NO.

09-3288

IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT __________________________________________________________________ In re: Grand Jury Investigation ________________________________________________________________ On Appeal from the Decision of the United States District Court, For the District of Kansas The Honorable Judge Julie A. Robinson Presiding District Court No. 09-404 JAR __________________________________________________________________ BRIEF AMICI CURIAE OF THE INSTITUTE FOR JUSTICE AND REASON FOUNDATION IN SUPPORT OF DEFENDANT-APPELLANT SIOBHAN REYNOLDS __________________________________________________________________

GEOFFREY J. MICHAEL ANNA K. THOMPSON MARJORIE R. LEVINE Arnold & Porter LLP 555 Twelfth Street, N.W. Washington, D.C. 20004 (202) 942-5000 Attorneys for Amici Curiae Institute for Justice and Reason Foundation

CORPORATE DISCLOSURE STATEMENT Pursuant to Fed. R. App. P. 26.1, the Amici make the following disclosure: Amicus Curiae -- the Institute for Justice -- has no parent corporation, and no publicly held company owns ten percent or more of the Institute’s stock. Amicus Curiae -- Reason Foundation -- has no parent corporation, and no publicly held company owns ten percent or more of Reason’s stock.

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CONSENT OF PARTIES TO FILING OF BRIEF Pursuant to Fed. R. App. P. 29(a), the Amici have received consent to file this amici brief from all counsel of record.

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TABLE OF CONTENTS Corporate Disclosure Statement.............................................................................. i Consent of Parties to Filing of Brief....................................................................... ii Interest of Amici Curiae..........................................................................................1 Summary of Argument ...........................................................................................3 Argument................................................................................................................5 I. Disclosure of the Type of Information Called for by the Grand Jury Subpoenas Here Chills Speech and Burdens the Right to Engage in Anonymous Speech and Association .........................................................................................5 A. B. The First Amendment Protects the Right to Anonymous Speech and Association........................................................................ 6 Disclosure Pursuant to the Grand Jury Subpoenas Creates a Disincentive to Engage in Political and Social Advocacy Groups ................................................................................... 13 1. Courts Have Previously Recognized the Potential Chilling Effect of Mandatory Disclosure and Presumed Its Existence Wherever the Government Seeks Mandatory Disclosure.................................................. 13 2. New Data Reveals That the Chilling Effect of Mandatory Disclosure Is More Pervasive and Forceful Than Previously Recognized................................................. 17 Fear of Reprisals for Compliance with Such Disclosure Requirements Is Both Real and Reasonable ........................... 20

C. II.

Disclosure of Information Regarding an Advocacy Group’s Political Strategies Violates the First Amendment Right to Association .....................................................25

Conclusion............................................................................................................30 Certificate of Compliance .................................................................................... vii Certificate of Service .......................................................................................... viii

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TABLE OF AUTHORITIES Page(s) CASES AFL-CIO v. FEC, 333 F.3d 168 (D.C. Cir. 2003) .........................................................................26 Barnes v. E-Systems, Inc. Group Hosp. Med. & Surgical Ins. Plan, 501 U.S. 1301 (1991).......................................................................................22 Brown v. Socialist Workers ’74 Campaign Comm. (Ohio), 459 U.S. 87 (1982).......................................................................................9, 14 Davenport v. Washington Education Ass’n, 551 U.S. 177 (2007)...........................................................................................1 Doe v. Reed, Nos. 09-35818, 09-35826, 09-35863, 2009 WL 3401297 (9th Cir. Oct. 22, 2009)..........................................................................................................22 Doe v. Reed, No. 09-559, 2009 WL 3727712 (Nov. 6, 2009)................................................23 Doe v. Reed, No. 09A356, 2009 WL 3358149 (U.S. Sup. Ct. Oct. 20. 2009)........................22 Doe v. Reed, No. C09-5456BHS, 2009 WL 2971761 (W.D. Wash. Sept. 10, 2009) .......21, 22 Heartland Surgical Specialty Hospital, LLC v. Midwest Division, Inc., No. 05-2164-MLW-DWB, 2007 WL 852521 (D. Kan. Mar. 16, 2007) ....passim In re Motor Fuel Temperature Sales Practices Litig., 258 F.R.D. 407 (D. Kan. 2009).................................................................passim McConnell v. FEC, 540 U.S. 93 (2003).............................................................................................1 McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995).....................................................................................7, 13 NAACP v. Alabama, 357 U.S. 449 (1958)..................................................................................passim
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Nat’l Commodity & Barter Ass’n v. United States, 951 F.2d 1172 (10th Cir. 1991)........................................................................10 Pleasant v. Lovell, 876 F.2d 787 (10th Cir. 1989)......................................................................5, 26 Pollard v. Roberts, 283 F. Supp. 248 (E.D. Ark. 1968) ................................................ 10, 15, 24, 25 Randall v. Sorrell, 548 U.S. 230 (2006)...........................................................................................1 Roberts v. U.S. Jaycees, 468 U.S. 609 (1984)...........................................................................................6 Talley v. California, 362 U.S. 60 (1960).............................................................................................7 United States v. Schneider, No. 07-10234-MLB (D. Kan. Apr. 4, 2008) (Docket #57) ...........................5, 29 United States v. Schneider, No. 07-10234-MLB (D. Kan. July 10, 2008) (Docket #146).................. 5, 12, 29 Wisconsin Right to Life, Inc. v. FEC, 546 U.S. 410 (2006)...........................................................................................1 Wyoming v. United States Department of Agriculture, 208 F.R.D. 449 (D.D.C. 2002) ...................................................................27, 28 STATUTES AND RULES 10th Cir. R. 29 ........................................................................................................1 OTHER AUTHORITIES Andres Araiza, Prop 8 Threat: Fresno Police Close to Arrest, abc30.com, Oct. 31, 2008, available at http://abclocal.go.com/kfsn/story?section=news/local&id=6479879................20

