Perry et al v. Schwarzenegger et al

Filing 816

MOTION to Stay Pending Appeal filed by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com - Yes on 8, A Project of California Renewal. Motion Hearing set for 10/28/2011 09:00 AM in Courtroom 9, 19th Floor, San Francisco before Hon. James Ware. Responses due by 10/7/2011. Replies due by 10/14/2011. (Attachments: #1 Exhibit 1-26, #2 Exhibit 27-29, #3 Exhibit 30-36, #4 Proposed Order Proposed Order)(Cooper, Charles) (Filed on 9/23/2011)

EXHIBIT 27

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Exhibit A

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No. 08-205

IN THE

~upn~me ([ourt

of t4e

2J:Initeu ~tates

CITIZENS UNITED,

Appellant,

v.
FEDERAL ELECTION COMMISSION,

Appellee.

On Appeal
From The United States District Court
For The District Of Columbia

REPLY BRIEF FOR APPELLANT

THEODORE B. OLSON

Counsel ofRecord
MATTHEW D. MCGILL
AMIR C. TAYRANI
JUSTIN S. HERRING
GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
[phone]

Counsel for Appellant

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RULE 29.6 STATEMENT
The corporate disclosure statement included
the Brief for Appellant remains accurate.

III

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11

TABLE OF CONTENTS
Page

RULE 29.6 STATEMENT
TABLE OF AUTHORITIES
REPLY BRIEF FOR APPELLANT

i
.iv
1

THE GOVERNMENT'S SUPPRESSION OF
THE MOVIE CANNOT BE
RECONCILED
WITH
THE
FIRST
AMENDMENT

4

A. The Government's Brief Confirms
That It Has No Compelling
Interest In Suppressing Video On
Demand Distribution Of FeatureLength Films

5

B. The Government's Brief Identifies
No
Compelling
Basis
For
Suppressing Corporate Speech
That Is Funded Almost Entirely
By Individuals

13

C. The Government's Brief Confirms
That Hillary: The Movie Is Open
To Interpretations Other Than As
An Appeal To Vote

17

II. THE BURDENS THE GOVERNMENT
WOULD IMPOSE ON ADVERTISEMENTS
FOR HILLARY: THE MOVIE VIOLATE THE
FIRST AMENDMENT

20

A. BCRA's Disclaimer, Disclosure,
And
Reporting
Requirements
Cannot Survive Strict Scrutiny

21

B. BCRA's Disclaimer, Disclosure,
And
Reporting
Requirements
Cannot Survive Exacting Scrutiny

22

I.

HILLARY:

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III

1.

2.

3.

CONCL-USION

The Government's Informational Interest Is Inapplicable
To
Citizens
United's
Advertisements

22

The Government's Enforcement Interest Is Inapplicable
To
Citizens
United's
Advertisements

27

The Burdens Imposed By
BCRA
§§ 201
And
311
Outweigh Any Government
Interest In Applying Those
Speech
Restrictions
To
Citizens United

28
30

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28

rate-funded electioneering communications. And, as
applied to Citizens United, not even the reporting
requirement could further the government's enforcement interest (or its purported informational
interest, for that matter) because, as the government
concedes, Citizens United "already discloses its identify at the website referred to in the advertisements."
FEC Br. 51. In this case, then, the government's
supposed enforcement interest is pure fiction.

3. The Burdens Imposed By BCRA
§§ 201 And 311 Outweigh Any
Government Interest In Applying Those Speech Restrictions
To Citizens United.
Even if the government did have an informational
or enforcement interest in applying BCRA's disclaimer, disclosure, and reporting requirements to
Citizens United, those interests would be outweighed
by the extraordinary burdens that those requirements impose on First Amendment freedomsincluding the risk of harassment and retaliation
faced by Citizens United's financial supporters, and
the substantial compliance costs borne by Citizens
United.
The government dismisses the risk of reprisal
against Citizens United's supporters because the record does not document previous acts of retaliation.
But the risk of reprisal against contributors to Citizens United-and other groups that espouse controversial ideological messages-has vastly increased in
recent years as a result of the same "technological
advances" that the governmer..t touts in BCRA's defense, which "make it possible ... for the public to
review and even search the [contribution] data with
ease." FEC Br. 40-41. The widespread economic re-

