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NO. 11-17255 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT KRISTIN PERRY, et al., Plaintiffs-Appellees, v. EDMUND G. BROWN, Jr. et al., Defendants, and DENNIS HOLLINGSWORTH, et al., Defendant-Intervenors-Appellants. Appeal from United States District Court for the Northern District of California Civil Case No. 09-CV-2292 JW (Honorable James Ware) APPELLANTS’ REPLY IN SUPPORT OF EMERGENCY MOTION FOR STAY PENDING APPEAL Andrew P. Pugno LAW OFFICES OF ANDREW P. PUGNO 101 Parkshore Drive, Suite 100 Folsom, California 95630 (916) 608-3065; (916) 608-3066 Fax Brian W. Raum James A. Campbell ALLIANCE DEFENSE FUND 15100 North 90th Street Scottsdale, Arizona 85260 (480) 444-0020; (480) 444-0028 Fax Charles J. Cooper David H. Thompson Howard C. Nielson, Jr. Peter A. Patterson COOPER AND KIRK, PLLC 1523 New Hampshire Ave., N.W. Washington, D.C. 20036 (202) 220-9600; (202) 220-9601 Fax

Attorneys for Appellants

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TABLE OF CONTENTS Page TABLE OF AUTHORITIES .....................................................................................v I. PROPONENTS’ APPEAL IS LIKELY TO SUCCEED. ...............................1 A. B. C. The district court’s order is contrary to law. .........................................1 The common-law right of access does not apply. .................................5 Even if the common-law right of access applied, it would not warrant unsealing the trial recording.....................................................8 The First Amendment right of access does not apply.........................11

D. II. III. IV.

PROPONENTS FACE IRREPERABLE HARM ABSENT A STAY. ........12 A STAY WILL NOT HARM PLAINTIFFS. ...............................................18 THE PUBLIC INTEREST WEIGHS IN FAVOR OF A STAY. .................18

CONCLUSION........................................................................................................20 EXHIBITS * Exhibit 1 – Order Granting Plaintiffs’ Motion to Unseal Digital Recording of Trial; Granting Limited Stay (Sept. 19, 2011) Exhibit 2 – Report of the Proceedings of the Judicial Conference of the United States (Sept. 17, 1996) Exhibit 3 – Letter from James C. Duff, Secretary of the Judicial Conference of the United States, to Senators Patrick J. Leahy and Jeff Sessions (July 23, 2009)
                                                            

Exhibits 1-36 were filed with Appellants’ Emergency Motion for Stay Pending Appeal; exhibits 37-48 are being filed with this Reply supporting the Motion. 
 

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Exhibit 4 – Report of the Proceedings of the Judicial Conference of the United States (Sept. 20, 1994) Exhibit 5 – Letter from Chief Judge Hug (June 21, 1996) Exhibit 6 – Local Rule 77-3 (Sept. 8, 2011) Exhibit 7 –Trial Transcript (Jan. 14, 2010) Exhibit 8 –Trial Transcript (Jan. 16, 2010) Exhibit 9 – Letter from Charles J. Cooper (Jan. 14, 2010) Exhibit 10 – Notice to Parties (Jan. 15, 2010) Exhibit 11 – Order (May 31, 2010) Exhibit 12 – Amended Protective Order Exhibit 13 – Notice to Court Clerk re Plaintiffs’ Request for a Copy of the Trial Recording (June 2, 2010) Exhibit 14 –Trial Transcript (June 16, 2010) Exhibit 15 – Notice to Court Clerk from Plaintiff-Intervenor City and County of San Francisco re Use of Video (June 2, 2010) Exhibit 16 – Order (June 9, 2010) Exhibit 17 – Excerpts from Findings of Fact and Conclusions of Law (Aug. 4, 2010) Exhibit 18 – Petition for a Writ of Certiorari, Hollingsworth v. United States Dist. Ct. (U.S. Apr. 8, 2010) Exhibit 19 – Order, Hollingsworth v. United States Dist. Ct. (U.S. Oct. 4, 2010) Exhibit 20 – Letter from Vaughn R. Walker to Ninth Circuit Court of Appeals Clerk (Apr. 14, 2011)

 

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Exhibit 21 – Order Denying Motion for Order Compelling Return of Trial Recordings (June 14, 2011) Exhibit 22 – Letter from Law Offices of Ephraim Margolin to Judge Ware (May 12, 2011) Exhibit 23 – Hearing Transcript (Aug. 29, 2011) Exhibit 24 – Order 2010-3 (9th Cir. Judicial Council Jan. 15, 2010) (Kozinski, C.J.) Exhibit 25 – Report of the Proceedings of the Judicial Conference of the United States (Sept. 14, 2010) Exhibit 26 – Letter from Charles J. Cooper to Chief Judge Walker (Dec. 28, 2009) Exhibit 27 – Exhibits Supporting Proponents’ Motion for Protective Order (Sept. 15, 2009) Exhibit 28 – Declaration of Ronald Prentice (Sept. 15, 2009) Exhibit 29 – Declaration of Frank Schubert (Sept. 15, 2009) Exhibit 30 – Declaration of Nicole Moss (Sept. 15, 2009) Exhibit 31 – Declaration of Hak-Shing William Tam (Sept. 15, 2009) Exhibit 32 – Declaration of Sarah Troupis (Sept. 15, 2009) Exhibit 33 –Trial Transcript (Jan. 15, 2010) Exhibit 34 –Trial Transcript (Jan. 11, 2010) Exhibit 35 – Judicial Conference Committee on Court Administration and Case Management, Guidelines for the Cameras Pilot Project in the District Courts Exhibit 36 – Reply Brief for Appellant, Citizens United v. FEC, 2009 WL 693638 (U.S. 2009) (No. 08-205)

 

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Exhibit 37 – Letter from Cathy A. Catterson, Circuit and Court of Appeals Executive, to Honorable John R. Tunheim (May 7, 2009) Exhibit 38 – Public Information Office Press Release: Ninth Circuit Judicial Council Approves Experimental Use of Cameras in District Courts Exhibit 39 – Letter from Thomas R. Burke to Vaughn R. Walker (Dec. 21, 2009) Exhibit 40 – Letter from Thomas R. Burke to Vaughn R. Walker (May 18, 2010) Exhibit 41 – The Price of Prop 8 (DIX458) Exhibit 42 – Scuffles Over Gay-Marriage Ballot Measure Lead to Injuries, Arrest (DIX1725) Exhibit 43 – Vandals Hit Prop 8 Supporters (DIX1792) Exhibit 44 – Disclosure, Magnified on the Web (DIX2525) Exhibit 45 – A Life Thrown into Turmoil by $100 Donation for Prop 8 (DIX2528) Exhibit 46 – L.A. College is Sued over Speech on Gay Marriage; Student Opposed to the Unions Says Teacher Reacted Improperly (DIX2533) Exhibit 47 – What Happens if You’re on Gay Rights’ ‘Ememies List’ (DIX2531) Exhibit 48 – Hearing Transcript (Aug. 29, 2011)

 

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TABLE OF AUTHORITIES Cases Page

Artukovic v. Rison, 784 F.2d 1354 (9th Cir. 1986)..................................................13 CBS, Inc. v. United States District Court, 765 F.2d 823 (9th Cir. 1985) ..................5 Estes v. Texas, 381 U.S. 532 (1965) ........................................................................12 Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122 (9th Cir. 2003).................19 Hollingsworth v. Perry, 130 S. Ct. 705 (2010)................................................ passim In re Providence Journal Co., 293 F.3d 1 (1st Cir. 2002)...................................6, 11 In re Roman Catholic Archbishop, No. 10-35206, 2011 WL 4375678 (9th Cir. Sept. 21, 2011)................................6 In re Sony BMG Music Entm’t, 564 F.3d 1 (1st Cir. 2009).................................3, 12 John Doe Agency v. John Doe Corp., 488 U.S. 1306 (1989)..................................13 Nixon v. Warner Commc’n, Inc., 435 U.S. 589 (1978) .......................................9, 11 Phillips ex rel. Estates of Byrd v. General Motors Corp., 307 F.3d 1206 (9th Cir. 2002) ........................................................................... 10 Rice v. Kempker, 374 F.3d 675 (8th Cir. 2004) .......................................................12 Times Mirror Co. v. United States, 873 F.2d 1210 (9th Cir. 1989).......................5, 8 United States v. Antar, 38 F.3d 1348 (3d Cir. 1994) .............................................. 11 United States v. Anzalone, 886 F.2d 229 (9th Cir. 1989) ........................................10 United States v. McDougal, 103 F.3d 651 (8th Cir. 1996)..................................7, 11 United States v. Schlette, 842 F.2d 1574 (9th Cir. 1988) .......................................10 United States v. Wunsch, 84 F.3d 1110 (9th Cir. 1996) ............................................2 Valley Broad. Co. v. United States District Court, 798 F.2d 1289 (9th Cir. 1986) ....................................................................7, 8, 11 Westmoreland v. Columbia Broad. Sys., 752 F.2d 16 (2d Cir. 1984) .....................12 Other 28 U.S.C. § 2071........................................................................................................6

 

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Considering the Role of Judges Under the Constitution of the United States: Hearing Before the Senate Judiciary Committee at 131:32 (2011), available at http://www.senate.gov/fplayers/jw57/urlMP4Player.cfm?fn=judiciary100511&s t=1170&dur=9752 ..............................................................................................17 Sandhya Somashekhar, Firm Defending Defense of Marriage Act Withdraws from Case, Washington Post, April 25, 2011..............................................................16

 

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This case presents a simple question—may a district court, barred from publicly broadcasting a trial by binding rule, well-established judicial policy, and an express decision by the Supreme Court enforcing these authorities against it in this very case, nevertheless publicly broadcast that trial, simply by (1) video recording the trial on the court’s express assurance that the recording will not be used for “purposes of public broadcasting or televising,” Ex. 7 at 754:21-23, (2) placing the video recording in the record under seal while reaffirming that “the potential for public broadcast” has been “eliminated,” Ex. 17 at 36, and (3) concluding a year later that the “common law right of access to judicial records” requires that the video recording be unsealed? If the answer to that question is yes, then the proceedings in this case will have caused grave and lasting injury to the integrity and credibility of the federal judiciary. The answer must therefore be no, and fortunately it plainly is, as demonstrated in our emergency stay application and explained more fully below. This Court should stay the order unsealing the trial recording pending the disposition of Proponents’ appeal. I. PROPONENTS’ APPEAL IS LIKELY TO SUCCEED. A. The district court’s order is contrary to law.

As we have demonstrated, see Stay Mot. 8-12, the ruling below violates Rule 77-3’s prohibition on the public broadcast of trial proceedings outside the courthouse, the longstanding policies of the Judicial Conference and this Court’s 1 
 

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Judicial Council against such broadcasts, and the Supreme Court’s decision enforcing these authorities in this very case. Plaintiffs offer no serious response to our arguments that the ruling violates Rule 77-3 and the Supreme Court’s decision, and they do not address the judicial policies at all. 1 1. Plaintiffs simply parrot the district court’s conclusory assertions,

which we have already refuted, that “Rule 77-3 speaks only to the creation of digital recordings of judicial proceedings for particular purposes and uses,” and does not “govern[] whether digital recordings may be placed into the record.” Pls. Op. 16-17. But as Plaintiffs’ counsel conceded below, the Rule’s “plain language goes to broadcasting and televising or recording for the purpose broadcasting,” Ex. 48 at 56:10-12, and nothing in the rule places any temporal limitation on the Rule’s distinct prohibition on public broadcasting. 2 Nor is there any dispute that
                                                            

Citing a nonbinding resolution approved at a Ninth Circuit Judicial Conference in 2007, see Ex. 37, and the dissenting opinion in Hollingsworth, the Media Coalition argues that the public broadcast of this trial did not violate the policy of the Judicial Conference or this Court. See MC Op. 14. But it was the 2009 pilot program, not the 2007 resolution, that purported to alter this Court’s longstanding policy. See Ex. 38 (purporting to “amend[] a 1996 Ninth Circuit policy” prohibiting broadcast “of court proceedings in the district courts”). And as the majority in Hollingsworth made clear, the pilot program “was not adopted after notice and comment procedures,” as is required by statute. 130 S.Ct. at 712.  2 The Media Coalition argues that this Court should defer to the district court’s interpretation of Rule 77-3. See MC Op. 13. But the very case it cites in support of this proposition declines to decide “the appropriate standard of review” in this context. United States v. Wunsch, 84 F.3d 1110, 1114 (9th Cir. 1996) (contrasting cases according deference to district courts’ interpretations of local rules with cases that “review de novo the determination that counsel violated the local rules”). In 2 
 

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unsealing the video recording would immediately and inevitably result in its public broadcast outside the courthouse—indeed that is the avowed purpose of Plaintiffs’ motion to unseal. See, e.g., Pls. Op. 3. Further, placing the unsealed trial recording on the internet-accessible public docket would itself publicly broadcast the trial proceedings beyond the confines of the courthouse. 2. Plaintiffs likewise merely repeat the district court’s claim that the

Supreme Court’s prior decision in this case held only that Judge Walker’s purported amendment of Rule 77-3 was procedurally invalid and “did not ‘express any views on the propriety of broadcasting court proceedings generally.’” Pls. Op. 17. They simply ignore both our contrary arguments and the Supreme Court’s clear holding that former Chief Judge Walker’s attempt to broadcast the trial proceedings “complied neither with existing rules or policies nor the required procedures for amending them,” as well as its conclusion that even “[i]f Local Rule 77-3 had been validly revised” to allow public broadcasting of trial proceedings pursuant to a pilot program, “[t]his case is … not a good one for a pilot program.” Hollingsworth v. Perry, 130 S.Ct. 705, 713-14 (2010). 3
                                                                                                                                                                                                 

all events, where, as here, the district court’s interpretation is contrary not only to the plain language of the local rule but also to the unequivocal judicial policies it was adopted to implement, see Stay Mot. 1-2, that interpretation surely cannot stand. See In re Sony BMG Music Entm’t, 564 F.3d 1, 7-8 (1st Cir. 2009).   3 The Media Coalition claims that the Supreme Court addressed only “the possible contemporaneous broadcast of trial testimony.” MC Op. 16. The Court, however, clearly held that Rule 77-3 prohibits “the streaming of transmissions, or other 3 
 

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3.