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Associated Press, Advocate Subject to Grand Jury, TOPEKA CAPITAL-J., Apr. 14, 2009, available at http://cjonline.com/news/local/2009-0414/advocate_subject_to_grand_jury#.................................................................8 Associated Press, John Kerry Grills Belgium Ambassador Nominee Over Swift Boat Donation, foxnews.com, Feb. 28, 2007, available at http://www.foxnews.com/story/0,2933,255341,00.html...................................21 Carol J. Williams, Petition Signers Against Expanded Gay Rights Can’t Keep Names Secret, L.A. TIMES, Oct. 23, 2009, available at http://www.latimes.com/news/nationworld/nation/la-na-courtconfidential23-2009oct23,0,7762080.story ......................................................21 Daniel J. Solove, The First Amendment As Criminal Procedure, 82 N.Y.U. L. REV. 112, 148 (2007)...............................................................................7, 14 Dick M. Carpenter II, Ph.D., Disclosure Costs: Unintended Consequences of Campaign Finance Reform, Institute for Justice, Mar. 2007, available at http://www.ij.org/images/pdf_folder/other_pubs/DisclosureCosts.pdf ......passim Frank Owen, The DEA’s War on Pain Doctors, 48 VILLAGE VOICE, Nov. 5, 2003, available at 2003 WLNR 13347083.......................................................23 Harvey A. Silverglate, Wichita Witch Hunt, FORBES, Sept. 1, 2009, available at http://www.forbes.com/2009/09/01/siobhan-reynolds-pain-reliefnetwork-wichita-justice-department-opinions-contributors-harvey-asilverglate.html. ...........................................................................................9, 24 Jacob Sullum, Drug Control Becomes Speech Control: A Federal Prosecutor Tries to Silence a Pain Treatment Activist, REASON, Sept. 9, 2009, available at http://reason.com/archives/2009/09/09/drug-controlbecomes-speech-co ......................................................................................8, 23 John R. Lott, Jr. & Bradley Smith, Donor Disclosure Has Its Downsides: Supporters of California's Prop. 8 Have Faced a Backlash, WALL ST. J., Dec. 26, 2008...................................................................................................20 Ronald T. Libby, Treating Doctors As Drug Dealers: The DEA’s War on Prescription Painkillers, CATO INSTITUTE - POLICY ANALYSIS, June 16, 2005, available at http://www.cato.org/pubs/pas/pa545.pdf.............................23

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Steve Lopez, A Life Thrown in Turmoil by $100 Donation for Prop. 8, L.A. TIMES, Dec. 14, 2008 .......................................................................................20

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INTEREST OF AMICI CURIAE Pursuant to Rule 29 of this Court, the Institute for Justice (the “Institute”) and the Reason Foundation (“Reason”) (collectively, the “Amici”), respectfully submit this amici curiae brief in support of Appellant Siobhan Reynolds. The Institute is a nonprofit public interest legal center dedicated to defending the essential foundations of a free society: private property rights, economic and educational liberty, and the free exchange of ideas. The Institute litigates First Amendment cases throughout the country and files amicus curiae briefs in important cases nationwide, including the Supreme Court’s decisions in Davenport v. Washington Education Ass’n, 551 U.S. 177 (2007); Randall v. Sorrell, 548 U.S. 230 (2006); Wisconsin Right to Life, Inc. v. FEC, 546 U.S. 410 (2006); and McConnell v. FEC, 540 U.S. 93 (2003). The Institute regularly advocates on behalf of individuals whose right to speak and associate has been infringed by the actions of the government. Further, the Institute has published recent empirical studies discussing the burdens and costs of compelled disclosure requirements. See Dick M. Carpenter II, Ph.D., Disclosure Costs: Unintended Consequences of Campaign Finance Reform, Institute for Justice, Mar. 2007, available at http://www.ij.org/images/pdf_folder/other_pubs/DisclosureCosts.pdf (last visited Dec. 7, 2009) (Ex. A). Thus, the Institute believes that its legal perspective, experience, and empirical research will provide this Court with

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valuable insights regarding the impact of mandatory disclosure on associational activity. Reason Foundation is a national, nonpartisan, and nonprofit public policy think tank, founded in 1978. Reason's mission is to promote liberty by developing, applying, and communicating libertarian principles and policies, including free markets, individual liberty, and the rule of law. Reason promotes policies that allow and encourage individuals and voluntary institutions to flourish. Reason advances its mission by publishing Reason magazine, as well as commentary on its websites -- www.reason.com, www.reason.org, and www.reason.tv, and by issuing policy research reports that promote choice, competition, and a dynamic market economy as the foundation for human dignity and progress. Among other issues, Reason has focused on the adverse consequences of drug policy, including drug control's role in impeding chronic pain patients from obtaining adequate pain treatment. To further Reason's commitment to “Free Minds and Free Markets,” Reason selectively participates as amicus curiae in cases raising significant constitutional issues. These include cases involving First Amendment speech and associational issues as well as drug policy issues involving the hardship caused by federal interference with medicallynecessary treatment permitted under state law.

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SUMMARY OF ARGUMENT Just months after the District Court denied the government’s motion to gag Appellant on First Amendment grounds in Schneider (the criminal prosecution underlying the allegations of obstruction of justice here), the government launched a grand jury investigation of Appellant that is likely based on the same allegations made in the government’s motion to gag. The subpoenas directed at Appellant in the grand jury investigation reportedly require her to provide information that effectively discloses the identities of Pain Relief Network’s (“PRN”) members, donors, and supporters. Wherever the government seeks to compel the disclosure of materials that would reveal an advocacy organization’s membership, communications, and related materials, as the government seeks to do here, courts have required that the government show that it has a compelling interest in the disclosure and that the materials that it seeks are substantially related to this interest. Courts have long recognized that a driving force behind the rationale for application of strict scrutiny in this context is the recognition that the mandatory disclosure of membership information of advocacy groups creates a chilling effect that infringes on the members’ First Amendment liberty to engage in political association anonymously. Newly available empirical studies and political events not only confirm this chilling effect, but also suggest that it may be more powerful and pervasive than courts had previously assumed.