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29
prisals against financial supporters of California's
Proposition 8 dramatically illustrate the unsettling
consequences of disseminating contributors' names
and addresses to the public through searchable websites (see, e.g., CCP Br. 13; IJ Br. 13)-some of which
even helpfully provide those intent upon retribution
with a map to each donor's residence. See Brad
Stone, Prop 8 Donor Web Site Shows Disclosure Is 2Edged Sword, N.Y. Times, Feb. 8, 2009.
The chilling effect on First Amendment expression generated by the specter of retribution is substantiated by empirical studies, which have found
that "'[e]ven those who strongly support forced disclosure laws will be less likely to contribute'" where
their personal information will be disclosed. IJ Br.
10 (quoting Dick Carpenter, Disclosure Costs: Unintended Consequences of Campaign Finance Reform 8
(2007». And this chilling effect on First Amendment
freedoms is compounded by the extreme administrative burdens generated by BCRA's disclosure requirements, which are notoriously difficult to implement for even the lawyers and accountants who advocacy groups are inevitably required to retain to
monitor their disclosure obligations. See id. at 19
(discussing an empirical study in which none of the
255 participants was able to comply successfully with
campaign disclosure requirements).
The fact that the record does not explicitly document the burdens that BCRA's disclaimer, disclosure, and reporting requirements impose on Citizens
United's First Amendment rights is not a sufficient
basis for discounting these very real impositions on
Citizens United's freedom of expression. In this asapplied challenge, it is the government that bears the
burden of establishing that BCRA's speech restrictions are compatible with the First Amendment

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30

(WRTL II, 127 S. Ct. at 2664 (opinion of Roberts,
C.J.»-and it therefore falls to the government to
demonstrate that BCRA does not intolerably restrict
Citizens United's First Amendment freedoms. The
government has not met that burden.
CONCLUSION
The judgment of the district court should be reversed.
Respectfully submitted.
THEODORE B. OLSON

Counsel of Record
MATTHEW D. MCGILL
AMIR C. TAYRANI
JUSTIN

S. HERRING

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.
vVashington,D.C.20036
[phone]

Counsel for Appellant

March 17, 2009

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Ex. A-1
(Brief of Amicus Curiae Center for
Competitive Politics in Support of
Appellant, No. 08-205, Cited in Reply
Brief for Appellants)

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Ex. A-2
(Brief of The Institute for Justice as
Amicus Curiae in Support of Appellant,
Citizens United, No. 08-205, Cited in
Reply Brief for Appellants)

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Ex. A-3
(Prop 8 Donor Web Site Shows
Disclosure Law is 2-Edged Sword, NY
Times, Cited in Reply Brief for
Appellants)

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February 8, 2009
SLIPSTREAM

Prop 8 Donor Web Site Shows Disclosure Law Is
2-Edged Sword
By BRAD STONE

FOR the backers of Proposition 8, the state ballot measure to stop single-sex couples from
marrying in California, victory has been soured by the ugly specter of intimidation.
Some donors to groups supporting the measure have received death threats and envelopes
containing a powdery white substance, and their businesses have been boycotted.
The targets of this harassment blame a controversial and provocative Web site, eightmaps.com.
The site takes the names and ZIP codes of people who donated to the ballot measure —
information that California collects and makes public under state campaign finance disclosure laws
— and overlays the data on a Google map.
Visitors can see markers indicating a contributor’s name, approximate location, amount donated
and, if the donor listed it, employer. That is often enough information for interested parties to find
the rest — like an e-mail or home address. The identity of the site’s creators, meanwhile, is
unknown; they have maintained their anonymity.
Eightmaps.com is the latest, most striking example of how information collected through
disclosure laws intended to increase the transparency of the political process, magnified by the
powerful lens of the Web, may be undermining the same democratic values that the regulations
were to promote.
With tools like eightmaps — and there are bound to be more of them — strident political partisans
can challenge their opponents directly, one voter at a time. The results, some activists fear, could
discourage people from participating in the political process altogether.
That is why the soundtrack to eightmaps.com is a loud gnashing of teeth among civil libertarians,
privacy advocates and people supporting open government. The site pits their cherished values
against each other: political transparency and untarnished democracy versus privacy and freedom
of speech.

9/15/2009 3:02 PM

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“When I see those maps, it does leave me with a bit of a sick feeling in my stomach,” said Kim
Alexander, president of the California Voter Foundation, which has advocated for open democracy.
“This is not really the intention of voter disclosure laws. But that’s the thing about technology. You
don’t really know where it is going to take you.”
Ms. Alexander and many Internet activists have good reason to be queasy. California’s Political
Reform Act of 1974, and laws like it across the country, sought to cast disinfecting sunlight on the
political process by requiring contributions of more than $100 to be made public.
Eightmaps takes that data, formerly of interest mainly to social scientists, pollsters and journalists,
and publishes it in a way not foreseen when the open-government laws were passed. As a result,
donors are exposed to a wide audience and, in some cases, to harassment or worse.
A college professor from the University of California, San Francisco, wrote a $100 check in support
of Proposition 8 in August, because he said he supported civil unions for gay couples but did not
want to change the traditional definition of marriage. He has received many confrontational e-mail
messages, some anonymous, since eightmaps listed his donation and employer. One signed
message blasted him for supporting the measure and was copied to a dozen of his colleagues and
supervisors at the university, he said.
“I thought what the eightmaps creators did with the information was actually sort of neat,” the
professor said, who asked that his name not be used to avoid becoming more of a target. “But
people who use that site to send out intimidating or harassing messages cross the line.”
Joseph Clare, a San Francisco accountant who donated $500 to supporters of Proposition 8, said
he had received several e-mail messages accusing him of “donating to hate.” Mr. Clare said the site
perverts the meaning of disclosure laws that were originally intended to expose large corporate
donors who might be seeking to influence big state projects.
“I don’t think the law was designed to identify people for direct feedback to them from others on
the other side,” Mr. Clare said. “I think it’s been misused.”
Many civil liberties advocates, including those who disagree with his views on marriage, say he has
a point. They wonder if open-government rules intended to protect political influence of the
individual voter, combined with the power of the Internet, might be having the opposite effect on
citizens.
“These are very small donations given by individuals, and now they are subject to harassment that
ultimately makes them less able to engage in democratic decision making,” said Chris Jay
Hoofnagle, senior fellow at the Berkeley Center for Law and Technology at the University of
California.
THANKS to eightmaps.com, the Internet is abuzz with bloggers, academics and other pundits