Plaintiffs’ principal response to Rule 77-3, longstanding judicial

policy, and the Supreme Court’s decision in this case seems to be that Proponents somehow waived their right to rely upon these authorities by not objecting to Judge Walker’s decision to place the trial recording in the record subject to seal. See Pls. Op. 1, 5, 7. But precisely (and only) because the recording was subject to seal, its placement in the record did not violate these authorities and Proponents had no reason to object. Indeed, in the very same order sealing the record and placing it in the record, Judge Walker made clear that “the potential for public broadcast” had been “eliminated.” Ex. 17 at 36. To the contrary, it is Plaintiffs and the Media Coalition (which was closely following the case, see, e.g., Exs. 39-40), who should have objected to Judge Walker’s action if they wished to publicly broadcast the recording. Had they objected then that the video recording could not lawfully be placed in the record under seal, we of course would have objected to the recording being placed in the record at all, and would have taken the steps necessary to prevent it. The propriety of Judge Walker’s disposition of the trial recording could have been raised at that time, either by way of extraordinary writ proceedings or in connection with
                                                                                                                                                                                                 

broadcasting or televising, beyond ‘the confines of the courthouse.’” Hollingsworth, 130 S.Ct. at 711. Surely the Media Coalition does not believe that the Supreme Court’s decision left Judge Walker free to record the trial proceedings and publicly broadcast them immediately after the trial’s conclusion. See Rule 773 (prohibiting “public broadcasting or televising, or recording for those purposes”).  4 
 

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Proponents’ appeal of Judge Walker’s ruling on the merits. Instead, Plaintiffs and the Media Coalition waited until months after that appeal had been briefed and argued—indeed until Proponents challenged Judge Walker’s improper disclosure of segments of the recording—to challenge Judge Walker’s disposition of the recording. Especially in light of their purported urgent desire to broadcast the trial proceedings, this long delay is simply inexplicable. In all events, the lack of contemporaneous objection to Judge Walker’s disposition of the trial recording by any party is of little consequence. For as the authority cited by the Media Coalition makes clear, if the trial recording was not properly placed in the record subject to seal, this Court can and should determine that the recording was “unnecessary to consideration of [Plaintiffs’ constitutional claims] on the merits, was surplusage, and … was improvidently filed” and thus direct that the recording “in its entirety should be removed from the record.” CBS, Inc. v. United States District Court, 765 F.2d 823, 825-26 (9th Cir. 1985) (Kennedy, J.); cf. Ex. 35 (directing that trial recordings made pursuant to the pilot program recently adopted by the Judicial Conference “are not the official record of the proceedings, and should not be used as exhibits or part of any court filing”). B. The common-law right of access does not apply.

The threshold question whether the common-law right of access applies at all to the trial recording is a question of law requiring de novo review. See Times 5 
 

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Mirror Co. v. United States, 873 F.2d 1210, 1212 (9th Cir. 1989). As we have demonstrated, see Stay Mot. 12-14, it does not. 1. It is well-settled that the common-law right of access must yield to

applicable enactments of positive law, see Stay Mot. 12-13; In re Roman Catholic Archbishop, No. 10-35206, 2011 WL 4375678, at *9 (9th Cir. Sept. 21, 2011), and Plaintiffs do not seriously contend otherwise. 4 Because, as we have demonstrated, Rule 77-3 prohibits public broadcast of the trial recording, the common-law right of access simply does not apply. 2. As we have also demonstrated, the trial recording is simply not the

sort of judicial record to which the common-law right of access applies. Neither Plaintiffs, San Francisco, nor the Media Coalition have identified any authority holding that the common-law right of access applies to a video recording of trial proceedings or any similar record that is nothing more than an unofficial depiction or account of the testimony and arguments made at trial. As the Eighth Circuit squarely held, even with respect to a recording submitted in lieu of live testimony
                                                            

The Media Coalition argues that local rules, unlike statutes or federal rules of procedure, cannot displace the common-law right of access. See MC Op. 14-15 & n.8. But local rules (like regulations, federal rules of procedure, and other sources of positive law that plainly preempt the common law) are authorized by statute, see 28 U.S.C. § 2071, and have “the force of law,” Hollingsworth, 130 S.Ct. at 711. In re Providence Journal Co., 293 F.3d 1 (1st Cir. 2002), cited by Media Coalition, held only that the common-law right of access trumped a district court’s “longstanding practice.” Id. at 6. But that practice was not codified in, and in fact appeared to conflict with, “the court’s local rules.” Id.   6 
 

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at trial, so long as the public “had a right to hear and observe the testimony at the time and in the manner it was delivered in the courtroom,” there is “no additional common law right to obtain … the electronic recording of that testimony.” United States v. McDougal, 103 F.3d 651, 657 (8th Cir. 1996). Plaintiffs’ attempts to distinguish McDougal are unavailing. The Eighth Circuit squarely held “as a matter of law that the videotape itself is not a judicial record to which the common law right of public access attaches.” Id. at 656. Thus, contrary to Plaintiffs’ suggestion, see Pls. Op. 12-13, the Eighth Circuit’s holding in no way turned on the district court’s reservation of this question. Nor was this central holding in any way dependent on the court’s alternative conclusion that, even if it “were to assume” the videotape were subject to the common-law right of access it “would hold that the district court did not abuse its discretion in denying access.” McDougal, 103 F.3d at 657. 5 Nor does this Court’s decision in Valley Broadcasting Company v. United States District Court, 798 F.2d 1289 (9th Cir. 1986), contradict McDougal, let alone suggest that the trial recording in this case is subject to the common-law right of access. Valley Broadcasting held that the common-law right of access
                                                            

The Media Coalition is likewise “incorrect to assume” that the Eighth Circuit’s holding “turn[ed] on whether or not the videotape itself was admitted into evidence.” 103 F.3d at 656. As the court explained, it “conclude[d] for reasons unrelated to the fact that the videotape was never admitted into evidence, that the videotape itself [was] not a judicial record for purposes of this analysis.” Id.  7 
 

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applied to recordings of “conversations occurring during the planning and commission of residential burglaries,” id. at 1291, which were offered as exhibits in evidence during a criminal trial, id. at 1290. As McDougal itself makes clear, such recordings of “primary conduct,” which themselves constitute evidence, are different in kind from mere “recording of witness testimony.” 103 F.3d at 657. More fundamentally, Plaintiffs are simply wrong that the common law right of access “applies to all judicial records.” Pls. Op. 12. Far from “recognizing a common law right of access to all judicial and quasi-judicial documents,” this Court has never “recognized a common law right of access to judicial records when there is neither a history of access nor an important public need justifying access.” Times Mirror, 873 F.2d at 1219. There is, of course, no history of access to video recordings of federal trial proceedings. To the contrary, the recording or broadcast of such proceedings has traditionally been barred pursuant to the federal judiciary’s considered judgment that the “negative effects of cameras in trial court proceedings far outweigh any potential benefit.” Ex. 3 at 1. Nor is there “an important public need justifying access,” where, as here, the trial itself was open to the public and the official transcript is available to all. C. Even if the common-law right of access applied, it would not warrant unsealing the trial recording.

Determining whether records must be released pursuant to the common-law right of access requires “a sensitive appreciation of the circumstances that led to 8 
 

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their production.” Nixon v. Warner Communications, Inc., 435 U.S. 589, 603 (1978). Thus, contrary to Plaintiffs’ contentions, the common-law right “does not permit copying upon demand. Otherwise, there would exist a danger that the court would become a partner in the use of the [disputed records] to gratify private spite or promote public scandal … with no corresponding assurance of public benefit.” Id. These considerations plainly counsel against release of the trial recording here. 1. The trial recording was created in the first place, over Proponents’

objection, on the express assurance that it would not be used “for purposes of public broadcasting or televising.” Ex. 7 at 754:21-23. But for this assurance, the recording would have violated both Rule 77-3 and the Supreme Court’s order enforcing it. Indeed, Judge Walker himself subsequently found that the “potential for public broadcast … had been eliminated.” Ex. 17 at 36. In keeping with this finding, Judge Walker specifically “directed,” on his own initiative, that the recording be subject to a highly restrictive protective order and filed under seal. See Ex. 11 at 2; Ex. 12 at 8; Ex. 17 at 4. But for these actions, the release of the trial recording to Plaintiffs and San Francisco and its placement in the record would have violated Rule 77-3, and Proponents would have taken immediate steps to prevent it. The circumstances surrounding the creation of the trial recording and its placement in the record cannot be reconciled with granting Plaintiffs’ motion


 

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seeking public access. 6 2. The serious risk of harm to Proponents and their witnesses posed by

public broadcast of the trial proceedings also weighs strongly against public access here. See Stay Mot. 15-18; infra Part II. Most notably, as the Supreme Court recognized, public broadcast of the trial proceedings would subject Proponents’ witnesses to a well-substantiated risk of harassment. See Hollingsworth, 130 S.Ct. at 713. There is thus a grave risk that the trial recording will be used “to gratify private spite” and “promote public scandal.” Nixon, 435 U.S. at 603. 3. Further, unsealing the trial recording will provide “no corresponding

assurance of public benefit.” Id. As all concede, the trial in this case was open to the public and widely reported, and the official transcript has been broadly disseminated and remains readily available to all. See Pls. Op. 2; SF Op. 4; MC
                                                            

In establishing common-law presumptions of confidentiality or access, this Court has shown sensitivity to the circumstances surrounding documents’ creation, production, and placement in the record. See, e.g., Phillips ex rel. Estates of Byrd v. General Motors Corp., 307 F.3d 1206, 1213 (9th Cir. 2002) (parties seeking access to documents filed under seal pursuant to a valid protective order in support of a nondispositive motion “must present sufficiently compelling reasons why the sealed discovery document should be released”; “[a]pplying a strong presumption of access to documents a court has already decided should be shielded from the public would surely undermine, and possibly eviscerate, the broad power of the district court to fashion protective orders”); United States v. Anzalone, 886 F.2d 229, 233 (9th Cir. 1989) (“When a court is called upon to release a presentence report, the court must balance the desire for confidentiality of the reports against the need for their disclosure, with a strong presumption in favor of confidentiality. The [party seeking access] must show a large compelling need for disclosure in order to meet the ends of justice.”); United States v. Schlette, 842 F.2d 1574, 1581 (9th Cir. 1988) (presentence reports are “prepared primarily for court use”).  10 
 

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Op. 10. Even assuming any applicable common-law right of access requires more—and it does not—the already extensive public access to the trial in this case surely renders “the public’s interest in gaining access to the videotape recording … only marginal”—at most. McDougal, 103 F.3d at 658; see also In re Providence Journal, 293 F.3d at 17-18. 7 D. The First Amendment right of access does not apply.

Plaintiffs’ alternative argument, that the First Amendment requires public access to the trial recording, is foreclosed by binding precedent. Indeed, even with respect to recordings offered as evidence of illegal conduct during criminal trials, both the Supreme Court and this Court have squarely held that the First Amendment is satisfied so long as the trial is open to the press and public and transcripts of the recordings as played at trial are publicly available. See Nixon, 435 U.S. at 608-09; Valley Broadcasting, 798 F.2d at 1292-93; see also, e.g., In re Providence Journal Co., 293 F.3d at 16. The same is true of recorded witness testimony offered at criminal trials, see McDougal, 103 F.3d at 659, and of live criminal proceedings generally, see United States v. Antar, 38 F.3d 1348, 1359-60
                                                            

The Media Coalition suggests that Proponents’ motion to vacate Judge Walker’s ruling somehow increases the need for public access to the trial recording. See MC Op. 11-12. But Proponents’ argument that Judge Walker was disqualified from hearing the case is based primarily on his undisclosed, long-term, same-sex relationship—which was never discussed during the trial—and is not in any way based on his courtroom demeanor or conduct. See Defendant-IntervenorsAppellants’ Opening Brief, Perry v. Brown, No. 11-16577 (9th Cir. Oct. 3, 2011).   11 
 

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(3d Cir. 1994) (First Amendment requires access to “the live proceedings” and “the transcripts which document those proceedings”). More generally, it would follow from Plaintiffs’ argument that the First Amendment requires the public broadcast of trial proceedings and that the longstanding prohibition of such broadcasts is unconstitutional. But the Supreme Court has already rejected this argument by necessary implication in this very case when raised by Plaintiffs in opposition to our successful application for a stay of Judge Walker’s initial broadcast order. Response of Kristin M. Perry et al. to Application for Immediate Stay at 18-19, Hollingsworth v. Perry, 130 S.Ct. 705 (2010) (No. 09A648). Other decisions by the Supreme Court and federal courts of appeals have uniformly and repeatedly rejected the same argument. 8 II. PROPONENTS FACE IRREPERABLE HARM ABSENT A STAY. 1.
8

Unsealing the trial recording will release it into the public domain and

                                                            