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In addition to revealing PRN’s members, donors, and supporters, the subpoenas further threaten Appellant’s First Amendment rights by calling for the disclosure of materials that will reveal Appellant’s advocacy strategies to political opponents. Through the subpoenas, the Schneider prosecutors -- the very government agents whose actions Appellant and PRN oppose -- effectively receive PRN’s strategies for challenging governmental policies on pain relief treatment. Faced with similar situations, courts have repeatedly found that unconstitutional interference with an advocacy group’s internal workings includes the forced exposure of an organization’s political strategies to political opponents. Given the chilling effect that the subpoenas will have on Appellant’s right to associate, and the potential exposure of Appellant’s and PRN’s political strategies to the government, the Amici urge this Court to rigorously apply strict scrutiny, requiring the government to meet the heavy burden of demonstrating a compelling need for the disclosure and that the disclosure is the only means to obtain the information that the government requires. The government has already failed to meet that burden once, when it tried to gag Appellant. This Court should hold that the government has similarly failed to meet that burden in this proceeding, and reverse the decision of the lower court.

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ARGUMENT I. Disclosure of the Type of Information Called for by the Grand Jury Subpoenas Here Chills Speech and Burdens the Right to Engage in Anonymous Speech and Association On the heels of an unsuccessful motion to gag Appellant,1 the government now pursues another avenue -- subpoenas pursuant to a grand jury investigation -that poses a significant threat to Appellant’s First Amendment rights. As the Supreme Court and the courts of this Circuit have long recognized, the First Amendment protects the right to anonymous speech and expressive association. See NAACP v. Alabama, 357 U.S. 449, 462 (1958) (recognizing “the vital relationship between freedom to associate and privacy in one’s associations”); Pleasant v. Lovell, 876 F.2d 787, 795 (10th Cir. 1989) (“There are a number of ways in which government action may infringe upon a group member’s right to associate with others to promote an unpopular viewpoint. These include . . . requiring disclosure of group membership when anonymity is desired.”) (citations omitted). For this reason, wherever the government seeks to compel the disclosure of materials that would reveal an advocacy organization’s membership, communications, and related materials, courts have required that the government
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Government’s Mot. Pursuant to Local Rule 83.2.3, United States v. Schneider, No. 07-10234-MLB (D. Kan. Apr. 4, 2008) (Docket #57); Mem. and Order, United States v. Schneider, No. 07-10234-MLB (D. Kan. July 10, 2008) (Docket #146) (unpublished) (denying the government’s motion to restrict Appellant from speaking with the media).

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show that it has a compelling interest in the disclosure and that the materials that it seeks are substantially related to this interest. And, under the prior case law, this high burden should be placed on the government in every instance. The prior case law requiring application of strict scrutiny to the government’s actions here rests on the valid premise that disclosure relating to speech and associational activities of the type mandated by the grand jury subpoenas and District Court’s order in this case can significantly chill an advocacy organization’s ability to exercise its First Amendment rights due to a reasonable fear of reprisal. Recently performed empirical research demonstrates that the breadth and scope of the chilling effect is even greater than previously envisioned. The newly available data shows that the source of the chilling effect described in prior case law -- the reasonable fear of reprisals -- pervades almost every instance where the government seeks to mandate disclosure of information of the nature at issue here. A. The First Amendment Protects the Right to Anonymous Speech and Association

The Supreme Court has clearly held that the First Amendment’s guarantee of the right to free speech includes the right to expressive association, i.e., association “for the purpose of engaging in those activities protected by the First Amendment -- speech, assembly, petition for the redress of grievances.” Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984). As the Supreme Court explained in NAACP v.
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Alabama, 357 U.S. 449 (1958), “[e]ffective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly.” Id. at 460; see also Daniel J. Solove, The First Amendment As Criminal Procedure, 82 N.Y.U. L. REV. 112, 148 (2007) (noting that First Amendment rights are implicated when information about associational activities is compelled by the government, even without public disclosure). The Supreme Court has further held that the First Amendment’s guarantees of free speech and expressive association include the right to anonymity while exercising those rights. For example, in NAACP, the Court, “recogniz[ing] the vital relationship between freedom to associate and privacy in one’s associations,” concluded that the mandatory disclosure of associational affiliation implicates core First Amendment rights. NAACP, 357 U.S. at 462. More recently, in McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995), the Court applied this principle to find that the First Amendment protects anonymity of the authorship of documents intended to influence the public. Id. at 357 (“[A]n author’s decision to remain anonymous . . . is an aspect of the freedom of speech protected by the First Amendment.”); see also Talley v. California, 362 U.S. 60, 65 (1960) (“We have recently had occasion to hold in two cases that there are times and circumstances

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when States may not compel members of groups engaged in the dissemination of ideas to be publicly identified.”). The subpoenas at issue here thus implicate Appellant’s First Amendment right to anonymous speech and expressive association by seeking to compel the disclosure of materials that would necessarily divulge the identity of Appellant’s supporters, donors, and members.2 Among other things, the grand jury subpoenas reportedly seek (1) communications by PRN’s members concerning the Schneider case, (2) bank and credit card statements, (3) correspondence related to a billboard commissioned by PRN, which reads: “Dr. Schneider Never Killed Anyone,” and (4) copies of and materials relating to an advocacy video produced by PRN. Associated Press, Advocate Subject to Grand Jury, TOPEKA CAPITAL-J., Apr. 14, 2009, available at http://cjonline.com/news/local/2009-0414/advocate_subject_to_grand_jury#; Jacob Sullum, Drug Control Becomes

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Like infringements into any other right, government intrusion upon the right to anonymous speech and expressive association can be either direct or indirect. See NAACP, 357 U.S. at 461 (“In the domain of these indispensable liberties, whether of speech, press, or association, the decisions of this Court recognize that abridgement of such rights, even though unintended, may inevitably follow from varied forms of governmental action.”). Here, the Assistant U.S. Attorney sought the subpoenas in question after the district court denied the government’s motion to gag. This sequence of facts strongly suggests that the government has issued these subpoenas in direct retaliation for Appellant’s political advocacy. At a minimum, the subpoenas constitute an indirect governmental intrusion of Appellant’s right to anonymous association, in that their enforcement would necessarily result in the disclosure of materials that reveal Appellant’s

