ities beyond the formulation of strategy and messages. Similarly, co m m u n icatio n s soliciting active support from actual or potential Proposition 8 s u p p o r te rs are unrelated to the formulation of strategy and messages. The district co u rt may require the parties to redact the names of individuals with respect to th ese sorts of communications, but the contents of such communications are not p riv ileg ed under our holding. B y way of illustration, plaintiffs produced at oral argument a letter from Bill T am , one of Proposition 8's official proponents, urging "friends" to "really work to p ass Prop 8." A copy of the letter is appended to this opinion. Mr. Tam's letter is ( c o n tin u e d ...) 36

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an im o sity toward gays and lesbians is a question that appears to be susceptible to e x p e r t testimony, without intruding into private aspects of the campaign. Whether P ro p o sitio n 8 bears a rational relationship to a legitimate state interest is primarily an objective inquiry. I n sum, although the First Amendment interests at stake here are not as w eig h ty as in some of the membership list cases, and harms can be mitigated in p art by entry of a protective order, Proponents have shown that discovery would lik e ly have a chilling effect on political association and the formulation of political ex p ressio n . On the other side of the ledger, plaintiffs have shown that the in fo rm atio n they seek is reasonably calculated to lead to the discovery of ad m issib le evidence, but, bearing in mind other sources of information, they have n o t shown a sufficient need for the information. The information plaintiffs seek is atten u ated from the issue of voter intent, while the intrusion on First Amendment in terests is substantial.13

(...continued) p la in ly not a private, internal formulation of strategy or message and is thus far afield from the kinds of communications the First Amendment privilege protects. We do not foreclose the possibility that some of Proponents' internal cam p aig n communications may be discoverable. We are not presented here with a carefu lly tailored request for the production of highly relevant information that is u n av ailab le from other sources that do not implicate First Amendment ( c o n tin u e d ...) 37
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A cco rd in g ly, we grant the petition for a writ of mandamus. Proponents have m ad e a prima facie showing of infringement. Plaintiffs have not shown the req u isite need for the information sought. The district court shall enter a protective o rd er consistent with this opinion. P E T IT IO N GRANTED. Each party shall bear its costs on appeal.

(...continued) asso ciatio n al interests. We express no opinion as to whether any particular request w o u ld override the First Amendment interests at stake. 38

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C o u n s el

A n d r ew P. Pugno, Law Offices of Andrew P. Pugno, Folsom, California; B r ia n W. Raum and James A. Campbell, Alliance Defense Fund, Scottsdale, A rizo n a; Charles J. Cooper (argued), David H. Thompson, Howard C. Nielson, Jr., N ico le J. Moss, Jesse Panuccio and Peter A. Patterson, Cooper and Kirk, PLLC, W ash in g to n , D.C., for Defendant-Intervenors-Appellants. T h eo d o re J. Boutrous, Jr. (argued), Rebecca Justice Lazarus, Enrique A. M o n ag as, Gibson, Dunn & Crutcher LLP, Los Angeles, California; Theodore B. O lso n , Matthew D. McGill and Amir C. Tayrani, Gibson, Dunn & Crutcher LLP, W ash in g to n , D.C., for Plaintiffs-Appellees. Stephen V. Bomse, Orrick, Herrington & Sutcliffe LLP, San Francisco, C alifo rn ia, Allan L. Schlosser and Elizabeth O. Gill, ACLU Foundation of N o rth ern California, for Amicus Curiae American Civil Liberties Union of N o r th e r n California. R o b ert H. Tyler and Jennifer Lynn Monk, Advocates for Faith and Freedom, M u rrieta, California, for Amici Curiae Schubert Flint Public Affairs, Inc., Frank S ch u b ert and Jeff Flint.

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