See, e.g., Estes v. Texas, 381 U.S. 532, 539 (1965) (rejecting claim “that the freedoms granted in the First Amendment extend a right to the news media to televise from the courtroom”); id. at 584-85 (Warren, C.J., concurring) (“Nor does the exclusion of television cameras from the courtroom in anyway impinge upon the freedoms of speech and press.”); id. at 588 (Harlan, J., concurring) (“No constitutional provision guarantees a right to televise trials.”); In re Sony BMG, 564 F.3d at 9 (“the venerable right of members of the public to attend federal court proceedings is far removed from an imagined entitlement to view court proceedings remotely on a computer screen”); Rice v. Kempker, 374 F.3d 675, 679 (8th Cir. 2004) (“courts have universally found that restrictions on videotaping and cameras do not implicate the First Amendment guarantee of public access”); Westmoreland v. Columbia Broad. Sys., 752 F.2d 16, 23 (2d Cir. 1984) (“There is a long leap, however, between a public right under the First Amendment to attend trials and a public right under the First Amendment to see a given trial televised.”).  12 
 

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thus moot our appeal, which is by definition irreparable harm. See Stay Mot. 16; see also John Doe Agency v. John Doe Corp., 488 U.S. 1306, 1309 (1989) (Marshall, J., in chambers). Plaintiffs concede that “mootness may constitute irreparable harm,” though not, they say, when “the mooted appeal has no realistic likelihood of succeeding on the merits.” Pls. Op. 18-19. Thus, Plaintiffs rely exclusively on their arguments against our likelihood of success on the merits, and effectively concede that we will suffer irreparable harm absent a stay. 9 2. Emphasizing that neither of Proponents’ trial witnesses has presented

a declaration “that they have faced any harassment as a result of their involvement in this trial,” Pl. Op. 9, Plaintiffs argue that we offer nothing but “unsubstantiated and speculative allegations” in support of our claim that unsealing, and therefore broadcasting, the trial recording would place our witnesses at grave risk of harassment and prejudice any future trial proceedings that may prove necessary in this case. Pl. Op. 18. 10 This is precisely the same argument made by Plaintiffs to
                                                            

The Media Coalition notes that a stay did not issue in Artukovic v. Rison, 784 F.2d 1354 (9th Cir. 1986), but, as the Coalition appears to recognize, MC Op. 18, that is because the movant failed to establish a likelihood of success on the merits, not because mootness did not constitute irreparable injury. Artukovic, 784 F.2d at 1356. Furthermore, because the irreparable injury in that case was certain absent a stay, Artukovic’s analysis did not turn in any way on whether a party must demonstrate a likelihood or a mere possibility of irreparable harm.   10 Plaintiffs also dismiss these concerns as “illogical” because “[t]he involvement of Proponents’ witnesses in this case has been known and widely reported for years, yet Proponents do not even suggest that they have faced harassment or other harm as a result.” Pl. Op. 10; see also MC Op. 16 (“[T]he Court’s concerns were about a 13 
 

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the Supreme Court in opposing our motion to stay Judge Walker’s original decision to broadcast the trial beyond the courthouse. See Response of Kristin M. Perry et al. to Application for Immediate Stay, supra, at 14. The Supreme Court, however, granted our motion, concluding that Proponents had “demonstrated the threat of harm they face if the trial is broadcast” and, more specifically, had “substantiated their concerns by citing incidents of past harassment” of Proposition 8 supporters. 130 S.Ct. at 713. 11 Neither Plaintiffs nor their allies offer any substantial reason that would justify revisiting the Supreme Court’s conclusion, so that is the end of the matter. 12 But given Plaintiffs’ insistence on reasserting this
                                                                                                                                                                                                 

trial that had not yet occurred and witnesses who had not yet testified. But this case already has been tried and those concerns have been proven unfounded. Neither of Proponents’ two expert witnesses has offered any testimony to suggest that the potential harm occurred”). It is evident that Plaintiffs and their allies have simply missed the point of our argument. Our position, in the words of the Supreme Court, is that our witnesses will be “subject to harassment as a result of broadcast of their testimony.” Hollingsworth, 130 S.Ct. at 713. The trial in this case has not been broadcast, and the purpose of the instant stay request—indeed, the purpose of the stay previously issued by the Supreme Court in this case, and of the court rules and judicial policies that it enforced—is to prevent the harm that will surely result if the trial is broadcast. Any harassment or other harm that has already been suffered by our witnesses or other trial participants is obviously not something that we, or this Court, can prevent.   11 The Supreme Court also rejected the argument, offered again by Plaintiffs and their allies, see Pls. Op. 8, 9; MC Op. 1, that concerns about witness harassment are “diminished by the fact that some of [Proponents’] witnesses are compensated expert witnesses.” 130 S.Ct. at 713. As the Court explained, “[t]here are qualitative differences between making public appearances regarding an issue and having one’s testimony broadcast throughout the country.” Id.   12 Contrary to Plaintiffs’ argument, see Pls. Op. 18, Judge Walker’s refusal to credit our explanation that several of our witness refused to testify with any sort of 14 
 

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argument, we briefly outline again the legal and evidentiary foundations of the harm threatened if the trial recording is broadcast. First, the very existence of Rule 77-3 refutes Plaintiffs’ argument, for the rule’s sole purpose is to prevent the harms that would be threatened in any case in which “public broadcasting or televising” of trial proceedings was permitted. And the local rule is, in turn, based upon the Judicial Conference’s long-standing “opposition to the use of cameras in the federal trial court proceedings,” a policy that is rooted in “decades of experience and study” demonstrating that the public broadcast of trial proceedings “can intimidate litigants [and] witnesses,” “create privacy concerns,” and “increase[] security and safety issues.” E.g., Ex. 3 at 1-3; see also Hollingsworth, 130 S.Ct. at 712-13. Significantly, the Judicial Conference’s policy is based on studies of garden-variety federal cases, not “high profile, divisive” cases such as this one involving “issues subject to intense debate
                                                                                                                                                                                                 

recording rested on his conclusion that “the potential for public broadcast in the case had been eliminated.” Ex. 17 at 36. Contrary to the Media Coalition’s argument, see MC Op. 2, this Court’s order transferring the motion to unseal to the district court said nothing about a need for additional fact finding. And contrary to San Francisco’s argument, see SF Op. 11-12, Proponents had no reason to develop further evidence at trial supporting their concerns of witness harassment because the Supreme Court had already determined that these concerns were well founded and stayed public broadcast of the case, and because the possibility that the trial recording would ever be publicly disclosed had been eliminated, we believed, by Judge Walker’s unequivocal assurances to that effect. Nevertheless, Proponents did introduce additional evidence of harassment of Proposition 8 supporters generally in connection with other issues during the trial. See, e.g., Exs. 41-47; DIX2544; DIX2616.   15 
 

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in our society,” where the harms threatened by public broadcasting would inevitably be greatly magnified. Id. at 714. Second, quite apart from the fact that the likelihood of harm from broadcasting federal trials must be presumed under Rule 77-3 as a matter of law, the evidentiary record in this case amply establishes the likelihood of irreparable harm to Proponents from witness harassment and intimidation. See Stay Mot. 17. As the Supreme Court noted, “incidents of past harassment” of Proposition 8 supporters range from “death threats” and “physical violence” to retaliatory boycotts, forced resignations, and other forms of economic harassment. Hollingsworth 130 S.Ct. at 707. Indeed, even Plaintiffs’ lead counsel has decried, on behalf of a different client, the “widespread economic reprisals” against supporters of Proposition 8. Ex. 36 at 28-29 (cited in Hollingsworth, 130 S.Ct. at 707). The record supporting the Supreme Court’s finding of irreparable harm has only strengthened since the Court stayed the broadcast of the trial. 13

                                                            

Indeed, a recent incident provides a chilling supplement to the record of economic reprisals directed against defenders of the traditional definition of marriage. In April a highly respected national law firm, King & Spalding, withdrew from its representation of the United States House of Representatives (“House”) in several cases involving the constitutionality of the Defense of Marriage Act (“DOMA”). It has been widely reported that when the firm’s representation of the House in defending DOMA was publicly announced, it “immediately came under assault from gay rights groups, including the Human Rights Campaign, which began contacting the firm’s clients and urging students at top law schools to push the firm to drop the case.” Sandhya Somashekhar, Firm 16 
 

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The risk of harm to Proponents’ witnesses is illuminated by recent testimony to Congress by Justices Scalia and Breyer addressing the question of televising proceedings in the Supreme Court. Justice Scalia emphasized that only a tiny fraction of the public would sit through the Court’s proceedings “gavel to gavel,” while the rest “would see nothing but a 30 second take-out from one of the proceedings, which I guarantee you would not be representative of what we do.” Considering the Role of Judges Under the Constitution of the United States: Hearing Before the Senate Judiciary Committee at 130:49, 131:32 (2011), at http://www.senate.gov/fplayers/jw57/urlMP4Player.cfm?fn=judiciary100511&st=1 170&dur=9752. Justice Breyer echoed this concern: “[Y]ou can make people look good or you can make them look bad, depending on what 30 seconds you take.” Id. at 135:05; see also Nixon, 435 U.S. at 601-02. These concerns apply with even greater force to video recordings of trial court proceedings in highly controversial federal cases, such as this one. Video recordings of such proceedings would present limitless opportunities for partisans to unfairly make one side look good and the other side look bad, and that alone is ample reason for the federal judiciary not to permit “the streaming of transmissions, or other broadcasting or televising, beyond ‘the confines of the courthouse.’” Hollingsworth, 130 S.Ct. at 711 (quoting Rule 77-3).
                                                                                                                                                                                                 

Defending Defense of Marriage Act Withdraws from Case, Washington Post, April 25, 2011.  17 
 

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III.

A STAY WILL NOT HARM PLAINTIFFS. Plaintiffs have still not identified any harm that they will suffer if the trial

recording remains sealed—let alone any harm that they will suffer during the pendency of the appeal. IV. THE PUBLIC INTEREST WEIGHS IN FAVOR OF A STAY. As we have demonstrated, the public’s interest in the integrity and credibility of the federal judiciary will suffer grave and lasting harm if the order below is allowed to stand. See Stay Mot. 19-20. Given Rule 77-3, longstanding judicial policy, and the Supreme Court’s decision requiring Judge Walker to comply with these authorities, the trial recording in this case could have never been created, provided to Plaintiffs and San Francisco, or placed in the record in the first place but for Judge Walker’s solemn assurance that the recording would not be publicly broadcast outside the courthouse and his determination that the recording should be sealed and subject to a highly restrictive protective order. Plaintiffs’ sole response is that Proponents should not have relied on these judicial promises and determinations. See, e.g., Pls. Op. 11. But they fail to identify any statement made or action taken by Judge Walker during the trial proceedings that called into question his assurance that the recording would not be publicly broadcast outside the courthouse. True, Judge Walker allowed brief snippets of the recording to be played during closing arguments. But he also 18 
 

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required Plaintiffs and San Francisco “to maintain as strictly confidential” their copies of the trial recording pursuant to a highly restrictive protective order, Ex. 11 at 2, and he denied the Media Coalition’s request to publicly broadcast the closing arguments, Ex. 16. Accordingly, as Plaintiffs themselves represented to the Supreme Court, “the trial [was] completed without any of the proceedings having been transmitted outside the confines of the courthouse in which they took place.” Brief in Opposition for Kristin M. Perry et al. at 4, Hollingsworth v. United States Dist. Ct. for the N.D. Cal., 131 S.Ct. 372 (2010) (No. 09-1238). Nor did Judge Walker’s statement that he wished to use the recording in chambers because he believed it “would be quite helpful to [him] in preparing the findings of fact,” Ex. 7 at 754:15-19, suggest that it was any more likely that the recording would become part of the publicly accessible record in this case than other documents used in this way, such as the Judge’s hand written notes or a bench memo from a law clerk. 14 Nor does the public’s purported interest in viewing the trial recording weigh against the stay. The public has already had extensive access to the trial proceedings through the public and widely reported trial itself, as well as the readily available official transcript. Further, as demonstrated above, Plaintiffs’ assertion that First Amendment rights are at issue here is not even colorable. See
                                                            

This case is not like Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122 (9th Cir. 2003). In that case, the protective order on which the insurance company unreasonably claimed to rely was contrary to law; here Judge Walker’s decision to seal the recording and place it under a protective order was required by law.  19 
 

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supra Part I.D. Accordingly, the authorities cited by Plaintiffs’ in support of any public interest in immediate, pre-appeal access to the trial recording are simply inapposite. In all events, the inexplicable, several month delay by Plaintiffs and the Media Coalition in even moving to unseal the recording belies any claim that they or the purported public interest in viewing the recording that they claim to represent cannot await the orderly disposition of this appeal. CONCLUSION This Court should stay the district court’s order pending appeal. Should the Court disagree, Proponents request a seven-day stay to permit us to seek a stay from the Supreme Court.

Dated: October 13, 2011 Andrew P. Pugno LAW OFFICES OF ANDREW P. PUGNO 101 Parkshore Drive, Suite 100 Folsom, California 95630 (916) 608-3065; (916) 608-3066 Fax Brian W. Raum James A. Campbell ALLIANCE DEFENSE FUND 15100 North 90th Street Scottsdale, Arizona 85260 (480) 444-0020; (480) 444-0028 Fax

Respectfully submitted, s/ Charles J. Cooper Charles J. Cooper David H. Thompson Howard C. Nielson, Jr. Peter A. Patterson COOPER AND KIRK, PLLC 1523 New Hampshire Ave., N.W. Washington, D.C. 20036 (202) 220-9600; (202) 220-9601 Fax

Attorneys for Defendant-Intervenors-Appellants Hollingsworth, Knight, Gutierrez, Jansson, and ProtectMarriage.com

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CERTIFICATE OF COMPLIANCE PURSUANT TO 9TH CIRCUIT RULE 32-2 FOR CASE NUMBER 11-17255 This brief is accompanied by a motion for leave to file an oversize brief pursuant to Circuit Rule 32-2 and is 5,588 words, excluding the portions exempted by Fed. R. App. P. 32(a)(7)(B)(iii), if applicable.