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Speech Control: A Federal Prosecutor Tries to Silence a Pain Treatment Activist, REASON, Sept. 9, 2009, available at http://reason.com/archives/2009/09/09/drugcontrol-becomes-speech-co; Harvey A. Silverglate, Wichita Witch Hunt, FORBES, Sept. 1, 2009, available at http://www.forbes.com/2009/09/01/siobhan-reynoldspain-relief-network-wichita-justice-department-opinions-contributors-harvey-asilverglate.html. Whenever the government seeks to obtain information that would intrude upon the rights to anonymity in speech and expressive association as it does here, the government must show that it is acting in furtherance of an overwhelming and compelling interest and that there is a substantial relationship between that interest and its actions. See NAACP, 357 U.S. at 461 (“[S]tate action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.”); Brown v. Socialist Workers ’74 Campaign Comm. (Ohio), 459 U.S. 87, 91-92 (1982) (“The right to privacy in one’s political associations and beliefs will yield only to a ‘subordinating interest of the State [that is] compelling,’ and then only if there is ‘a substantial relationship between the information sought and [an] overriding and compelling state interest.’”) (citations omitted). This is no less true in the context of grand jury subpoenas; as the courts of this Circuit have routinely

associational membership and activities, regardless of the underlying motivation behind the issuance of the subpoenas.

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held, where any First Amendment freedom is implicated by a subpoena, the government must prove (1) a compelling need for the subpoenaed records, and (2) that the records bear a substantial relationship to the compelling interest. See Nat’l Commodity & Barter Ass’n v. United States, 951 F.2d 1172, 1174 (10th Cir. 1991); In re Motor Fuel Temperature Sales Practices Litig., 258 F.R.D. 407, 415-16 (D. Kan. 2009).3 This is a high burden, and courts in this Circuit have routinely quashed subpoenas seeking such materials. For example, in Heartland Surgical Specialty Hospital, LLC v. Midwest Division, Inc., No. 05-2164-MLW-DWB, 2007 WL 852521 (D. Kan. Mar. 16, 2007) (unpublished), the plaintiff subpoenaed the Kansas Hospital Association (KHA) -- a third-party association of hospitals -- to produce certain documents that, while relating to plaintiff’s litigation, would also have revealed information regarding KHA’s membership and activities. Id. at *1. KHA objected on First Amendment grounds. Id. The court noted that other courts have in a sense “taken judicial notice of the fact that disclosure of these internal

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In evaluating whether a compelling need for the information exists, courts consider the following: (1) the relevance of the evidence, (2) the necessity of receiving the information, (3) the availability of the information from other sources, and (4) the nature of the information. In re Motor Fuel, 258 F.R.D. at 416; see also Pollard v. Roberts, 283 F. Supp. 248, 256 (E.D. Ark. 1968) (noting that to be a valid subpoena, the subpoenaing party must (1) act within its jurisdiction, (2) request materials with specificity, and (3) request materials that are reasonably relevant to a compelling interest).

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associational activities—membership lists, volunteer lists, financial contributor lists, and political activities of the organization's members—will lead to threats, harassment, or reprisal, thereby chilling freedom of association.” Id. at *5 n.4 (quoting State v. U.S. Dep’t of Agric., 239 F. Supp. 2d 1219, 1238 n.14 (D. Wyo. 2002)). The district court quashed the subpoena, holding that the plaintiff could not show a compelling need for the documents so as to overcome the significant burdens on the First Amendment. Id. at *4, *7. Similarly, in In re Motor Fuel Temperature Sales Practices Litigation, 258 F.R.D. 407 (D. Kan. 2009), the court quashed in relevant part a subpoena that threatened to reveal an expressive association’s membership and other previously undisclosed information. See id. at 410. In that case, the plaintiff subpoenaed documents from third-party trade associations, seeking documents sufficient to identify the trade associations’ business and organizational structure, membership lists, and documents relating to advocacy and lobbying efforts. Id. at 411. The court noted that the identities of the trade associations’ anonymous members “go to the core of the First Amendment right to associate.” Id. at 416. Finding that “this factor weigh[ed] heavily against their disclosure,” the court quashed the subpoena in relevant part. Id. It is noteworthy that the district court in Schneider denied a similar government motion to gag Appellant for failure to show a compelling interest. See

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generally Mem. and Order, United States v. Schneider, No. 07-10234-MLB (D. Kan. July 10, 2008) (Docket #146) (unpublished). In that order, the Schneider court found that the government’s allegations that Appellant had obstructed justice by influencing the jury pool (through exercising her freedom of speech) did not constitute a compelling interest so as to justify infringement on Appellant’s First Amendment rights. Id. at 3. Assuming that the rationale for the government’s motion to gag Appellant in the Schneider criminal case mirrors the claims in the present grand jury investigation, it is unlikely that the government’s interest is any more compelling in the instant case than it was in the former. Indeed, the circumstances of these present subpoenas, coming on the heels of an unsuccessful attempt to silence Appellant, strongly suggest that they are part of a calculated attempt to discourage Appellant from vocally criticizing what she views to be an unjust prosecution -- an interest that is not even legitimate, let alone compelling. Regardless, as discussed in the remainder of this section, the Amici file this amici brief to bring to this Court’s attention new information that sheds light on the bases of the Supreme Court’s jurisprudence concerning the right to anonymous speech and expressive association. The Supreme Court’s recognition of the right to anonymous expressive association and speech and the requirement that the government’s efforts to breach those rights pass strict scrutiny rests, in large part, on the correct assumption that mandatory disclosure of the identities of an