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offering potential ways to resolve the tension between these competing principles. One idea is to
raise the minimum donation that must be reported publicly from $100, to protect the anonymity
of small donors.
Another idea, proposed by a Georgetown professor, is for the state Web sites that make donor
information available to ask people who want to download and repurpose the data to provide some
form of identification, like a name and credit card number.
“The key here is developing a process that balances the sometimes competing goals of
transparency and privacy,” said the professor, Ned Moran, whose undergraduate class on
information privacy spent a day discussing the eightmaps site last month.
“Both goals are essential for a healthy democracy,” he said, “and I think we are currently
witnessing, as demonstrated by eightmaps, how the increased accessibility of personal information
is disrupting the delicate balance between them.”

Copyright 2009 The New York Times Company
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9/15/2009 3:02 PM

EXHIBIT 28

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Filed09/15/09 Page1 of 6

Exhibit B

Case3:09-cv-02292-VRW Document187-2

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18

COOPER AND KIRK, PLLC
Charles J. Cooper (DC Bar No. 248070)*
[e-mail]
David H. Thompson (DC Bar No. 450503)*
[e-mail]
Howard C. Nielson, Jr. (DC Bar No. 473018)*
[e-mail]
Nicole J. Moss
[e-mail] (DC Bar No. 472424)
Jesse Panuccio
[e-mail] (DC Bar No. 981634)
Peter A. Patterson (Ohio Bar No. 0080840)*
[e-mail]
1523 New Hampshire Ave. N.W., Washington, D.C. 20036
Telephone: [phone], Facsimile: [phone]
LAW OFFICES OF ANDREW P. PUGNO
Andrew P. Pugno (CA Bar No. 206587)
[e-mail]
101 Parkshore Drive, Suite 100, Folsom, California 95630
Telephone: [phone], Facsimile: [phone]
ALLIANCE DEFENSE FUND
Brian W. Raum (NY Bar No. 2856102)*
[e-mail]
James A. Campbell (OH Bar No. 0081501)*
[e-mail]
15100 North 90th Street, Scottsdale, Arizona 85260
Telephone: [phone], Facsimile: [phone]
ATTORNEYS FOR DEFENDANT-INTERVENORS DENNIS HOLLINGSWORTH,
GAIL J. KNIGHT, MARTIN F. GUTIERREZ, HAK-SHING WILLIAM TAM,
MARK A. JANSSON, and PROTECTMARRIAGE.COM – YES ON 8, A
PROJECT OF CALIFORNIA RENEWAL
* Admitted pro hac vice

19

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

20
21
22

KRISTIN M. PERRY, SANDRA B. STIER,
PAUL T. KATAMI, and JEFFREY J.
ZARRILLO,

23

Plaintiffs,

24
v.
25
26
27
28

Filed09/15/09 Page2 of 6

ARNOLD SCHWARZENEGGER, in his official capacity as Governor of California; EDMUND G. BROWN, JR., in his official capacity
as Attorney General of California; MARK B.

CASE NO. 09-CV-2292 VRW
DECLARATION OF RONALD
PRENTICE IN SUPPORT OF DEFENDANT-INTERVENORS’ MOTION FOR A PROTECTIVE ORDER
Date: September 25, 2009
Time: 10:00AM
Judge: Chief Judge Vaughn R. Walker
Location: Courtroom 6, 17th Floor
1

DECLARATION IN SUPPORT OF DEFENDANT-INTERVENORS’ MOTION FOR PROTECTIVE ORDER
CASE NO. 09-CV-2292 VRW

Case3:09-cv-02292-VRW Document187-2

1
2
3
4
5
6
7

HORTON, in his official capacity as Director of
the California Department of Public Health and
State Registrar of Vital Statistics; LINETTE
SCOTT, in her official capacity as Deputy Director of Health Information & Strategic Planning for the California Department of Public
Health; PATRICK O’CONNELL, in his official
capacity as Clerk-Recorder for the County of
Alameda; and DEAN C. LOGAN, in his official
capacity as Registrar-Recorder/County Clerk for
the County of Los Angeles,
Defendants,