Dated: October 13, 2011 s/ Charles J. Cooper Charles J. Cooper Attorney for Appellants

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CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on October 13, 2011. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

s/ Charles J. Cooper Charles J. Cooper

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EXHIBIT 37

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NEWS

RELEASE

December 17, 2009

Contact: David J. Madden, (415) 355-8800 dmadden@ce9.uscourts.gov

Ninth Circuit Judicial Council Approves Experimental Use of Cameras in District Courts
SAN FRANCISCO – The Judicial Council of the Ninth Circuit, governing body for federal courts in the western states, has approved, on an experimental basis, the limited use of cameras in federal district courts within the circuit. The action was announced today by Chief Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit. The Judicial Council voted unanimously to allow the 15 district courts within the Ninth Circuit to experiment with the dissemination of video recordings in civil non-jury matters only. The action amends a 1996 Ninth Circuit policy that had prohibited the taking of photographs, as well as radio and television coverage, of court proceedings in the district courts. It also responds to a resolution supporting the use of cameras, which was passed by judges and lawyers attending the 2007 Ninth Circuit Judicial Conference. "We hope that being able to see and hear what transpires in the courtroom will lead to a better public understanding of our judicial processes and enhanced confidence in the rule of law. The experiment is designed to help us find the right balance between the public's right to access to the courts and the parties' right to a fair and dignified proceeding,” Judge Kozinski said. Cases to be considered for the pilot program will be selected by the chief judge of the district court in consultation with the chief circuit judge. The participating district courts will be asked to evaluate their experiences and report to the Council. The Ninth Circuit takes in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, the U.S. Territory of Guam and the Commonwealth of the Northern Mariana Islands. There are four district courts in California and two in Washington. - more -

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The Ninth Circuit Court of Appeals has permitted television and radio broadcasting of oral arguments with approval of the panel hearing the case. Since 1991, the court has permitted video and audio recordings of oral arguments in approximately 200 cases. All of its oral arguments are available on its website http://www.ca9.uscourts.gov/media/

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EXHIBIT 41

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No. 2328 October 22, 2009

The Price of Prop 8
Thomas M. Messner
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

Support for Proposition 8, the democratically established marriage amendment in California, has come with a heavy price for many individuals and institutions that think that marriage should remain the union of husband and wife. Publicly available sources, including evidence submitted in a federal lawsuit in California, show that expressions of support for Prop 8 have generated a range of hostilities and harms that include harassment, intimidation, vandalism, racial scapegoating, blacklisting, loss of employment, economic hardships, angry protests, violence, at least one death threat, and gross expressions of anti-religious bigotry. Because the issue of marriage is still very much alive in California and throughout the nation, the naked animus manifested against people and groups that supported Prop 8 raises serious questions that should concern anyone interested in promoting civil society, democratic processes, and reasoned discourse on important matters of public policy, such as marriage. Although many same-sex marriage activists have condemned certain types of hostilities described in this paper and certain hostile acts have been committed at random or were illegal, the fact remains that many Prop 8 supporters have paid a considerable price for defending marriage as the union of husband and wife. Indeed, no matter who is to blame for the hostility surrounding Prop 8, one lesson of Prop 8 cannot be denied: Individuals and

institutions that publicly defend marriage as the Case number: 09-2292 union of husband and wife risk intimidation, harassment, and reprisal—at EXHIBIT NO. DIX458 PLTF/DEFT least some of it targeted and coordinated. Furthermore, although some ________________ Date admitted: same-sex marriage activists have expressed disagreement with certain types of conduct described in this paper, few activBy: ___________________________ ists would disavow the ideology underlying much of the outrage surrounding Prop 8 and other efforts to defend marriage. Arguments for same-sex marriage, although often couched in terms of tolerance and inclusion, are based fundamentally on the idea that limiting marriage to the union of husband and wife is a form of bigotry, irrational prejudice, and even hatred against homosexual persons who want the state to license their relationships. As this ideology seeps into the culture, belief in marriage as the union of husband and wife will likely come to be viewed as an unacceptable form of discrimination that should be purged from society through legal, cultural, and economic pressure. When people stand firmly by their beliefs about marriage as the union of husband and wife despite

This paper, in its entirety, can be found at: www.heritage.org/Research/Family/bg2328.cfm Produced by the Richard and Helen DeVos Center for Religion and Civil Society Published by The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002–4999 (202) 546-4400 • heritage.org Nothing written here is to be construed as necessarily reflecting the views of The Heritage Foundation or as an attempt to aid or hinder the passage of any bill before Congress.

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No. 2328 October 22, 2009

The Price of Prop 8
Thomas M. Messner

Support for Proposition 8, the democratically established marriage amendment in California, has come with a heavy price for many individuals and institutions that think that marriage should remain the union of husband and wife. Publicly available sources, including evidence submitted in a federal lawsuit in California, show that expressions of support for Prop 8 have generated a range of hostilities and harms that include harassment, intimidation, vandalism, racial scapegoating, blacklisting, loss of employment, economic hardships, angry protests, violence, at least one death threat, and gross expressions of anti-religious bigotry. Because the issue of marriage is still very much alive in California and throughout the nation, the naked animus manifested against people and groups that supported Prop 8 raises serious questions that should concern anyone interested in promoting civil society, democratic processes, and reasoned discourse on important matters of public policy, such as marriage. Although many same-sex marriage activists have condemned certain types of hostilities described in this paper and certain hostile acts have been committed at random or were illegal, the fact remains that many Prop 8 supporters have paid a considerable price for defending marriage as the union of husband and wife. Indeed, no matter who is to blame for the hostility surrounding Prop 8, one lesson of Prop 8 cannot be denied: Individuals and

institutions that publicly defend marriage as the union of husband and wife risk intimidation, harassment, and reprisal—at least some of it targeted and coordinated. Furthermore, although some same-sex marriage activists have expressed disagreement with certain types of conduct described in this paper, few activists would disavow the ideology underlying much of the outrage surrounding Prop 8 and other efforts to defend marriage. Arguments for same-sex marriage, although often couched in terms of tolerance and inclusion, are based fundamentally on the idea that limiting marriage to the union of husband and wife is a form of bigotry, irrational prejudice, and even hatred against homosexual persons who want the state to license their relationships. As this ideology seeps into the culture, belief in marriage as the union of husband and wife will likely come to be viewed as an unacceptable form of discrimination that should be purged from society through legal, cultural, and economic pressure. When people stand firmly by their beliefs about marriage as the union of husband and wife despite

This paper, in its entirety, can be found at: www.heritage.org/Research/Family/bg2328.cfm Produced by the Richard and Helen DeVos Center for Religion and Civil Society Published by The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002–4999 (202) 546-4400 • heritage.org Nothing written here is to be construed as necessarily reflecting the views of The Heritage Foundation or as an attempt to aid or hinder the passage of any bill before Congress.

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facing social stigmatization, economic hardship, and other reprisals, they provide an important example of civic courage and inspire particular virtues that are essential to the proper functioning of any free and open society. The freedom of parties on both sides of the marriage debate to voice their

views and to promote them in public policy should be respected. —Thomas M. Messner is a Visiting Fellow in the Richard and Helen DeVos Center for Religion and Civil Society at The Heritage Foundation.

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No. 2328 October 22, 2009

The Price of Prop 8
Thomas M. Messner

Abstract: Supporters of Proposition 8 in California have been subjected to harassment, intimidation, vandalism, racial scapegoating, blacklisting, loss of employment, economic hardships, angry protests, violence, at least one death threat, and gross expressions of anti-religious bigotry. Arguments for same-sex marriage are based fundamentally on the idea that limiting marriage to the union of husband and wife is a form of bigotry, irrational prejudice, and even hatred against homosexual persons. As this ideology seeps into the culture more generally, individuals and institutions that support marriage as the union of husband and wife risk paying a price for that belief in many legal, social, economic, and cultural contexts.

Talking Points
• People who supported Prop 8 have been subjected to harassment, intimidation, vandalism, racial scapegoating, blacklisting, loss of employment, economic hardships, angry protests, violence, at least one death threat, and gross expressions of anti-religious bigotry.

• Many same-sex marriage activists have condemned certain types of hostilities, and certain hostile acts have been committed at random or were illegal.

• One lesson of the hostility surrounding sup-

Support for Proposition 8, the democratically established marriage amendment in California, has come with a heavy price for many individuals and institutions that think that marriage should remain the union of husband and wife. Publicly available sources, including evidence submitted in a federal lawsuit in California,1 show that expressions of support for Prop 8 have generated a range of hostilities and harms that includes harassment, intimidation, vandalism, racial scapegoating, blacklisting, loss of employment, economic hardships, angry protests, violence, at least one death threat, and gross expressions of anti-religious bigotry. Because the issue of marriage is still very much alive in California and throughout the nation,2 the naked animus manifested against people and groups that supported Prop 8

port for Prop 8 is that individuals and institutions that publicly defend marriage as the union of husband and wife risk intimidation, harassment, and reprisal—at least some of it targeted and coordinated.

• People who stand firmly by their beliefs about
marriage despite the consequences provide an important example of civic courage.

• The freedom of parties on both sides of the
marriage debate to voice their views and to promote them in public policy should be respected.
This paper, in its entirety, can be found at: www.heritage.org/Research/Family/bg2328.cfm Produced by the Richard and Helen DeVos Center for Religion and Civil Society Published by The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002–4999 (202) 546-4400 • heritage.org Nothing written here is to be construed as necessarily reflecting the views of The Heritage Foundation or as an attempt to aid or hinder the passage of any bill before Congress.

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raises serious questions that should concern anyone interested in promoting civil society, democratic processes, and reasoned discourse on important matters of public policy, such as marriage.12

Donor Disclosure Laws in the Internet Age
Much of the hostility directed against Prop 8 supporters has been facilitated by a California law that requires the disclosure of certain personal information of individuals who donate $100 or more in support of or opposition to a ballot measure. Information subject to disclosure includes the donor’s full name, occupation, and employer.3 Once this information is disclosed to the State of California, the state then publishes this information on its Web site, enabling anyone with Internet access to view detailed donor reports online in html format or in a downloadable Microsoft Excel spreadsheet.4 With this information at hand, several Web sites have been designed that facilitate the easy identi-

fication and targeting of Prop 8 supporters. For example, one of these Web sites is a GoogleMaps “mashup” that combines donor information with an interactive map, allowing activists to ascertain the identity, employer, amount of donation, and approximate location of certain Prop 8 supporters in particular geographic areas.5 A Web site called _________________________________________
Expressions of support for Prop 8 have resulted in harassment, intimidation, blacklisting, and other reprisals and harm.

____________________________________________

“Californians Against Hate” highlights particular Prop 8 supporters in its “Dishonor Roll” and provides addresses and telephone numbers for some of them.6 At least one Web site allows users to search for Prop 8 supporters who work in their businesses.7 Because of the California donor disclosure law, some Prop 8 supporters have become targets without ever placing a sign in their yard, putting a

1. See ProtectMarriage.com v. Bowen, No. 2:09-cv-00058 (E.D. Cal.). The claims asserted in this case include a challenge under the First Amendment of the U.S. Constitution to the application of California’s disclosure laws in this case. See Complaint at 15–19 (Count 1), ProtectMarriage.com v. Bowen, No. 2:09-cv-00058 (E.D. Cal. filed January 7, 2009). 2. The California Supreme Court recently upheld Prop 8 against legal challenges brought by same-sex marriage activists, see Strauss v. Horton, 207 P.3d 48, 62–64 (Cal. 2009), but parties favoring same-sex marriage have filed a federal court case challenging Prop 8 under the U.S. Constitution, see Complaint, Perry v. Schwarzenegger, No. 3:09-cv-02292 (N.D. Cal. filed May 22, 2009), and at least one petition for an initiative concerning marriage in California was in circulation as of October 15, 2009, see 2009 Ballot Measure Update, http://www.sos.ca.gov/elections/elections_j.htm#circ (last visited Oct. 15, 2009). This initiative would reverse the result of Prop 8 by removing Section 7.5 of Article I from the California Constitution. See Letter from Yes! on Equality, to the Initiative Coordinator in the Office of the California Attorney General, April 30, 2009, available at http://ag.ca.gov/cms_attachments/initiatives/pdfs/i808_initiative_09-0011.pdf. Furthermore, same-sex marriage also is an issue in several other states including Maine, New York, Rhode Island, and New Jersey. 3. See Complaint at ¶¶ 51 n.4, 54, ProtectMarriage.com v. Bowen. See also id. at ¶¶ 43–58 (providing overview of California campaign finance system). 4. See Plaintiffs’ Memorandum in Support of Motion for Summary Judgment at 8, ProtectMarriage.com v. Bowen, No. 2:09cv-00058 (E.D. Cal. filed June 3, 2009). The state’s Web site is located at California Secretary of State CalAccess Campaign Finance, http://cal-access.sos.ca.gov/Campaign/Measures/Detail.aspx?id=1302602&session=2007 (last visited Aug. 8, 2009). 5. See “Prop 8 Maps, http://www.eightmaps.com (last visited Oct. 15, 2009). See also Plaintiffs’ Memorandum in Support of Motion for Summary Judgment at 26–27, ProtectMarriage.com v. Bowen. 6. The “Dishonor Roll” and contact information can be viewed at Californians Against Hate Dishonor Roll, http://www.californiansagainsthate.com/dishonorRoll.html (last visited Oct. 15, 2009). 7. The San Francisco Chronicle posted a search engine on its Web site that allows users to search for donors by their employer. See Proposition 8 Contributors, http://www.sfgate.com/webdb/prop8 (last visited Oct. 6, 2009). The Los Angeles Times and the Sacramento Bee posted similar search engines on their Web sites, though they do not allow users to search for donors by employer. See The Gay-Marriage Battle: Follow the Donors, http://www.latimes.com/news/local/la-metro-prop8%2C0%2C2463893.htmlstory?appSession=49147401149443 (last visited Oct. 15, 2009), and Search for Prop. 8 Donors, http://www.sacbee.com/1098/story/1392716.html (last visited Oct. 15, 2009).