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association’s membership and details regarding its activities necessarily has a chilling effect on that association’s and its members’ speech. As described below, new research has revealed that the magnitude of this chilling effect is far greater than previously suspected. Accordingly, it is vital that this Court ensure that the government meets its heavy burden in this case. B. Disclosure Pursuant to the Grand Jury Subpoenas Creates a Disincentive to Engage in Political and Social Advocacy Groups 1. Courts Have Previously Recognized the Potential Chilling Effect of Mandatory Disclosure and Presumed Its Existence Wherever the Government Seeks Mandatory Disclosure

As described above, the Supreme Court repeatedly has recognized that compelled disclosure imposes a serious burden on First Amendment rights. See supra Part I.A at 6-10; see also McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 346-47 (1995) (discussing the significant burdens an Ohio statute, which prohibited the distribution of anonymous campaign literature, had on the First Amendment). An indispensable part of the Supreme Court’s rationale in recognizing the right to anonymous political association was the “chilling” effect that forced disclosure of an advocacy group’s internal documents has on that organization and its members, donors, and supporters. For example, in NAACP, the Court found that mandatory disclosure of information that would reveal the NAACP’s membership would “likely [] affect adversely the ability of [the NAACP] and its members to pursue their collective effort to foster beliefs which

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they admittedly have the right to advocate, in that it may induce members to withdraw from the Association and dissuade others from joining it because of fear of exposure of their beliefs shown through their associations and of the consequences of this exposure.” NAACP, 357 U.S. at 462-63. Similarly, in Brown v. Socialist Workers ’74 Campaign Committee (Ohio), the Court found that if the names of contributors and recipients of disbursements of the Socialist Workers Party were disclosed, the chilling effect of the disclosures would “cripple a minor party’s ability to operate effectively and thereby reduce the free circulation of ideas both within and without the political arena.” Brown, 459 U.S. at 97-98 (citations and internal quotation marks omitted). One academic has explained the manner by which governmental action mandating disclosure of information chills speech as follows: “[G]overnment information gathering will often indirectly affect the exercise of First Amendment rights by discouraging expressive and associational activity. . . . [Such a] chilling effect occurs when individuals seeking to engage in activity protected by the [F]irst [A]mendment are deterred from so doing by governmental regulation not specifically directed at that protected activity.” Solove, supra, at 142-43 (citations and quotations omitted); see also NAACP, 357 U.S. at 462 (discussing reprisals associated with disclosure of associational information); Brown, 459 U.S. at 96-97

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(discussing the “threat to First Amendment rights that would result from requiring minor parties to disclose the recipients of campaign disbursements”). The chilling effect that results where the government mandates disclosure of the sorts of materials sought by the government here is so well-recognized that courts have routinely held that a party asserting First Amendment privileges does not need to make a prima facie showing of an actual chilling effect in order to trigger the application of strict scrutiny. See In re Motor Fuel, 258 F.R.D. at 414 n.24 (“The court notes that a concrete showing of infringement upon associational rights is not necessary for the privilege to apply.”); see also Pollard, 283 F. Supp. at 258 (“While there is no evidence of record in this case that any individuals have as yet been subjected to reprisals . . . it would be naïve not to recognize that the disclosure of the identities of contributors to campaign funds would subject at least some of them to potential economic or political reprisals of greater or lesser severity.”). In this same vein, courts in this Circuit have required that parties challenging disclosure requirements make only a minimal showing that disclosure may infringe upon their First Amendment rights, in essence presuming First Amendment implications of mandatory disclosure. Heartland, 2007 WL 852521, at *4 (rejecting the plaintiff’s argument that the First Amendment privilege only protects the “relatively powerless” from serious threats of economic reprisals, loss of

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employment, or threat of physical coercion); In re Motor Fuel, 258 F.R.D. at 413 (“Courts have applied a presumption of privilege to information that goes to the core of a group’s associational activities, finding that disclosure of such information would very likely chill freedom of association.”). Indeed, the types of compelled disclosure at issue here4 are so intrusive that “federal courts assume, sometimes implicitly, that the party seeking protection [of an advocacy association’s internal documents] has made his prima facie showing” that its First Amendment rights are implicated. Heartland, 2007 WL 852521, at *5 (internal quotations and citations omitted); see also In re Motor Fuel, 258 F.R.D. at 413 (“To the extent that . . . subpoenas seek confidential membership lists and financial contributor lists [of associations], the court easily finds this information goes to the core of the associations’ activities and is prima facie privileged.”). This prior case law makes perfect sense for two reasons. First, any test for determining the validity of a government-mandated disclosure under the First Amendment that required that, for the test even to be applied, the speaker or association must actually have already experienced threats, harassment, or reprisals, or a reasonable fear thereof, would itself place an irreparable burden on

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Both attempted mandatory disclosure of membership where anonymity is desired and attempted interference with an advocacy group’s internal organizations are recognized infringements on the First Amendment. Heartland, 2007 WL 852521, at *4 (citing at Pleasant v. Lovell, 876 F.2d 787, 795 (10th Cir. 1989)).

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First Amendment freedoms. Requiring the restaurant owner first to suffer the economic harm of boycotts for exercising his right to anonymously donate money to a political cause, see infra Part I.C at 20, or requiring Appellant to experience a criminal prosecution for simply supporting an unpopular cause unjustifiably violates fundamental rights. The chilling effect on speakers and associational members will have already taken its toll. Second, in the technological age, the likelihood of broad public disclosure, and subsequent repercussions from that disclosure, increases significantly. Certain precautions such as grand jury secrecy or the sealing of documents by the court, while well-intentioned, cannot fully protect the speaker-advocacy group from reprisals. At the same time, it may not be possible for the speaker-advocacy group to identify the potential sources of threats. The only effective way to mitigate this risk is to presume that speakers may maintain anonymity regarding their political speech and associations, and always to place the burden squarely on the government to satisfy strict scrutiny if it wishes to compel the disclosure of that information. 2. New Data Reveals That the Chilling Effect of Mandatory Disclosure Is More Pervasive and Forceful Than Previously Recognized