8
9
10
11
12
13
14

Filed09/15/09 Page3 of 6

and
PROPOSITION 8 OFFICIAL PROPONENTS
DENNIS HOLLINGSWORTH, GAIL J.
KNIGHT, MARTIN F. GUTIERREZ, HAKSHING WILLIAM TAM, and MARK A.
JANSSON; and PROTECTMARRIAGE.COM
– YES ON 8, A PROJECT OF CALIFORNIA
RENEWAL,
Defendant-Intervenors.

15
16
17
18
19
20

Additional Counsel for Defendant-Intervenors
ALLIANCE DEFENSE FUND
Timothy Chandler (CA Bar No. 234325)
[e-mail]
101 Parkshore Drive, Suite 100, Folsom, California 95630
Telephone: [phone], Facsimile: [phone]

23

Jordan W. Lorence (DC Bar No. 385022)*
[e-mail]
Austin R. Nimocks (TX Bar No. 24002695)*
[e-mail]
801 G Street NW, Suite 509, Washington, D.C. 20001
Telephone: [phone], Facsimile: [phone]

24

* Admitted pro hac vice

21
22

25

I, Ronald Prentice, make the following declaration pursuant to 28 U.S.C. § 1746:

26

1. I am a resident of California over 18 years of age, and my statements herein are based

27
28

on personal knowledge.
2
DECLARATION IN SUPPORT OF DEFENDANT-INTERVENORS’ MOTION FOR PROTECTIVE ORDER
CASE NO. 09-CV-2292 VRW

Case3:09-cv-02292-VRW Document187-2

Filed09/15/09 Page4 of 6

1

2. The California ballot measure in 2008 known as Proposition 8 had five “Official Pro-

2

ponents” pursuant to California law, Cal. Elec. Code §342. Those five Proponents are Defendant-

3

Intervenors in this case: Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez, Hak-Shing

4
William Tam, and Mark A. Jansson (“the Proponents”).
5
6

3. The Proponents endorsed ProtectMarriage.com – Yes on 8, a Project of California Re-

7

newal (“Protect Marriage”), a “primarily formed committee” under the California Political Reform

8

Act, Cal. Gov. Code § 82047.5, as the official Proposition 8 campaign committee. Protect Mar-

9

riage was designated to receive all contributions and to disburse expenditures for the Proposition 8

10
11

campaign.
4. For purposes of state law, Protect Marriage has a single officer responsible for filing

12
required disclosures. David Bauer serves as that officer.
13
14

5. Unofficially, Protect Marriage was and is supported by many volunteers with varying

15

levels of involvement and input, including an ad hoc “executive committee” consisting of several

16

individuals. Some of those individuals served as agents for other organizations with an interest in

17

the qualification and passage of Proposition 8, and the marriage debate generally. I serve as

18

chairman of the ad hoc executive committee.

19

6. The ad hoc executive committee was often advised by an attorney, who was retained to

20
serve as Protect Marriage’s general counsel.
21
22
23

7. Protect Marriage employed a public relations firm to serve as the Proposition 8 campaign manager.

24

8. Volunteers of Protect Marriage corresponded with each other, with the public relations

25

firm, with various vendors and independent contractors, and with other third parties about political

26

beliefs, campaign strategy, personal beliefs, and much else relating to Proposition 8.

27
28

3
DECLARATION IN SUPPORT OF DEFENDANT-INTERVENORS’ MOTION FOR PROTECTIVE ORDER
CASE NO. 09-CV-2292 VRW

Case3:09-cv-02292-VRW Document187-2

1
2
3

Filed09/15/09 Page5 of 6

9. As chairman of the ad hoc executive committee, I had extensive dealings with Protect
Marriage’s donors and volunteers. Many of the donors were quite concerned that publiclydisclosed affiliation with Protect Marriage would lead to retaliation against them. They were

4
specifically concerned with the scope of information that would be revealed, and for some donors
5
6

the determining factor in favor of donating was that the only information that would be publicly

7

disclosed was the amount of their contribution and their name, address, occupation and employer.

8

10. I am aware of many instances of harassment and retaliation against Protect Marriage’s

9

donors and volunteers that occurred after their affiliation with Protect Marriage became public.

10

The names of donors to Proposition 8 were widely distributed on the Internet, and many donors

11

experienced boycotts of their businesses. I am aware of several individuals who chose to resign

12
from their employment in order to escape the harassment and intimidation brought upon them and
13
14

their employers. Volunteers who made a public stand in support of Proposition 8 by holding signs

15

or distributing materials were victims of physical assaults such as being spat upon and having hot

16

coffee thrown on them by passengers in passing automobiles. Several reports of vandalism to

17

property came from volunteers who placed Yes on 8 bumper strips on their cars.