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sticker on their car, or appearing at a public rally. These more public forms of support for Prop 8 certainly generated plenty of animosity, as documented below. However, many individuals became targets for harassment, intimidation, and reprisals simply for donating $100 or more in support of Prop 8.

pushed over the man’s motorbike and scraped the bumper stickers off the back glass windows of his cars.13 Several other individuals reported that Yes on Prop 8 bumper stickers were scraped or ripped off their vehicles or defaced.14 _________________________________________
Because of the California donor disclosure law, some Prop 8 supporters have become targets without ever placing a sign in their yard, putting a sticker on their car, or appearing at a public rally.

Vandalism and Sign Theft
Many reports of hostility toward Prop 8 supporters involve acts of vandalism. An elderly couple who put a Yes on 8 sign in their yard had a block thrown through their window.8 A senior citizen who placed a pro-Prop-8 bumper sticker on her car had her car’s rear window smashed in.9 Some individuals with pro-Prop-8 bumper stickers had their cars keyed.10 One woman with a “One Man, One Woman” bumper sticker had her car keyed and tires deflated while she was in a grocery store.11 One man who placed signs in his yard and stickers on his cars and motorbike reported that someone egged and floured his home three times and egged, floured, and honeyed his car twice.12 Someone also

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Some individuals found their property vandalized with spray paint. Vandals spray-painted vehicles, garages, fences, and Yes on 8 signs in Yucaipa, California.15 An Alta Loma resident who placed a Yes on 8 sign in her yard found the words “love for all” and “no on 8” spray-painted on her fifth-wheel trailer.16 In San Jose, vandals spray-painted the garage doors of two homeowners who displayed signs supporting Prop 8.17 Vandals also spray-

8. See Prop. 8 Passage Spawns Protests, Violence and Vandalism, CHRISTIAN EXAMINER, Dec. 2008, available at http://www.christianexaminer.com/Articles/Articles%20Dec08/Art_Dec08_09.html. 9. See Declaration of John Doe 11 in Support of Plaintiffs’ Motion for Summary Judgment, ProtectMarriage.com v. Bowen, No. 2:09-cv-00058 (E.D. Cal. filed June 3, 2009). 10. See, e.g., Declaration of Sarah E. Troupis in Support of Plaintiffs’ Motion for Summary Judgment, ProtectMarriage.com v. Bowen, No. 2:09-cv-00058 (E.D. Cal. filed June 3, 2009) [hereinafter “Troupis Declaration”] (Exhibit Z) (citing Aaron Bruner, Prop 8 Supporters Face Sign Theft, Vandalism, CALIFORNIA AGGIE, Oct. 29, 2008, available at http://theaggie.org/ article/1747). 11. See Declaration of John Doe 12 in Support of Plaintiffs’ Motion for Summary Judgment, ProtectMarriage.com v. Bowen, No. 2:09-cv-00058 (E.D. Cal. filed June 3, 2009). Another Prop 8 supporter who put stickers on her car also reported that her car was keyed, leaving a gash about 27 inches long. See Declaration of John Doe 13 in Support of Plaintiffs’ Motion for Summary Judgment, ProtectMarriage.com v. Bowen, No. 2:09-cv-00058 (E.D. Cal. filed June 3, 2009). 12. See Declaration of John Doe 14 in Support of Plaintiffs’ Motion for Summary Judgment, ProtectMarriage.com v. Bowen, No. 2:09-cv-00058 (E.D. Cal. filed June 3, 2009). 13. See id. 14. See Declaration of John Doe 24 in Support of Plaintiffs’ Motion for Summary Judgment, ProtectMarriage.com v. Bowen, No. 2:09-cv-00058 (E.D. Cal. filed June 3, 2009) (bumper sticker ripped off); Declaration of John Doe 25 in Support of Plaintiffs’ Motion for Summary Judgment, ProtectMarriage.com v. Bowen, No. 2:09-cv-00058 (E.D. Cal. filed June 3, 2009) (bumper sticker ripped off); Declaration of John Doe 31 in Support of Plaintiffs’ Motion for Summary Judgment, ProtectMarriage.com v. Bowen, No. 2:09-cv-00058 (E.D. Cal. filed June 3, 2009) (bumper sticker was defaced by changing “Yes on 8” to “No on 8”). 15. See Troupis Declaration (Exhibit U) (citing Bob Banfield, Neighborhood Vandalized Over Prop 8, KABC-TV (Oct. 31, 2008), http://abclocal.go.com/kabc/story?section=news/local/inland_empire&id=6482810&pt=print). The report is unclear about whether the victims of vandalism included even some property owners who had not expressed support for Prop 8. 16. Troupis Declaration (Exhibit V) (citing Rob McMillan, Anti-Prop 8 Vandals Hit Alta Loma Home, KABC-TV (Oct. 28, 2008), http://abclocal.go.com/kabc/story?section=news/local/inland_empire&id=6470557&pt=print).

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painted anti-Prop-8 messages on commercial and residential buildings in Fullerton.18 Other forms of vandalism were more bizarre. One woman who placed a pro-Prop-8 sign on her balcony reported finding that her staircase leading downstairs had been covered in urine.19 She also found a puddle of urine at the bottom of the stairs.20 _________________________________________
Swastikas and other graffiti were scrawled on the walls of the Most Holy Redeemer Catholic Church in San Francisco.

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Vandals also hit houses of worship. Perpetrators used orange paint to vandalize a statue of the Virgin Mary outside one church.21 Offices at the Cornerstone Church in Fresno were egged.22 Swastikas and other graffiti were scrawled on the walls of the

Most Holy Redeemer Catholic Church in San Francisco, a parish known widely as being “gayfriendly.”23 In San Luis Obispo, the Assembly of God Church was egged and toilet-papered, and a Mormon church had an adhesive poured onto a doormat and keypad.24 Signs supporting Prop 8 were twisted into a swastika at Our Lady of Perpetual Help Catholic Church in Riverside.25 Someone used a heavy object wrapped with a Yes on 8 sign to smash the window of a pastor’s office at Messiah Lutheran Church in Downey.26 In addition, reports of Yes on Prop 8 signs being defaced, damaged, dislocated, or stolen are almost too numerous to track reliably.27 According to one source, the Yes on 8 campaign estimated that approximately one-third of an estimated 25,000 signs distributed in California were stolen or vandalized before the campaign ended.28 Prop 8 support-

17. See Troupis Declaration (Exhibit W) (citing KGO-TV, Vandals Strike Prop 8 Homes in SJ (Oct. 27, 2008), http://abclocal.go.com/kgo/story?section=news/local/south_bay&id=6472609&pt =print); id. (Exhibit X) (KCAL-9, Vandals Target Prop 8 Supporters in NorCal (Oct. 28, 2008), http://cbs2.com/local/ Proposition.8.Vandalism.2.850469.html). 18. See Troupis Declaration (Exhibit T) (citing Barbara Giasone, Vandals Spray Paint Signs in Downtown Fullerton, ORANGE COUNTY REG., Oct. 20, 2008, available at http://www.ocregister.com/articles/macdonald-one-police-2200383-paintvandals). 19. See Declaration of John Doe 12. 20. See id. 21. See Declaration of John Doe 23 in Support of Plaintiffs’ Motion for Summary Judgment at 2, ProtectMarriage.com v. Bowen, No. 2:09-cv-00058 (E.D. Cal. filed June 3, 2009). 22. See Troupis Declaration (Exhibit R) (citing KFSN-TV, Vandals Egg Downtown Fresno Church (Oct. 28, 2008), http://abclocal.go.com/kfsn/story?section=news/local&id=6473251&pt=print). 23. Meredith May, Vandals Desecrate Pro-Gay Catholic Church, S.F CHRON., Jan. 6, 2009, available at http://www.sfgate.com/ . cgi-bin/article.cgi?f=/c/a/2009/01/06/BA5B1540PH.DTL. 24. See Troupis Declaration (Exhibit O) (citing Adrienne S. Gaines, Radical Gay Activists Seek to Intimidate Christians, CHARISMA MAG., Nov. 19, 2008, available at http://www.charismamag.com/index.php/news/19444). 25. See Troupis Declaration (Exhibit S) (citing KCAL-9, Vandals Arrange Prop. 8 Signs into Swastika, Nov. 7, 2008, at http://cbs2.com/local/Proposition.8.Vandalism.2.859176.html); id. (Exhibit Q) (citing Chelsea Phua, Mormon Church in Orangevale Vandalized in Wake of Prop. 8 Vote, SACRAMENTO BEE, Nov. 9, 2008). 26. See Troupis Declaration (Exhibit O), supra note 24. Other incidents of church vandalism have also been reported. According to one news source, for example, seven Mormon houses of worship in Utah and 10 Mormon church buildings in the Sacramento region were vandalized in the first week after Prop 8 passed. See Jennifer Garza, Feds Investigate Vandalism at Mormon Sites, SACRAMENTO BEE, Nov. 14, 2008, available at http://www.sacbee.com/crime/story/ 1399018.html. 27. See, for example, the summaries of declarations submitted by John Does 13, 14, 16, 18, 20, 22, 24, 25, 26, 31, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 55, 57, and 58 in support of the plaintiffs’ motion for summary judgment in ProtectMarriage.com v. Bowen. The summaries are provided in Plaintiffs’ Statement of Undisputed Facts in Support of Motion for Summary Judgment, ProtectMarriage.com v. Bowen, No. 2:09-cv-00058 (E.D. Cal. filed June 3, 2009) (Appendix B).

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ers who replaced stolen signs often had their signs stolen again.29 Sign thefts also often involved the added element of trespass or fear of trespass.30 In some cases, perpetrators crossed fences and walls to steal signs or removed signs that had been securely fastened in place.31 One individual reported coming home late and hearing male voices outside her home.32 Another individual reported that a suspected perpetrator quickly drove away when spotted through the front window of his house.33

Harassment, Hostility, and Slurs
Several individuals who supported Proposition 8 reported receiving harassing telephone calls, e-mails,

and mailings. Prop 8 supporters have reported receiving phone calls and voice mails calling them “bigot”34 and using vulgar language.35 Sometimes harassers called at work.36 A public relations firm hired by the Yes on 8 Campaign received so many harassing phone calls from one person that the sheriff’s office became involved.37 Other Prop 8 supporters received e-mails, letters, and postcards using vulgar language38 and offensive labels like “gay hater.”39 Through the contact form on his business’s Web site, one individual received an e-mail stating “burn in hell.”40 One e-mail threatened to contact the parents of students at a school where a particular Prop 8 supporter worked.41

28. See Troupis Declaration (Exhibit AA) (citing Salvador Hernandez, Prop. 8 Sign-Stealing Ignites Free Speech Debate, ORANGE COUNTY REG., Oct. 30, 2008). 29. See, e.g., Declaration of John Doe 45 in Support of Plaintiffs’ Motion for Summary Judgment, ProtectMarriage.com v. Bowen, No. 2:09-cv-00058 (E.D. Cal. filed June 3, 2009) (stating that “the signs I had replaced the original in my yard with were also stolen” and “signs I had placed around the neighborhood were also stolen repeatedly”); Declaration of John Doe 47 in Support of Plaintiffs’ Motion for Summary Judgment, ProtectMarriage.com v. Bowen, No. 2:09-cv-00058 (E.D. Cal. filed June 3, 2009) (stating he began “bringing in the signs at night” after his second sign supporting Prop 8 was stolen). 30. See, e.g., Declaration of John Doe 41 in Support of Plaintiffs’ Motion for Summary Judgment, ProtectMarriage.com v. Bowen, No. 2:09-cv-00058 (E.D. Cal. filed June 3, 2009) (“Because of the location of the signs, anyone who stole the signs would have had to trespass on my property.”). 31. See Declaration of John Doe 13 (stating that, after her sign was vandalized, she repaired it and placed it inside a low wall so vandals would have to go out of their way to reach it); Declaration of John Doe 26 in Support of Plaintiffs’ Motion for Summary Judgment, ProtectMarriage.com v. Bowen, No. 2:09-cv-00058 (E.D. Cal. filed June 3, 2009) (stating that sign thief “had to climb a brick retaining wall that is approximately 5.5 to 6 feet tall”); Declaration of John Doe 33 in Support of Plaintiffs’ Motion for Summary Judgment, ProtectMarriage.com v. Bowen, No. 2:09-cv-00058 (E.D. Cal. filed June 3, 2009) (“Whoever removed the signs had to climb up the slope of my property to remove the signs.”); id. (stating he “purposely secured several of the signs to branches of trees in my yard” but “[s]omeone also ripped these signs down”); Declaration of John Doe 46 in Support of Plaintiffs’ Motion for Summary Judgment, ProtectMarriage.com v. Bowen, No. 2:09-cv-00058 (E.D. Cal. filed June 3, 2009) (stating that large, handmade “sign was stolen even though I had it wired to two trees on my property and had placed a light on it”). 32. See Declaration of John Doe 45 (“On the evening that this first sign was destroyed, I went into the garage to put my recyclables in the recycle can and heard male voices in my front yard.”). 33. See Declaration of John Doe 47. 34. Declaration of John Doe 56 in Support of Plaintiffs’ Motion for Summary Judgment, ProtectMarriage.com v. Bowen, No. 2:09-cv-00058 (E.D. Cal. filed June 3, 2009). 35. See Declaration of John Doe 28 in Support of Plaintiffs’ Motion for Summary Judgment, ProtectMarriage.com v. Bowen, No. 2:09-cv-00058 (E.D. Cal. filed June 3, 2009). 36. See id. (stating that “I received a voice mail from an unknown male at my workplace”); Declaration of John Doe 53 in Support of Plaintiffs’ Motion for Summary Judgment, ProtectMarriage.com v. Bowen, No. 2:09-cv-00058 (E.D. Cal. filed June 3, 2009) (“Once my personal information was released to the public in February, I began to receive harassing phone calls at work.”). See also Declaration of John Doe 56 (stating that “a man called my office and left me a voice mail message” after John Doe 56 donated to Prop 8 in the name of John Doe 56’s business); Declaration of John Doe 1 in Support of Plaintiffs’ Motion for Summary Judgment, ProtectMarriage.com v. Bowen, No. 2:09-cv-00058 (E.D. Cal. filed January 15, 2009) (“My stores received numerous harassing phone calls that referenced my support of Proposition 8.”). 37. See Declaration of John Doe 52 in Support of Plaintiffs’ Motion for Summary Judgment, ProtectMarriage.com v. Bowen, No. 2:09-cv-00058 (E.D. Cal. filed June 3, 2009).