In 2007, Dr. Dick Carpenter conducted a study to explore the scope and magnitude of the chilling effects of mandatory disclosure requirements. See Dick

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M. Carpenter II, Ph.D., Disclosure Costs: Unintended Consequences of Campaign Finance Reform, Institute for Justice, Mar. 2007, available at http://www.ij.org/images/pdf_folder/other_pubs/DisclosureCosts.pdf (last visited Dec. 7, 2009) (Ex. A). Dr. Carpenter’s research not only confirms what courts and other legal jurists have long suggested about the chilling effect of mandatory disclosure, but also shows that the courts were too conservative in estimating the magnitude of the chilling effect. The results revealed that although people in the first instance generally favored disclosure of information (specifically campaign finance contributions), they became very concerned with such disclosure when posed questions implicating a scenario by which they were personally affected by the requirements: More than 82 percent of respondents agreed or strongly agreed with the idea [of mandatory contribution disclosure requirements] . . . . Yet, support for disclosure wanes considerably when the issue is personalized . . . . [M]ore than 56 percent disagreed or strongly disagreed that their identity should be disclosed, and the number grew to more than 71 percent when disclosure of their personal information included their employer’s name. . . . Id. at 7-8. In other words, 71 percent of respondents opposed forced disclosure of identifying information in the context of campaign contributions. Dr. Carpenter’s study further found that the desire to engage in anonymous political speech and association was the primary concern of those wary of disclosure of personal information:
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When asked . . . why they would think twice if their personal information was disclosed, the reason most often given (54 percent) was a desire to keep their contribution anonymous. Responses such as, “Because I do not think it is anybody’s business what I donate and who I give it to,” and “I would not want my name associated with any effort. I would like to remain anonymous,” typified this group of responses. . . . Respondents also most often cited the issue of anonymity (32 percent) when asked why they would think twice before donating if their employer’s name were disclosed. In this case, the concern was over revealing where they work. Id. at 8-9 (emphasis in original). In sum, Dr. Carpenter’s study reveals that, in the context of campaign contributions, the speech of a large percentage of people would be chilled by the government mandating disclosure of identifying information. That finding is no less relevant here, where the government has attempted to mandate disclosure of identifying information of an advocacy organization’s members, donors, and supporters pursuant to grand jury subpoenas. These new findings lay bare the full force of the chilling effect that results whenever the government seeks mandatory disclosure of the type of information sought by the subpoenas in the instant case. And, based on these findings, this Court should not make the mistake of underestimating or paying mere lip service to the high burden that the government must meet in order to require disclosure here.

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C.

Fear of Reprisals for Compliance with Such Disclosure Requirements Is Both Real and Reasonable

Dr. Carpenter’s study demonstrates the existence of a chilling effect through rigorous empirical research; however, the extent of the chilling effect is also evident from recent events. Within the last few years, both supporters and opponents of California's Proposition 8 were subject to reprisals after passage of the law. In many instances, the identity of these supporters was made public through mandatory government disclosure. See Steve Lopez, A Life Thrown in Turmoil by $100 Donation for Prop. 8, L.A. TIMES, Dec. 14, 2008 (discussing the boycott of a restaurant whose owner donated money in support of Proposition 8); Andres Araiza, Prop 8 Threat: Fresno Police Close to Arrest, abc30.com, Oct. 31, 2008, available at http://abclocal.go.com/kfsn/story?section=news/local&id= 6479879 (“Supporters of gay marriage are also being harassed. Over night someone tore up signs at the Clovis Unitarian Universalist Church. Reverend Bryan Jessup said every night they endure vandalism because they oppose Prop 8.”); John R. Lott, Jr. & Bradley Smith, Donor Disclosure Has Its Downsides: Supporters of California's Prop. 8 Have Faced a Backlash, WALL ST. J., Dec. 26, 2008 (describing the economic retaliation suffered by donors in support of the proposition). And, this emerging pattern of retribution against the members, supporters, and donors of advocacy groups has not been not limited to advocates on either side of Proposition 8. See, e.g., Associated Press, John Kerry Grills
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Belgium Ambassador Nominee Over Swift Boat Donation, FoxNews.com, Feb. 28, 2007, available at http://www.foxnews.com/story/0,2933,255341,00.html (“A Senate hearing that began with glowing tributes to a St. Louis businessman and his qualifications to become ambassador to Belgium turned bitterly divisive Tuesday after he was criticized for supporting a controversial conservative group.”). The reasonableness of fear of retaliation for expressive activities is further exemplified by the ongoing Doe v. Reed litigation in Washington State, involving the attempts by pro-gay marriage advocates to obtain the identities of those who signed a Washington State petition seeking to place a referendum on the ballot that would repeal a gay-marriage law. Relying on the right to anonymous speech and expressive association, Protect Marriage Washington -- the advocacy group that had collected the signatures -- sought to enjoin the State from disclosing the names. See Doe v. Reed, No. C09-5456BHS, 2009 WL 2971761, at *1 (W.D. Wash. Sept. 10, 2009) (unpublished).5 The District Court for the Western District of Washington found that one likely purpose of those seeking the disclosure is to put those citizens in the public spotlight, thereby discouraging those citizens and others from engaging in similar speech in the future, id. at *4 (noting that the

5

See also Carol J. Williams, Petition Signers Against Expanded Gay Rights Can’t Keep Names Secret, L.A. TIMES, Oct. 23, 2009, available at http://www.latimes.com/news/nationworld/nation/la-na-court-confidential232009oct23,0,7762080.story (citing the Proposition 8 example).