18
19

11. Widespread retaliation and harassment against donors and volunteers had a negative effect on participation in the campaign in favor of Proposition 8. As acts of harassment against

20
Proposition 8 donors and volunteers became public, donors expressed concern over being publicly
21
22

identified and placing themselves, their family members, and their employees at possible risk.

23

Potential donors contacted me to ask how donations could be made without publicly disclosing

24

their identity, and when campaign finance disclosure laws were explained to those donors, many

25

declined to make any contribution. After receiving significant media attention and public protests,

26

several major donors to the Proposition 8 campaign refused to make further contributions.

27
28

4
DECLARATION IN SUPPORT OF DEFENDANT-INTERVENORS’ MOTION FOR PROTECTIVE ORDER
CASE NO. 09-CV-2292 VRW

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Filed09/15/09 Page6 of 6

EXHIBIT 29

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Filed09/15/09 Page1 of 15

Exhibit I

Case3:09-cv-02292-VRW Document187-9

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18

COOPER AND KIRK, PLLC
Charles J. Cooper (DC Bar No. 248070)*
[e-mail]
David H. Thompson (DC Bar No. 450503)*
[e-mail]
Howard C. Nielson, Jr. (DC Bar No. 473018)*
[e-mail]
Nicole J. Moss
[e-mail] (DC Bar No. 472424)
Jesse Panuccio
[e-mail] (DC Bar No. 981634)
Peter A. Patterson (Ohio Bar No. 0080840)*
[e-mail]
1523 New Hampshire Ave. N.W., Washington, D.C. 20036
Telephone: [phone], Facsimile: [phone]
LAW OFFICES OF ANDREW P. PUGNO
Andrew P. Pugno (CA Bar No. 206587)
[e-mail]
101 Parkshore Drive, Suite 100, Folsom, California 95630
Telephone: [phone], Facsimile: [phone]
ALLIANCE DEFENSE FUND
Brian W. Raum (NY Bar No. 2856102)*
[e-mail]
James A. Campbell (OH Bar No. 0081501)*
[e-mail]
15100 North 90th Street, Scottsdale, Arizona 85260
Telephone: [phone], Facsimile: [phone]
ATTORNEYS FOR DEFENDANT-INTERVENORS DENNIS HOLLINGSWORTH,
GAIL J. KNIGHT, MARTIN F. GUTIERREZ, HAK-SHING WILLIAM TAM,
MARK A. JANSSON, and PROTECTMARRIAGE.COM – YES ON 8, A
PROJECT OF CALIFORNIA RENEWAL
* Admitted pro hac vice

19

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

20
21
22

KRISTIN M. PERRY, SANDRA B. STIER,
PAUL T. KATAMI, and JEFFREY J.
ZARRILLO,

23

Plaintiffs,

24
v.
25
26
27
28

Filed09/15/09 Page2 of 15

ARNOLD SCHWARZENEGGER, in his official capacity as Governor of California; EDMUND G. BROWN, JR., in his official capacity
as Attorney General of California; MARK B.

CASE NO. 09-CV-2292 VRW
DECLARATION OF FRANK SCHUBERT IN SUPPORT OF DEFENDANT-INTERVENORS’ MOTION
FOR A PROTECTIVE ORDER
Date: September 25, 2009
Time: 10:00 a.m.
Judge: Chief Judge Vaughn R. Walker
Location: Courtroom 6, 17th Floor
1

DECLARATION IN SUPPORT OF DEFENDANT-INTERVENORS’ MOTION FOR PROTECTIVE ORDER
CASE NO. 09-CV-2292 VRW

Case3:09-cv-02292-VRW Document187-9

1
2
3
4
5
6
7

HORTON, in his official capacity as Director of
the California Department of Public Health and
State Registrar of Vital Statistics; LINETTE
SCOTT, in her official capacity as Deputy Director of Health Information & Strategic Planning for the California Department of Public
Health; PATRICK O’CONNELL, in his official
capacity as Clerk-Recorder for the County of
Alameda; and DEAN C. LOGAN, in his official
capacity as Registrar-Recorder/County Clerk for
the County of Los Angeles,
Defendants,

8
9
10
11
12
13
14

Filed09/15/09 Page3 of 15

and
PROPOSITION 8 OFFICIAL PROPONENTS
DENNIS HOLLINGSWORTH, GAIL J.
KNIGHT, MARTIN F. GUTIERREZ, HAKSHING WILLIAM TAM, and MARK A.
JANSSON; and PROTECTMARRIAGE.COM
– YES ON 8, A PROJECT OF CALIFORNIA
RENEWAL,
Defendant-Intervenors.