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Harassment sometimes took other forms. For example, two women painted an arrow and the words “Bigots live here” on the window of an SUV and parked the vehicle in front of a household that had supported Prop 8.42 In another case, an individual who supported Prop 8 found himself the subject of a flyer distributed in his town. The flyer _________________________________________
Several individuals who supported Prop 8 reported receiving harassing telephone calls, e-mails, and mailings.

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included a photo of him, labeled him a “Bigot,” and stated his name, the amount of his donation to Prop 8, and his association with a particular Catholic Church.43 At the University of California, Davis, a Yes on 8 table on the quad was reportedly attacked by a group of students throwing water balloons and shouting “you teach hate.”44 A professor at Los Angeles City College allegedly told students in his class, “If you voted yes on Proposition 8, you are a

fascist [expletive deleted].”45 One Prop 8 supporter received a book, sent anonymously through Amazon.com, that contained “the greatest homosexual love stories of all time.”46 Prop 8 supporters holding signs in public places also reported incidents of notable hostility. One woman who stood near a street with a Yes on 8 sign reported that a man stopped his car and shouted at her, “You despicable filthy bag of [expletive deleted].”47 Other drivers circled the block and yelled things like “You [expletive deleted]” each time they drove by her.48 Once a car with several men stopped, and a man in the back seat opened the door and threw something at her.49 Another driver stopped her car and yelled, “Get the [expletive deleted] out of here. Who do you think you are, bringing that hate into my neighborhood?”50 One Prop 8 supporter who witnessed repeated vulgarities at sign-waving events said she felt nervous and scared and chose not to take her children with her.51 Another Prop 8 supporter concluded that in the

38. See Declaration of John Doe 54 in Support of Plaintiffs’ Motion for Summary Judgment, ProtectMarriage.com v. Bowen, No. 2:09-cv-00058 (E.D. Cal. filed June 3, 2009). 39. Declaration of John Doe 51 in Support of Plaintiffs’ Motion for Summary Judgment, ProtectMarriage.com v. Bowen, No. 2:09-cv-00058 (E.D. Cal. filed June 3, 2009). 40. Declaration of John Doe 4 in Support of Plaintiffs’ Motion for Summary Judgment, ProtectMarriage.com v. Bowen, No. 2:09-cv-00058 (E.D. Cal. filed Jan. 15, 2009) (Exhibit B). 41. See Declaration of John Doe 10 in Support of Plaintiffs’ Motion for Summary Judgment, ProtectMarriage.com v. Bowen, No. 2:09-cv-00058 (E.D. Cal. filed June 3, 2009). 42. Troupis Declaration (Exhibit AW) (citing Matthai Kuruvila, Mormons Face Flak for Backing Prop. 8, S.F CHRON., Oct. 27, . 2008, available at http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/10/27/BAP113OIRD.DTL). See also CBS5, Heated Gay Marriage Debate Playing out in SJ Yard (Oct. 20, 2008), http://cbs5.com/local/gay.marriage.sign.2.844943.html. This second citation includes a photograph. 43. See Declaration of John Doe 2 in Support of Plaintiffs’ Motion for Summary Judgment, ProtectMarriage.com v. Bowen, No. 2:09-cv-00058 (E.D. Cal. filed Jan. 15, 2009); id. (Exhibit A). 44. Troupis Declaration (Exhibit Z), supra note 10. 45. Press Release, Alliance Defense Fund, “Calif. Professor to Student: ‘Ask God What Your Grade Is,’” Feb. 12, 2009, available at http://www.alliancedefensefund.org/news/pressrelease.aspx?cid=4823. 46. Declaration of John Doe 23. See also Plaintiffs’ Statement of Undisputed Facts in Support of Motion for Summary Judgment (Appendix B) (summarizing declaration submitted by John Doe 23). 47. Declaration of John Doe 16 in Support of Plaintiffs’ Motion for Summary Judgment, ProtectMarriage.com v. Bowen, No. 2:09-cv-00058 (E.D. Cal. filed June 3, 2009). 48. Id. 49. See id. 50. Id. John Doe 16 tried to tell the woman yelling at her that she, John Doe 16, was a fourth-generation San Franciscan and owned a house four blocks from where she was holding the Yes on 8 sign, but “the woman kept screaming and drowning [John Doe 16] out.” Id.

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future she would make sure that at least one man was with each group of wavers to ensure the protection and safety of the teenagers who participated.52 Prop 8 also triggered hostility against AfricanAmericans, who were reported to have supported the ballot measure by large margins. “According to eyewitness reports published on the Internet,” states one news source, “racial epithets have been _________________________________________
Prop 8 also triggered hostility against AfricanAmericans, who were reported to have supported the ballot measure by large margins.

klansmen were wearing Abercrombie polos and Birkenstocks.”54 Another man reported that “he and his boyfriend, who are both black, were carrying NO ON PROP 8 signs and still subjected to racial abuse.”55
56 “Mormons in the Crosshairs”56

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used against African Americans at protests in California—with some even directed against blacks who are fighting to repeal Prop. 8.”53 One man, for example, reported he was called a particular racial slur twice and said the anti-Prop-8 protest he attended “was like being at a klan rally except the

Mormons were particularly and systematically targeted for supporting Prop 8. One leading gayrights activist in West Hollywood said, “The main finger we are pointing is at the Mormon church’”57 Joe Solmonese, head of the Human Rights Campaign, echoed this sentiment on the Dr. Phil show when, in response to a question from a Mormon audience member asking why his church was being targeted, he reportedly declared, “We are going to go after your church every day for the next two years unless and until Prop 8 is overturned.”58 At least one of the Web sites targeting Prop 8 donors focuses specifically on Mormons.59 And one antiProp-8 activist has filed a complaint asking Califor-

51. See Declaration of John Doe 13. 52. See Declaration of John Doe 20 in Support of Plaintiffs’ Motion for Summary Judgment, ProtectMarriage.com v. Bowen, No. 2:09-cv-00058 (E.D. Cal. filed Jan. 15, 2009). 53. Troupis Declaration (Exhibit AK) (citing Alison Stateman, What Happens If You’re on Gay Rights’ ‘Enemies List’, TIME, Nov. 15, 2008, available at http://www.time.com/time/nation/article/0,8599,1859323,00.html). 54. Posting of Pam Spaulding to www.pamshouseblend.com, http://www.pamshouseblend.com/showDiary.do?diaryId=8077 (Nov. 07, 2008, 16:15:00 PM EST) (quoting Posting of Rod to rodonline.typepad.com, http://rodonline.typepad.com/ rodonline/2008/11/n-word-and-raci.html (Nov. 7, 2008, 12:34 EST) (internal quotations omitted)). 55. Id. (quoting Posting of Rod, supra note 54). Other sources also recognized the racial hostility that followed Prop 8. See Kathryn Kolbert, Memorandum from Kathryn Kolbert, President, People For the American Way Foundation, to Progressive Allies and Journalists (Nov. 7, 2008) (describing as “inexcusable” the “speed with which some white gay activists began blaming African Americans—sometimes in appallingly racist ways—for the defeat of Proposition 8”), available at http://site.pfaw.org/site/PageServer?pagename=issues_equality_prop_8_memo; Posting of Wayne Besen to www.truthwinsout.org, http://www.truthwinsout.org/blog/truth-wins-out-condemns-racial-intolerance-within-the-lgbtcommunity-following-proposition-8-defeat (Nov. 7, 2008) (expressing “grave disappointment” with “those in the LGBT community” who engaged in “scapegoating minorities”). 56. This phrase was also the title of an article authored by Kathryn Lopez and published at Townhall.com on November 26, 2008. See Kathryn Lopez, Mormons in the Crosshairs, TOWNHALL, Nov. 26, 2008, http://townhall.com/columnists/ KathrynLopez/2008/11/26/mormons_in_the_crosshairs. 57. Troupis Declaration (Exhibit AR) (citing Jim Carlton, Gay Activists Boycott Backers of Prop 8, WALL ST. J., Dec. 27, 2008 (quoting Vic Gerami and describing him as “a leading gay activist in West Hollywood, Calif.”), available at http://sec.online.wsj.com/article/SB123033766467736451.html). 58. Maggie Gallagher, Above the Hate, REAL CLEAR POLITICS, Nov. 26, 2008 (internal quotations omitted), http://www.realclearpolitics.com/a rticles/2008/11/above_the_hate.html. 59. See Troupis Declaration (Exhibit AW), supra note 42. According to this source, “One Web site run by a Prop. 8 opponent, Mormonsfor8.com, identifies the name and hometown of every Mormon donor.” Id. The source also reported that, “[o]n the Daily Kos, the nation’s most popular liberal blog, there is a campaign to use that information to look into the lives of Mormons who financially support Prop. 8.” Id.

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nia officials to investigate the Church of Jesus Christ of Latter-day Saints for its support for the marriage amendment.60 The “Home Invasion” television ad, in particular, sought to exploit anti-Mormon bigotry for political gain. The ad depicts two Mormon missionaries _________________________________________
Mormons were particularly and systematically targeted for supporting Prop 8.

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invading the home of a lesbian couple, ransacking their belongings, and tearing up their marriage license. “Hi, we’re from the Church of Jesus Christ of Latter-day Saints,” says one of the Mormon missionaries. “We’re here to take away your rights,” says the other. The ad concludes with script and a voiceover stating, “Say NO to a Church taking over

your government. Vote NO on Proposition 8.”61 This manifestation of undisguised religious bigotry undoubtedly caused great concern to many people. The Los Angeles Times, on the other hand, lamented that same-sex marriage activists had failed to air more “hard-hitting” ads like it.62 After Prop 8 passed, crowds of same-sex marriage activists congregated for protests at Mormon houses of worship throughout the nation.63 One video shows same-sex marriage activists massed outside the Mormon temple in New York City crying “fascist church” repeatedly.64 Another video appears to show angry activists rattling the gates of the temple in Los Angeles and chanting “shame on you.”65 Images from various protests show signs like “Mormon Scum,”66 “Get your filthy church off me,”67 and “Keep your hate in Salt Lake.”68

60. See Editorial, The Prop 8 Campaign Money, N.Y. TIMES, Nov. 29, 2008, available at http://www.nytimes.com/2008/11/29/ opinion/29sat2.html?_r=3&th&emc=th; see also Californians Against Hate, Sworn Complaint Filed Against Mormon Church with California FPPC and 2 State Attorneys General, http://californiansagainsthate.blogspot.com/2008/11/ sworn-complaint-filed-against-mormon.html (Nov. 13, 2008, 00:55:00 PST). 61. A video of the smear ad is posted at Youtube online video: Home Invasion: Vote No on Prop 8 (posted by CourageCampaign, Oct. 31, 2008), http://www.youtube.com/watch?v=q28UwAyzUkE. 62. Editorial, Prop. 8’s Battle Lessons, L.A. TIMES, Nov. 11, 2008, available at http://www.latimes.com/news/opinion/editorials/ la-ed-marriage11-2008nov11,0,3352846.story. The editorial discussed the “many mistakes” made by Prop 8 foes, and stated, “Same-sex marriage advocates produced only one hard-hitting commercial, depicting a pair of Mormon missionaries ripping up the wedding license of a married gay couple, but didn’t air it until election day.” Id. 63. Protests in the City of Los Angeles prompted the Los Angeles Police Department to call a “tactical alert.” FOXNews, Several Gay Marriage Ban Protesters Arrested in Clashes with Police in California (Nov. 6, 2008), http://www.foxnews.com/ story/0,2933,447744,00.html. A protest in Long Beach, though characterized as mostly peaceful, reportedly involved the arrest of 15 people, a smashed police car window, and roughly 100 protestors who refused to leave, blocked traffic at an intersection, and attempted to incite others to riot. See Troupis Declaration (Exhibit K) (citing Pamela Hale-Burns, Prop. 8 Protest Mostly Peaceful Despite 15 Arrests, LONG BEACH PRESS-TELEGRAM, Nov. 8, 2008, available at http://www.presstelegram.com/search/ci_10938555). Same-sex marriage supporters also protested in other cities throughout California and the nation. See, e.g., CNN, Same-sex Marriage Rallies Stretch Across Nation (Nov. 16, 2008), http://www.cnn.com/2008/US/11/15/same.sex.marriage/index.html; Wyatt Buchanan, Prop. 8 Protests Could Become National Movement, S.F CHRON., Nov. 15, 2008, available at http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/ . 11/15/MNF0144O0P.DTL. 64. A copy of this video can be viewed at Youtube online video: Gay Marriage Mormon Church Protest NYC (posted by Gllafc, Nov. 14, 2008), http://www.youtube.com/watch?v=PvdDoLeFXh0&feature=related. 65. See, for example, the footage from 5:08 to 6:00 in the video posted at Youtube online video: Mormon Temple Los Angeles —Target of Gay Anger & Mob—LGBT Protest—Join the Impact LA (posted by Vintageyellow71, Nov. 7, 2008), http://www.youtube.com/watch?v=GxagcNFyHyc&feature=related. 66. See, e.g., Erin Gorski, Anger Over Gay Marriage Vote Directed at Mormons, USA TODAY, Nov. 13, 2008, available at http://www.usatoday.com/news/religion/2008-11-13-Mormon-gay-marriage_N.htm. The article reported that protestors chanted “Mormon scum” outside the Mormon temple in Los Angeles. Id. Also see the photograph posted at Maurine Jensen Proctor, “The Hypocrisy of the Tolerance Movement,” MERIDIAN MAG., available at http://www.meridianmagazine.com/familyleadernetwork/081114tolerance.html (last visited Aug. 8, 2009).