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purpose of releasing the names is to “encourage individuals to contact and to have a personal and uncomfortable conversation with any person who signed the petition”) (internal quotation marks omitted); the court therefore held that the disclosure would likely violate First Amendment protections and preliminarily enjoined the State from revealing the names on the petition. Id. at *11. While the Ninth Circuit reversed,6 just weeks ago, the Supreme Court stayed the Ninth Circuit’s judgment. See Order in Pending Case, Doe v. Reed, No. 09A356, 2009 WL 3358149 (U.S. Sup. Ct. Oct. 20. 2009) (mem.) (unpublished). In making this decision, the Supreme Court necessarily decided that there is 1) “a reasonable possibility that certiorari will be granted,” 2) “a significant possibility that the judgment [of the Ninth Circuit] will be reversed,” and 3) a likelihood of irreparable harm (assuming the correctness of [Protect Marriage Washington’s] position) if the judgment is not stayed.” Barnes v. E-Systems, Inc. Group Hosp. Med. & Surgical Ins. Plan, 501 U.S. 1301, 1302 (1991) (Scalia, J., in chambers) (citing Times-Picayune Pub. Corp. v. Schulingkamp, 419 U.S. 1301, 1305 (1974) (Powell, J., in chambers)). Cf. Doe, 2009 WL 2971761, at *5-*11 (explaining the district court’s finding in support of a preliminary injunction). On November 6, 2009, Protect Marriage Washington filed a petition for writ of certiorari, which

6

Doe v. Reed, Nos. 09-35818, 09-35826, 09-35863, 2009 WL 3401297, at *7 (9th Cir. Oct. 22, 2009) (unpublished).

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remains before the Supreme Court. Petition for Writ of Certiorari, Doe v. Reed, No. 09-559, 2009 WL 3727712 (Nov. 6, 2009). As these recent incidents show, the chilling effect found by Dr. Carpenter’s study has a basis in real and recent events. Indeed, in this very case, members of the press have speculated that the government initiated a criminal investigation because of Appellant’s public support of the Schneiders and the use of pain relief medications. See Jacob Sullum, Drug Control Becomes Speech Control: A Federal Prosecutor Tries to Silence a Pain Treatment Activist, REASON, Sept. 9, 2009, available at http://reason.com/archives/2009/09/09/drug-control-becomesspeech-co; see also Frank Owen, The DEA’s War on Pain Doctors, 48 VILLAGE VOICE, Nov. 5, 2003, available at 2003 WLNR 13347083 (describing a patient who suffers from chronic pain as well as from the public “shame and fear” that come with using opiods); id. (describing the increased investigations and prosecutions of pain relief doctors); Ronald T. Libby, Treating Doctors As Drug Dealers: The DEA’s War on Prescription Painkillers, CATO INSTITUTE - POLICY ANALYSIS, June 16, 2005, available at http://www.cato.org/pubs/pas/pa545.pdf (describing DEA prosecutions of pain relief doctors). Regardless of whether these reports are correct,7 the very fact of the reports will unavoidably have a chilling

7

This would not be the first time that persons and organizations advocating for pain relief reform have been the target of governmental investigations.

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effect on the general populace. In sum, anecdotal evidence and the facts of this case support the longstanding conclusion of courts and Dr. Carpenter’s findings that a potent chilling effect adheres where the government seeks to mandate disclosure of the type of materials that the government seeks from Appellant here. Considering the significant cost to fundamental rights, where the government seeks to subpoena information that implicates the First Amendment, the Court should hold the government to the highest standard of showing a compelling interest that is substantially related to the document requests. See Heartland, 2007 WL 852521, at *5-*7; In re Motor Fuel, 258 F.R.D. at 412 (noting that in the discovery context, compelled production pursuant to a subpoena requires “the party seeking disclosure to demonstrate its interests in obtaining the information outweigh the other party’s interests in not disclosing the information”); Pollard, 283 F. Supp. at 257-58 (holding that mere suspicion of a crime is insufficient to meet the high burden of showing that disclosure of member identities was reasonably relevant to the criminal investigation); see id. at 258 (“We think that in order to overcome the prohibitions of that Amendment the defendant was required to make a far greater

Silverglate, supra (describing the over 400 criminal prosecutions of pain relief doctors and the prosecution of their advocates).

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showing of relevancy and public interest in the disclosure than has been made here.”). * * *

In sum, prior precedent requires the government to show a compelling interest that is substantially related to the document requests to prevail in this appeal. See Heartland, 2007 WL 852521, at *5-*7; In re Motor Fuel, 258 F.R.D. at 412; Pollard, 283 F. Supp. at 257-58; see id. at 258. While courts have long recognized the chilling effect of mandatory disclosure as the genesis of this requirement, new data reveal that the magnitude and pervasive nature of the chilling effect is even greater than previously envisioned. And, given recent events, the fear of reprisals that results in this chilling effect is both real and reasonable. The Amici therefore urge this Court to apply the “closest scrutiny” to the government’s attempt to infringe on Appellant’s rights, NAACP, 357 U.S. at 461, and reverse the decision of the lower court. II. Disclosure of Information Regarding an Advocacy Group’s Political Strategies Violates the First Amendment Right to Association In addition to violating Appellant’s rights to anonymous speech and expressive association, the disclosure of the documents called for by the subpoenas here would infringe upon Appellant’s First Amendment rights by revealing Appellant’s and PRN’s political strategies for advocating in favor of the prescription of pain treatment and against the prosecution of the Schneiders.
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As this Court recognized in Pleasant v. Lovell, 876 F.2d 787 (10th Cir. 1989), a “government action may infringe upon a group member’s right to associate with others to promote an unpopular viewpoint [by] . . . interfering with the internal workings of the group.” Id. at 795. Particularly with respect to organizations that advocate controversial views, the mandatory disclosure of documents that would reveal an advocacy group’s political strategies, thereby giving those who disagree with the organization’s views an unfair advantage, violates the First Amendment. See In re Motor Fuel, 258 F.R.D. at 415. The subpoenas issued to Appellant here reportedly therefore would violate her First Amendment rights by requiring her to turn over information that necessarily would reveal Appellant’s and PRN’s strategies for advocating against the prosecution of the Schneiders to the very Assistant U.S. Attorney prosecuting the Schneiders. For this very reason, faced with similar situations, courts have repeatedly found that unconstitutional interference with an advocacy group’s internal workings includes the forced exposure of an organization’s political strategies to political opponents. See, e.g., AFL-CIO v. FEC, 333 F.3d 168, 170 (D.C. Cir. 2003) (holding that an FEC regulation that would have required the disclosure of a political organizations’ strategy documents was “impermissible because it fails to account for the substantial First Amendment interests implicated in releasing political groups’ strategic documents and other internal materials”).