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Additional Counsel for Defendant-Intervenors
ALLIANCE DEFENSE FUND
Timothy Chandler (CA Bar No. 234325)
[e-mail]
101 Parkshore Drive, Suite 100, Folsom, California 95630
Telephone: [phone], Facsimile: [phone]

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Jordan W. Lorence (DC Bar No. 385022)*
[e-mail]
Austin R. Nimocks (TX Bar No. 24002695)*
[e-mail]
801 G Street NW, Suite 509, Washington, D.C. 20001
Telephone: [phone], Facsimile: [phone]

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* Admitted pro hac vice

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DECLARATION IN SUPPORT OF DEFENDANT-INTERVENORS’ MOTION FOR PROTECTIVE ORDER
CASE NO. 09-CV-2292 VRW

Case3:09-cv-02292-VRW Document187-9

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I, Frank Schubert, make the following declaration pursuant to 28 U.S.C. § 1746:

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1.

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I am a resident of the State of California over 18 years of age, and my statements here-

in are based upon personal knowledge and experience and upon my personal review of the docu-

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ment requests served by Plaintiffs on Defendant-Intervenors in this case.
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2.

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order.

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3.

This declaration is made in support of Defendant-Intervenors’ motion for a protective

I am the President of Schubert Flint Public Affairs, a full-service, public affairs and

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communications consulting firm based in Sacramento, California, with clients across the United

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States. I have twice been named the country’s most valuable public affairs professional by the

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American Association of Political Consultants (AAPC). I am the only person in the association’s

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history to have won this prestigious award twice. I have served on the AAPC Board of Directors
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for over ten years. On three occasions, the AAPC has honored me for assembling and managing

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the Pubic Affairs Team of the Year, including last year for my management of the Yes on Proposi-

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tion 8 campaign. I have received the Lifetime Achievement Award from the International Associ-

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ation of Business Communicators (Sacramento Chapter). I have over 30 years of experience in

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this field. I have managed 34 statewide ballot initiative campaigns in nine states including acting

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as Campaign Manager for Protect Marriage.com in the Proposition 8 campaign in 2008.

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4.

I and my firm were hired by Protect Marriage.com in June 2008 to serve as Campaign

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Manager. I worked with the volunteer chairman of Protect Marriage.com, Ron Prentice, and with

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an ad hoc executive committee. My responsibilities included, subject to approval of the executive

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committee, developing the campaign’s strategy, selecting vendors to work on the campaign,

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developing messages for delivery to voters, overseeing voter and issue research, developing and

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overseeing a grassroots plan, developing advertisements and other communications to voters, and
working with donors, volunteers, supporters, and the press, among other duties.
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DECLARATION IN SUPPORT OF DEFENDANT-INTERVENORS’ MOTION FOR PROTECTIVE ORDER
CASE NO. 09-CV-2292 VRW

Case3:09-cv-02292-VRW Document187-9

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Filed09/15/09 Page5 of 15

I am submitting this Declaration in Support of the Proposition 8 Proponents’ Motion

for a Protective Order because I know, based on personal experience, the harm that will result if
Protect Marriage.com’s, its volunteers’, donors’, members’, vendors’, consultants’, etc., and/or the

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Proposition 8 official proponents’, personal, non-public communications are found to be an appro5
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priate subject of discovery in this matter. It is my professional opinion that if the Protective Order

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is not granted, the Court will thrust not a dagger, but a sword, into the People’s precious right of

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initiative and referendum. The harms that would flow from requiring these communications—

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which reflect political views and opinions, moral views and opinions, religious beliefs, legislative

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and political strategy, political speech, and associational activity—to be produced in discovery are

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several-fold.

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6.

First, a significant and real threat exists that individuals identified in these communica-

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tions, their families and associates, and/or their businesses will be targeted for retaliation by

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groups and persons who disagree with the views being expressed therein. Throughout the Proposi-

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tion 8 campaign, I and my company were personally subject to severe harassment and attempts at

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intimidation because of our involvement in the Yes on 8 Campaign. For example:

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I received hundreds of hate emails and telephone calls, many with threatening overtones—
including suggestions that the world would be better off if I were dead.

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front me over my position on Proposition 8.

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Activists descended upon my office with camera crews in tow in an effort to publicly con-

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A distant gay relative posted on Facebook an “apology” to the homosexual community that

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her relative was managing the Proposition 8 campaign, and offered to provide my home

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address to anyone who wanted it. One No-on-Prop-8 supporter publicly asked for the in-

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formation.
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I was the subject of continuous taunting, insults, and harassment on countless blogs.
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DECLARATION IN SUPPORT OF DEFENDANT-INTERVENORS’ MOTION FOR PROTECTIVE ORDER
CASE NO. 09-CV-2292 VRW

Case3:09-cv-02292-VRW Document187-9

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•

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Filed09/15/09 Page6 of 15

My address and those of thousands of other supporters of Prop 8 were posted on the Internet through a “Google map” that allowed people to type in an address and see all the con-

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tributors to ProtectMarriage in their area (including a contributor’s name, address, profes-

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sion, employer, and donation level). A sampling of the maps available on that website
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(http://www.eightmaps.com) is attached as an exhibit to this declaration. That website is

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still functional and publically accessible as of today. The message is unmistakable: “here’s

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where they live. Go get them.”