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Anti-Mormon malice reached a new level when someone mailed packages containing suspicious white powder to Mormon temples in California and Utah.69 At least one of those incidents triggered a domestic terrorism investigation by the FBI.70 Meanwhile, in Colorado, perpetrators placed a Book of Mormon on the steps of a Mormon church and lit it on fire.71 Police reportedly investigated the incident as a “bias-motivated arson” related to the church’s position on Prop 8.72

yelled “What do you have against gays?” and punched Nunez in the face.74 According to Prop 8 supporters, Nunez suffered a bloody eye and wounds to his face and was taken by ambulance to a local hospital “where he received 16 stitches under his eye.”75 _________________________________________
Anti-Mormon malice reached a new level when someone mailed packages containing suspicious white powder to Mormon temples in California and Utah.

Violence and Threats of Violence
Some of the animosity directed against people and groups that supported Prop 8 was openly threatening or even violent. In Modesto, for example, a Prop 8 supporter was allegedly punched in the face by someone who had stolen several Yes on 8 signs. According to news reports, Jose Nunez, who became a U.S. citizen just months before Prop 8 passed, was waiting to distribute signs outside his Catholic church when a man grabbed several Yes on 8 signs and fled.73 When Nunez followed the thief and tried to recover the signs, the thief reportedly

____________________________________________

In Fresno, the town mayor received a death threat for supporting Prop 8. The threat stated, “Hey Bubba, you really acted like a real idiot at the Yes of [sic] Prop 8 Rally this past weekend. Consider yourself lucky. If I had a gun I would have gunned you down along with each and every other supporter.”76 The threat also mentioned a “little surprise” for a local pastor who supported Prop 8 and “his congregation of lowlife’s” [sic]. “Keep letting him preach hate and he’ll be sorry,” the perpetrator threatened.

67. The sign can be seen during the period, roughly, from 0:51 to 0:56 in the video posted at Youtube online video: No on Prop 8 Protest at Mormon Church, Front Gate 11/6/08 (posted by MarcoMoonTV, Nov. 6, 2008), http://www.youtube.com/watch?v=P4m5yUhrXj0&feature=related. 68. The sign can be seen during the period, roughly, from 2:51 to 2:55 in the video posted at Youtube online video: supra note 64. Another sign sports a hand-drawn swastika. It can be seen during the period, roughly, from 3:40 to 3:44 in the video posted at id. The swastika was placed inside the letter “o” in the message “H8 IS TOXIC.” Id. 69. See Tami Abdollah, L.A. Mormon Temple Closed After Suspicious Envelope Arrives in Mail, L.A. TIMES, Nov. 14, 2008, available at http://www.latimes.com/news/local/la-me-mormon14-2008nov14,0,7206616.story?track=rss. White powder also was sent to a Knights of Columbus facility in New Haven, Connecticut. See Troupis Declaration (Exhibit J) (citing Ben Winslow, Powder Scares at 2 LDS Temples, Catholic Plant, DESERET NEWS, Nov. 14, 2008, available at http://deseretnews.com/article/content/mobile/1,5620,705262822,00.html?printView=true). 70. See Ben Winslow, FBI to Run More Tests on Mystery Substance Mailed to LDS Church, DESERET NEWS, Nov. 18, 2008, available at http://www.deseretnews.com/article/1,5143,705263982,00.html. According to this story, which focused on the white powder attack in Salt Lake City, Utah, “The FBI has labeled its probe a domestic terrorism investigation.” Id. 71. KMGH, Book of Mormon Set Ablaze on Church Door Step (Nov. 12, 2008), http://www.thedenverchannel.com/news/ 17964575/detail.html. 72. Troupis Declaration (Exhibit N) (citing Jennifer Garza, Protests over Proposition 8 Outcome Getting Personal, DESERET NEWS, Nov. 13, 2008, available at http://deseretnews.com/article/content/mobile/1,5620,705262671,00.html). See also KMGH, supra note 71. 73. See Seth Hemmelgarn, Prop 8 Fight Gets Ugly on Both Sides, BAY AREA REP., Oct. 16, 2008, available at http://www.ebar.com/ news/article.php?sec=news&article=3403. See also Catholic News Agency, “Attack Outside of Catholic Church Part of ‘Wave of Intimidation,’ Says Yes on 8,” Oct. 15, 2008, http://www.catholicnewsagency.com/new.php?n=14069. 74. Catholic News Agency, supra note 73. 75. Press Release, ProtectMarriage.com, “Prop. 8 Supporter Violently Attacked for Distributing Lawn Signs,” Oct. 13, 2008, available at http://www.protectmarriage.com/article/prop-8-supporter-violently-attacked-for-distributing-lawn-signs.

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“He will be meeting his maker sooner than expected.”77 The threat also stated that anyone in Fresno displaying a Yes on Prop 8 yard sign or bumper sticker was “in danger of being shot or firebombed.”78 Police took the threat seriously, launching a criminal investigation and taking extra steps to protect the mayor and pastor.79 _________________________________________
Same-sex marriage activists have also targeted the places where Prop 8 supporters work.

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In another incident, an elderly woman in Palm Springs was besieged by an angry mob protesting Prop 8. Video footage posted on the Internet shows several men shouting at the woman as a television reporter tries to interview her.80 “Get out of here,” one man shouts in the elderly woman’s face.81 Later the video shows the woman, who is carrying a large cross at this point, surrounded by several men, including at least one who knocks the cross out of the woman’s hands and stomps on it.82 Someone also reportedly spit on the 69-year-old lady.83

A small group of Christians encountered similar hostilities when an angry crowd apparently took them for pro-Prop 8 demonstrators as they prayed and sang hymns on a sidewalk in the Castro District of San Francisco.84 One of the Christians reportedly later stated that the people in the crowd shouted words like “haters” and “bigots” and then “started throwing hot coffee, soda and alcohol on us and spitting (and maybe even peeing) on us.”85 Someone in the crowd allegedly threatened to kill the group’s leader, and someone else allegedly tried to pull down the pants of one of the men in the group.86 A woman in the group was allegedly struck on the head with her own Bible before being thrown to the ground and kicked.87 Video footage posted on the Internet shows a band of police officers dressed in riot gear fending off the angry crowd and escorting the Christians to safety.88

Employees and Business Owners Targeted
Same-sex marriage activists have also targeted the places where Prop 8 supporters work. Businesses and other institutions that employ individuals who

76. Troupis Declaration (Exhibit E) (citing John-Thomas Kobos, Proposition 8 Email Threats, KFSN-TV (Nov. 7, 2008), http://abclocal.go.com/kfsn/story?section=news/local&id=6494921). A copy of the threatening communication is included in Exhibit E to the Troupis Declaration and can be found at http://www.kfsn.com/docs/Life%20Threatening%20Email.pdf . 77. Id. 78. Id. “No on 8” condemned the threats. See id. 79. See Troupis Declaration (Exhibit C) (citing CBS47, Proposition 8 Death Threats (Oct. 31, 2008), http://www.cbs47.tv/news/local/story/Proposition-8-Death-Threats/iQyK1E0C30aNjdD0tVyMJA.cspx); id. (Exhibit D) (citing Amanda Perez, Prop 8 Death Threats, KFSN-TV (Oct. 31, 2008), http://abclocal.go.com/kfsn/story?section=news/ local&id=6479861&pt=print). 80. See the footage from 0:00 to 2:29 of the video posted at Youtube online video: Palm Springs Prop 8 Rally Turns Ugly (posted by PSConfidential, Apr. 30, 2009), http://www.youtube.com/watch?v=znXHJQSX78o. 81. See the footage from 0:11-0:16 in the video posted at id. 82. See the footage from 2:29 to the end of the video posted at id. 83. See Adrienne S. Gaines, Radical Gay Activists Seek to Intimidate Christians, CHARISMA MAG., Nov. 19, 2008, available at http://www.charismamag.com/index.php/news/19444. 84. See Troupis Declaration (Exhibit O), supra note 24 (reporting understanding of the group that the crowd thought they were “marriage amendment demonstrators”); see also Troupis Declaration (Exhibit F) (citing Colleen Raezler, O’Reilly Alone Reports Gay Attack on Christians, Culture and Media Institute (Nov. 19, 2008), http://www.cultureandmediainstitute.org/printer/2008/20081119181938.aspx); Troupis Declaration (Exhibit G) (citing KTVU, Anger over Prop. 8 Erupts in San Francisco (Nov. 14, 2008), www.ktvu.com/print/17986914/detail.html). 85. Troupis Declaration (Exhibit F), supra note 84. 86. See Troupis Declaration (Exhibit O), supra note 24. 87. See id.; see also Troupis Declaration (Exhibit F), supra note 84.

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personally donated to Prop 8 have been threatened with and in some cases subjected to picketing, protests, and damaging boycotts. Some Prop 8 donors resigned from their jobs or took a leave of absence to protect their employers and colleagues. For example, Scott Eckern was employed as the director of the nonprofit California Musical Theater in Sacramento before being targeted for personally donating $1,000 to Prop 8. Once Mr. Eckern’s support for Prop 8 was discovered, the theater _________________________________________
Targeting businesses for the political and religious views of their owners or even their employees has raised serious concerns about the state of public discourse regarding marriage and the condition of civil society generally.

____________________________________________

was “deluged” with criticism from prominent artists who opposed Prop 8.89 Critics included Marc Shaiman, the composer of Hairspray, who stated that his work could not be performed at the theater because of Mr. Eckern’s support for Prop 8.90 Mr. Eckern resigned.91 Richard Raddon was the director of the Los Angeles Film Festival before he landed in the crosshairs of Prop 8 opponents. Mr. Raddon personally donated $1,500 to Prop 8. As in the case of

Mr. Eckern, once information about Mr. Raddon’s personal donation was disclosed to the state and published on the Internet, he became a target of Prop 8 opponents.92 According to an op-ed in The Wall Street Journal, “A threatened boycott and picketing of the next festival forced him to resign.”93 The extreme nature of this crude, but effective new tactic was poignantly illustrated in the case of Marjorie Christoffersen, a 67-year-old restaurant employee who donated a mere $100 to Prop 8.94 Once information about Ms. Christoffersen’s $100 donation was published on the Internet, Prop 8 opponents launched a protest against the restaurant where she worked, prompting the restaurant to offer activists a free brunch and Ms. Christoffersen to offer an apology.95 However, when Ms. Christoffersen refused to renounce her support for Prop 8— like Scott Eckern and Richard Raddon, Marjorie Christoffersen is a Mormon—the meeting “turned ugly” and “[b]oisterous street protests erupted that night.”96 Ms. Christoffersen eventually decided to take a leave of absence to protect the restaurant, which is owned by her mother, and the other employees who worked there.97 In other cases, business owners who supported Prop 8 either personally or through their enterprises have had their businesses targeted for reprisals by same-sex marriage activists. A dentist in Palo Alto

88. This video has been posted at Youtube online video: Christians Assaulted in San Francisco (posted by PublicFreedom Nov. 20, 2008), http://www.youtube.com/watch?v=nTuqXiHzZtk. In addition, a local news source reported that “San Francisco Police officers in riot gear formed a line and escorted the religious group into a van to safely get them out of the area.” KTUV, Anger over Prop. 8 Erupts in San Francisco (Nov. 14, 2008), www.ktvu.com/print/17986914/detail.html. 89. Troupis Declaration (Exhibit A) (citing John R. Lott, Jr. and Bradley Smith, Op-Ed, Donor Disclosure Has Its Downsides: Supporters of California’s Prop. 8 Have Faced a Backlash, WALL ST. J., Dec. 26, 2008, available at http://online.wsj.com/article/ SB123025779370234773.html). 90. Troupis Declaration (Exhibit AI) (citing Marcus Crowder, Theater Felt Growing Pressure before Artistic Director Quit, SACRAMENTO BEE, Nov. 12, 2008, available at http://www.sacbee.com/295/story/1390297.html). See also Jesse McKinley, Theater Director Resigns Amid Gay-Rights Ire, N.Y. TIMES, Nov. 12, 2008, available at http://www.nytimes.com/2008/11/13/ theater/13thea.html. 91. See Troupis Declaration (Exhibit A), supra note 89; Troupis Declaration (Exhibit N), supra note 72. 92. Troupis Declaration (Exhibit A), supra note 89. This source states that the passage of Prop 8 “has generated retaliation against those who supported it, once their financial support was made public and put online.” Id. (emphasis added). 93. Id. 94. See Troupis Declaration (Exhibit AR), supra note 57. 95. See id. 96. Id. 97. See id.