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For example, in Wyoming v. United States Department of Agriculture, 208 F.R.D. 449 (D.D.C. 2002), the district court granted a motion to quash subpoenas issued by the State of Wyoming to non-party environmental advocacy groups. Id. at 453. In that case, the State challenged forest-management regulations promulgated by the U.S. Department of Agriculture (USDA) as a violation of the Federal Advisory Committee Act (FACA). Id. at 451. The State argued that the regulations, which it alleged impaired forest health and denied access to large parts of state-owned land, were created with the assistance of an “advisory committee” that represented only the interests of the national environmental organizations, including the non-party witnesses, in violation of the FACA’s requirement that an advisory committee “ensure that membership of the committee represented a crosssection of groups interested in the subject.” Id. at 451-52. To bolster its claim that the USDA’s advisory committee violated the FACA, the State issued subpoenas to non-party environmental advocacy groups requesting all documents and communications the advocacy groups possessed relating to the regulations and their activities undertaken on behalf of the USDA. Id. at 452. The advocacy groups objected to the subpoenas as infringing on their right to association, arguing that the subpoenas were “an intrusive, ideologically motivated attempt by a state fighting environmental regulations to intrude into the strategy and policy ideas of environmental groups.” Id. at 453. The Court found that the “extraordinarily

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broad” subpoenas implicated the advocacy groups’ First Amendment rights by seeking “internal communications and strategic communications on policy issues with other environmental advocacy groups.” Id. at 454-55. The court further found that the State failed to meet its burden to allow for such an infringement on the groups’ First Amendment rights, and therefore quashed the subpoenas. Id. at 455. Courts in the Tenth Circuit have similarly quashed subpoenas that required the disclosure of documents that would reveal advocacy groups’ political strategies. See Heartland, 2007 WL 852521 at *4-*5 (quashing subpoenas issued to third-party hospital association based on court’s conclusion that, even if association had not shown that production of the requested documents would threaten or intimidate the association’s members, “the attempt to require production of [the association’s] evaluations of possible legislation and legislative strategy . . . is precisely the type of internal associational activity and past political activity that the First Amendment is designed to protect”); In re Motor Fuel, 258 F.R.D. at 415, 418 (denying motion to compel various trade associations to disclose documents relating to their lobbying efforts because such disclosure, which “could be used by plaintiffs to gain an unfair advantage over defendants in the political arena,” was “highly privileged because it involves a core associational activity protected by the First Amendment”).

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As discussed above, the Assistant U.S. Attorney here unsuccessfully attempted to silence Appellant in the Schneider case through a gag order. See supra Part I.A at 11-12. Characterizing Appellant as a “proxy” and “advisor” to the Schneider defendants with the political goal of “obtaining media coverage for herself and [PRN], on the backs of the [Schneider] defendants,” the Assistant U.S. Attorney asked the court to prohibit Appellant’s contact with witnesses. Government’s Mot. Pursuant to Local Rule 83.2.3, United States v. Schneider, No. 07-10234-MLB, at 6, 15-16 (D. Kan. Apr. 4, 2008) (Docket #57). The district court properly refused this request. See Mem. and Order, United States v. Schneider, No. 07-10234-MLB (D. Kan. July 10, 2008) (Docket #146) (unpublished). Having failed to silence Appellant with a gag order, the Assistant U.S. Attorney has now issued subpoenas that would gain broad access to communications, financial statements and other records of Appellant’s advocacy activities. Such disclosure would reveal Appellant’s and PRN’s political strategies for their campaign to support pain treatment, to overturn federal restrictions on pain medication, and to oppose prosecutions like that of the Schneiders. This disclosure would undoubtedly interfere with Appellant’s and PRN’s internal workings and infringe upon their First Amendment right to expressive association.

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CONCLUSION For the foregoing reasons, the Amici respectfully submit that this Court should reverse the decision of the district court.

Respectfully submitted,

/s/ Geoffrey J. Michael Geoffrey J. Michael Anna K. Thompson Marjorie R. Levine ARNOLD & PORTER 555 Twelfth Street, N.W. Washington, D.C. 20004-1206 (202) 942-5000 Attorneys for Amici Curiae Institute for Justice and Reason Foundation

Dated: December 7, 2009

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CERTIFICATE OF COMPLIANCE Pursuant to Fed. R. App. P. 32(a)(7)(B), the undersigned hereby affirms that the foregoing Brief Amici Curiae of the Institute for Justice and Reason Foundation in Support of Defendant-Appellant contains a total of 6685 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), as determined by the word processing system used to prepare this document (Microsoft Word 2007). Respectfully submitted, this 7th day of December, 2009.

/s/ Geoffrey J. Michael Geoffrey J. Michael

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CERTIFICATE OF SERVICE I hereby certify that I have this day served the foregoing Brief Amici Curiae of the Institute for Justice and Reason Foundation in Support of DefendantAppellant via clerk and by causing a true and correct copy of the same to be deposited in the United States Mail, first class, postage prepaid, and addressed as follows: Zachary A. Ives Molly Schmidt-Nowara Freedman Boyd Hollander Goldberg & Ives P.A. P.O. Box 25326 Albuquerque, NM 87125 Jay A. Rorty Scott M. Michelman American Civil Liberties Union Foundation -- Santa Cruz 1101 Pacific Avenue Suite 333 Santa Cruz, CA 95060 Stephen D. Bonney ACLU of Kansas & Western Missouri 3601 Main Street Kansas City, MO 64111 Tanya S. Treadway Asst. U.S. Attorney 290 U.S. Courthouse 444 S.E. Quincy Street Topeka, KS 66683 This 7th day of December, 2009. /s/ Geoffrey J. Michael Geoffrey J. Michael
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