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•

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who organized an elaborate attempt to infiltrate the reception and not only confront me, but

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The open house for our office in southern California became a cause célèbre for activists

also our clients to inform them that our firm was allegedly bigoted and discriminatory.
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Because of this harassment, the campaign was forced to provide security at our offices for

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several weeks in order to protect our staff and ensure that activists were not allowed to en-

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ter the office and cause harm to me or my staff. Protect Marriage was also forced to pay

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for private security for a two-week bus tour throughout California. The committee contin-

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ues to provide security for me and members of the legal team in high profile appearances,

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including when they appear before this Court.
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To this day, I continue to receive hate email and threats because of the positions I advo-

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cated.

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7.

I am also aware of many other instances of harassment, retaliation, and threats against

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supporters of the Yes on 8 Campaign. I know from both experience and interaction with these

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supporters that they will be much less willing to contribute to and/or participate in a campaign in

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the future. During the campaign there was a noticeable decline in some donors’ willingness to
donate to, and some volunteers’ willingness to continue participating in, the campaign after they

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were subjected to threats and harassment. Certain vendors would no longer work on the campaign
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DECLARATION IN SUPPORT OF DEFENDANT-INTERVENORS’ MOTION FOR PROTECTIVE ORDER
CASE NO. 09-CV-2292 VRW

Case3:09-cv-02292-VRW Document187-9

Filed09/15/09 Page7 of 15

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because of the retaliation against them by activists. Even now, some of our larger contributors

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continue to face calls for boycotts and economic sanctions. I know of several donors who had

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their businesses boycotted and protested, their employees harassed, and who received hundreds of

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threatening emails and phone calls. I am personally aware of at least two supporters who were
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physically assaulted because of their position on Proposition 8. I have witnessed video footage of

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roaming bands of thieves stealing hundreds of our signs and then displaying them as if they were a

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trophy. I have seen photos of our supporters’ homes and automobiles defaced. One supporter had

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his automobile keyed with a swastika and the words, “gay sex is love,” scratched into the paint

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down to the raw metal. Another supporter had a van parked in front of his home painted with the
words, “bigots live here.” I know of many churches that were defaced. Several of our supporters

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were forced from their jobs when demonstrators decided to target their place of employment. I
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know of donors to Protect Marriage whose employers were called to ask about the employer’s
non-discrimination policy and to inform them that they had an alleged bigot in their employ.
8.

These are not isolated incidents. The harassment of supporters of Proposition 8 was in-

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cessant, continuous, and organized. To this day, several websites exist specifically for the purpose

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of harassing supporters of traditional marriage, including the so-called “Californians Against

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Hate,” which continues to promote boycotts and reprisals against supporters of Proposition 8 and

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traditional marriage. The harassment is also not limited to fringe groups or over-zealous suppor21
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ters of same-sex marriage. One major national group that petitioned the Court for permission to

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intervene in this case (National Center for Lesbian Rights), recently issued a press statement

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condemning the California Bar Association’s decision to host a meeting at a business associated

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with one of Proposition 8’s supporters.

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9.

Second, an equally serious and real threat exists that the disclosure of the non-public

communications of the Yes on 8 campaign—whether those communications are between volun6
DECLARATION IN SUPPORT OF DEFENDANT-INTERVENORS’ MOTION FOR PROTECTIVE ORDER
CASE NO. 09-CV-2292 VRW

Case3:09-cv-02292-VRW Document187-9

Filed09/15/09 Page8 of 15

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teers of Protect Marriage and their consultants, contractors, and vendors (such as Schubert Flint),

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or between Schubert Flint as campaign manager and donors, supporters, vendors, etc.—will

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significantly suppress the future participation in, and course of, initiative and referendum cam-

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paigns. Personally, speaking on behalf of Schubert Flint, I can state with certainty that I and my
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firm will change the way we engage in political speech and campaigning if the broad discovery

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demanded in this case is permitted. Further, based on my experience working on 34 statewide

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ballot initiative campaigns like the Proposition 8 campaign, I believe that if involvement with a

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contentious ballot initiative causes supporters, donors, volunteers, vendors, consultants, etc., to run

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the risk that not only their identities, but also their personal, non-public communications, might be

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subject to discovery, it will be significantly harder to recruit supporters, volunteers, donors, etc. It

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will be significantly harder to get vendors to agree to work on the campaign for fear that their
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involvement will hurt them professionally. As importantly, the risk that internal communications

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regarding such things as political strategy and political or religious views might be disclosed will

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mean there will be significantly less of this type of speech and activity in the future. Campaign

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strategists, volunteers, and voters will avoid candid associational speech, as well as candid speech

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about political views and strategy, in an effort to avoid later exposure or mischaracterization in a

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lawsuit over which they have no control.

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Third, the scope of the discovery requests in this case opens the floodgates for Plain-

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tiffs and their allies to learn not only the identity of donors, but also the identity of individual

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volunteers and supporters, as well as the private reasons some such individuals might have for

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getting involved in a campaign. Protect Marriage and Schubert Flint possess information on many

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individual volunteers, including their names, addresses, and contact information. Protect Marriage

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and Schubert Flint also possess communications to and from some of these volunteers about the
Proposition 8 campaign and the marriage issue generally. Based on my experience in this and
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DECLARATION IN SUPPORT OF DEFENDANT-INTERVENORS’ MOTION FOR PROTECTIVE ORDER
CASE NO. 09-CV-2292 VRW

Case3:09-cv-02292-VRW Document187-9

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other campaigns, I know that individuals often have very private and personal reasons for getting

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involved in an initiative campaign. They may feel passionately about an issue. They may fear the

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consequences for themselves, their family, or society as a whole if an initiative passes or fails.

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They may have an economic interest in the outcome of an initiative election. They may have
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spiritual, political, personal, or familial reasons for their point of view. Whatever their personal,

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subjective reasons for taking a position on an initiative, my experience demonstrates that if those

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reasons are put on trial and/or exposed through compelled discovery there will be a very real risk

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that future political participation will thereby be severely curbed.

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The types of communications at issue in this case include all of the types of communi-

cations the exposure of which would lead to the types of chilling referenced above. For example,

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one activity conducted by the campaign—for the purpose of planning and implementing a cam13
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paign to petition the government and engaging in political speech—was to compile a database that

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collected information on how voters in California intended to vote on Proposition 8. Plaintiffs’

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broad discovery requests would seemingly require Protect Marriage to turn over this information

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and thereby violate one of the most highly protected and deeply cherished First Amendment

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rights—the right to a secret ballot. Protect Marriage and Schubert Flint also possess information

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on the privately expressed position of over one million voters. If the Plaintiffs’ discovery requests

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are allowed to proceed, the privately expressed opinions of over one million voters will become
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public.
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Another specific example of communications that are implicated by Plaintiffs’ discov-

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ery requests are all of the communications I or others at Schubert Flint have had with either offi-

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cial Proponents or volunteers of Protect Marriage involving political and religious viewpoints.

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Even to the extent that it is public information, for example, that major backing for the Yes on 8
campaign came from certain religiously affiliated groups, the private religious views expressed by
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DECLARATION IN SUPPORT OF DEFENDANT-INTERVENORS’ MOTION FOR PROTECTIVE ORDER
CASE NO. 09-CV-2292 VRW

Case3:09-cv-02292-VRW Document187-9

Filed09/15/09 Page10 of 15

Case3:09-cv-02292-VRW Document187-9

I-1

Filed09/15/09 Page11 of 15

Jump to San Francisco, Salt Lake City , or Orange County.

PROP 8 MAPS

Filed09/15/09 Page12 of 15

Map data ©2009 LeadDog Consulting, Tele Atlas, INEGI, Europa Technologies - Terms of Use

Proposition 8 changed the California state constitution to prohibit same-sex marriage. These are
the people who donated in order to pass it.

A mash-up of Google Maps and Prop 8 Donors.

Case3:09-cv-02292-VRW Document187-9

Jump to San Francisco, Salt Lake City , or Orange County.

PROP 8 MAPS

Filed09/15/09 Page13 of 15

Map data ©2009 Tele Atlas, INEGI - Terms of Use

Proposition 8 changed the California state constitution to prohibit same-sex marriage. These are
the people who donated in order to pass it.

A mash-up of Google Maps and Prop 8 Donors.

Case3:09-cv-02292-VRW Document187-9

Jump to San Francisco, Salt Lake City , or Orange County.

PROP 8 MAPS

Filed09/15/09 Page14 of 15

Map data ©2009 Tele Atlas, INEGI - Terms of Use

Proposition 8 changed the California state constitution to prohibit same-sex marriage. These are
the people who donated in order to pass it.

A mash-up of Google Maps and Prop 8 Donors.

Case3:09-cv-02292-VRW Document187-9

Jump to San Francisco, Salt Lake City , or Orange County.

PROP 8 MAPS

Filed09/15/09 Page15 of 15

Map data ©2009 Tele Atlas - Terms of Use

Proposition 8 changed the California state constitution to prohibit same-sex marriage. These are
the people who donated in order to pass it.

A mash-up of Google Maps and Prop 8 Donors.

Case3:09-cv-02292-VRW Document187-9