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lost patients because he donated $1,000.98 Purves & Associates, an insurance company in Davis, was picketed with signs such as “Purves Family Supports Homophobia” after family members donated to Prop 8.99 Protesters rallied and handed out free ice cream to retaliate against a family-owned creamery that supported Prop 8.100 Activists boycotted the Grand Hyatt hotel in San Diego because its developer donated money to help to put Prop 8 on the ballot.101 Same-sex marriage activists also targeted a self-storage company because its owner and his family donated money to Prop 8.102 Boycotting businesses that engage in commercial behavior consumers find objectionable is a timehonored form of activism in American society. However, targeting businesses for the political and religious views of their owners or even their employees—and the decision of these individuals to participate in democratic political processes—has raised serious concerns about the state of public discourse regarding marriage and the condition of civil society generally. No individual should be compelled to choose between making a living and participating in democratic processes affecting fundamental matters of public concern, such as marriage.

more common in political contests concerning same-sex marriage and other issues involving homosexuality. _________________________________________
No individual should be compelled to choose between making a living and participating in democratic processes affecting fundamental matters of public concern, such as marriage.

____________________________________________

Beyond Prop 8
The weeks and months after Prop 8 passed also witnessed other incidents of hostility directed against expressions of support for traditional views on marriage and homosexuality. Some of these incidents were not directly connected with support for Prop 8, which suggests, grimly, that some of the hostilities described in this paper could become

In one disturbing incident just days after Prop 8 passed, a radical group called “Bash Back!” allegedly invaded a Christian church in Michigan. The group’s Web site featured photos of members dressed like terrorists and brandishing various objects as weapons.103 A press release posted by the Alliance Defense Fund, a public interest legal association that is suing the openly anarchist group in federal court, states: [M]embers of the group dressed in militant garb staged a protest outside the church during a worship service to distract security personnel, blocking access to the building and parking lot at various times. Other members of the group dressed in plain clothes then deceptively entered the building. At a coordinated time, they sprang up to disrupt the service, terrifying many attendees. The group shouted religious slurs, unfurled a sign, and threw fliers around the sanctuary while two women began kissing near the podium. The group pulled fire alarms as they ran out of the building.104

98. See Troupis Declaration (Exhibit A), supra note 89. 99. Troupis Declaration (Exhibit N), supra note 72. 100. See Troupis Declaration (Exhibit AQ) (citing KCRA, Prop. 8 Opponents Protest Ice Cream Parlor (Nov. 17, 2008), http://www.kcra.com/politics/17994183/detail.html). 101. See Troupis Declaration (Exhibit AS) (citing William M. Welch, Prop 8 Foes ‘Blacklist’ Tactics, USA TODAY, Dec. 21, 2008, available at http://www.usatoday.com/news/nation/2008-12-21-blacklist_N.htm). See also Troupis Declaration (Exhibit BD) (citing Bill Ainsworth, Gay Rights Groups to Boycott Manchester Grand Hyatt: Owner Donated to Proposition 8, SAN DIEGO UNION-TRIBUNE, July 10, 2008, available at http://www.signonsandiego.com/news/metro/20080710-99991m10boycott.html); Troupis Declaration (Exhibit BE) (citing Tony Cochran, Rally Against Prop H8: Manchester Grand Hyatt, INDYMEDIA, Nov. 18, 2008, http://www.indybay.org/newsitems/2008/11/18/18552103.php). 102. See Troupis Declaration (Exhibit AS), supra note 101. 103. See Alliance Defense Fund, ADF Files Suit Against Radical Group that Invaded Mich. Church (May 13, 2009), http://www.alliancedefensefund.org/news/story.aspx?cid=4944.

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In accounts allegedly posted on the Internet after the invasion, Bash Back! described the Mount Hope Church as a “deplorable, anti-queer mega-church” that is “complicit in the repression of queers in Michigan and beyond”105 and cited the church’s “stance on queer identities” as one reason for the attack.106 Another case, more widely reported than the church invasion in Michigan, involved Carrie Prejean, the Miss USA beauty contestant. Ms. Prejean was competing in the final round of the Miss USA pageant when she drew a question from pageant judge Perez Hilton about legalizing same-sex marriage.107 Ms. Prejean’s answer—that, in her view, marriage should be between a man and a woman—generated a tidal wave of criticism, including from Mr. Hilton, who later described Ms. Prejean in crude and derogatory terms in a video blog on his Web site.108 A co-director of the Miss California association also condemned Ms. Prejean, stating that “[r]eligious beliefs have no place in politics in the Miss CA family.”109 Both Ms. Prejean and Mr. Hilton have speculated that her answer cost her the crown.110

Lessons of Prop 8 Hostilities
Several anti-Prop-8 activists have condemned certain types of hostility described in this paper.111 Some of the incidents described in this paper have involved illegal conduct, meaning the wider community has already condemned it. Some acts of hostility have been perpetrated by random individuals acting in isolation or by unpredictable crowds expressing anger and frustration. Yet none of these facts changes the reality that many Prop 8 supporters have paid a considerable price for defending marriage as the union of husband and wife. Indeed, no matter who is to blame for the hostility surrounding Prop 8, one lesson of Prop 8 cannot be denied: Individuals or institutions that publicly defend marriage as the union of husband and wife risk harassment, reprisal, and intimidation—at least some of it targeted and coordinated. Furthermore, although some same-sex marriage activists have expressed disagreement with certain types of conduct described in this paper, few activists would disavow the ideology underlying much of the outrage at Prop 8’s success. Arguments for

104. Id. 105. Complaint, Mount Hope Church v. Bash Back, No. 1:09-cv-00427 (W.D. Mich. filed May 13, 2009) (Exhibit 2). 106. Id. (Exhibit 3) 107. See, e.g., FOXNews, Miss California Sparks Furor with Gay Marriage Comments on Miss USA Telecast (Apr. 20, 2009), http://www.foxnews.com/story/0,2933,517137,00.html. According to one source, “Perez [Hilton] had actually written the question hoping Miss Utah would answer it, thereby bringing attention to the Mormon Church’s financing of the Yes on Prop. 8 campaign.” Benoit Denizet-Lewis, The Real Perez Hilton, ADVOCATE, Aug. 2009, available at http://www.advocate.com/issue_story_ektid92886.asp. 108. Denizet-Lewis, The Real Perez Hilton, supra note 107. 109. Posting of Jimmy Orr to features.csmonitor.com, http://features.csmonitor.com/politics/2009/04/20/miss-californiasparks-outrage-over-gay-marriage-remarks (Apr. 20, 2009) (internal quotations omitted). 110. See id. See also ABCNews, Perez Hilton ‘Floored’ by Miss California (Apr. 20, 2009), http://abcnews.go.com/Entertainment/ Television/Story?id=7381893&page=2. 111. See, e.g., KCPW, GLBT Advocates Condemn Attacks on LDS Church (Nov. 14, 2008) (reporting condemnation by GLBT advocacy group Equality Utah of vandalism and white powder attacks directed against Mormon houses of worship), http://kcpw.org/blog/local-news/2008-11-14/glbt-advocates-condemn-attacks-on-lds-church; Abdollah, supra note 69 (reporting that the L.A. Gay & Lesbian Center in Los Angeles issued a statement “decrying” the incident involving white powder mailed to a Mormon temple); Chelsea Phua, Mormon Church in Orangevale Vandalized in Wake of Prop. 8 Vote, SACRAMENTO BEE, Nov. 9, 2008 (reporting that No on 8 campaign denounced vandalism); Amanda Perez, Prop 8 Death Threats, KFSN-TV (Oct. 31, 2008), http://abclocal.go.com/kfsn/story?section=news/local&id=6479861&pt=print (reporting that No on 8 organizer condemned death threat against Fresno mayor and pastor), http://abclocal.go.com/kfsn/ story?section=news/local&id=6479861&pt=print; KCAL-9, Vandals Target Prop 8 Supporters in NorCal (Oct. 28, 2008) (reporting that the campaign to defeat Prop 8 “issued a statement saying it condemns vandalism”), http://cbs2.com/local/ Proposition.8.Vandalism.2.850469.html.

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same-sex marriage, although often couched in terms of tolerance and inclusion, are based fundamentally on the idea that preserving marriage as unions of husband and wife is a form of bigotry, irrational prejudice, and even hatred against homosexual persons who want the state to license their _________________________________________
Individuals and institutions that support marriage as the union of husband and wife risk paying a price for that belief in many legal, social, economic, and cultural contexts.

erties of individuals and institutions that interact with the government or become subject to nondiscrimination laws.112 The hostility surrounding Prop 8 shows how, once this ideology seeps into the culture more generally, individuals and institutions that support marriage as the union of husband and wife risk paying a price for that belief in many legal, social, economic, and cultural contexts.

Conclusion
When people stand firmly by their beliefs about marriage as the union of husband and wife despite facing social stigmatization, economic hardship, and other reprisals, they provide an important example of civic courage and inspire particular virtues that are essential to the proper functioning of any free and open society. The freedom of parties on both sides of the marriage debate to voice their views and to promote them in public policy should be respected. —Thomas M. Messner is a Visiting Fellow in the Richard and Helen DeVos Center for Religion and Civil Society at The Heritage Foundation.

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relationships. As increasing numbers of individuals and institutions, including public officials and governmental bodies, embrace this ideology, belief in marriage as a relationship between a man and a woman likely will come to be viewed as an unacceptable form of discrimination that should be purged from public life through legal, cultural, and economic pressure. Other sources have explained how changes in law based on this ideology will threaten the religious lib-

112. See, e.g., SAME-SEX MARRIAGE AND RELIGIOUS LIBERTY: EMERGING CONFLICTS (Douglas Laycock et al., eds., 2008); Thomas M. Messner, Same-Sex Marriage and the Threat to Religious Liberty, Heritage Found. BACKGROUNDER (No. 2201), Oct. 30, 2008, at 8–18, available at http://www.heritage.org/research/family/upload/bg_2201.pdf; Roger Severino, Or for Poorer? How Same-Sex Marriage Threatens Religious Liberty, HARV. J.L. &PUB. POL’Y 30 (2007).

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EXHIBIT 42

Scuffles Over Gay-Marriage Ballot Measure Lead to Injuries, Arrest - San Diego 6 Page 1 of 1 Case: 11-17255 10/13/2011 ID: 7927644 DktEntry: 12-2 Page: 33 of 58

Scuffles Over Gay-Marriage Ballot Measure Lead to Injuries, Arrest
Last Update: 11/04/2008 11:21 pm CARLSBAD - Disputes over Proposition 8 campaign signs in Carlsbad left one man behind bars on suspicion of assault and at least one other alleged assailant at large Tuesday, authorities reported. The latter of the two scuffles over the ballot measure, which would ban same-sex marriage in California, occurred about 10 a.m., when a jogger spotted two men removing "Yes on 8" signs in the area of Aviara Parkway and Cormorant Drive, police spokeswoman Lynn Diamond said. When the witness confronted the thieves, one of them pulled off the witness' hat and smashed his eyeglasses on the ground. The attacker's large black-and-tan dog then bit the victim in his upper leg, causing deep puncture wounds, according to Diamond. At that point, the assailant -- a man who appeared to be in his late 30s or early 40s, wearing shorts and a polo shirt -- ran off along with his companion, who also was leading a dog. A similar dispute left a Carlsbad couple in their 70s, bruised and battered and sent a neighbor of theirs to jail Monday night, according to police. The row began when a 76-year-old man and his 77-year-old wife confronted Lawrence A. Pizzicara, 53, as he was placing "No on 8" signs on their property in the 6900 block of Sandcastle Drive, blocking their pro-Prop 8 placards, Lt. Neil Gallucci said. During the ensuing argument, Pizzicara allegedly attacked the couple, beating them and inflicting "significant" injuries, the lieutenant said. Medics treated them at the scene, according to Gallucci. Pizzicara was arrested about 8 p.m. and booked into Vista Detention Facility on suspicion of battery and elder abuse.
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA Case number: 09-2292 PLTF/DEFT EXHIBIT NO. DIX1725 Date admitted: ________________ By: ___________________________

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UNITED STATES DISTRICT COURT Page: 35 of 58 NORTHERN DISTRICT OF CALIFORNIA Case number: 09-2292 PLTF/DEFT EXHIBIT NO. DIX1792

10/28/08 San Jose Mercury News 3B 2008 WLNR 20575740 San Jose Mercury News (CA) Copyright 2008 San Jose Mercury News October 28, 2008 Section: Local VANDALS HIT PROP . 8 SUPPORTERS

Date admitted: ________________ By: ___________________________

Mark Gomez, Mercury News For the second time in a week, homeowners in South San Jose have been targeted for their support of a proposition that would change the California constitution to define marriage as a union between a man and a woman. Unlike the previous incident where no law was broken, the culprits who spray-painted large "No on 8" messages Sunday night on the garage doors of two homes on a cul-de-sac near Monterey and Bernal roads could face jail time and a fine if arrested and convicted. San Jose police were called to the scene and filed a report, according to the homeowners. The maximum sentencing for felony vandalism conviction is three years in state prison and/or a $10,000 fine, according to a spokeswoman for the Santa Clara County District Attorney's Office. For a misdemeanor conviction, the maximum punishment is one year in county jail and/or a $1,000 fine. The homeowners, Tom and Kelly Byrne and Frank and Evalina Ybarra, Marriage" signs posted on their front lawns on Southgate Court Byrnes and Ybarras, friends who live across from each other on had their garage doors spray-painted in large letters with the had "Yes on 8, Protect for about a week. The the small cul-de-sac, words "No on 8."

The "No on 8" slogan refers to the hotly contested Proposition 8 ballot measure in next week's election that would ban same-sex marriage in California. The rear window of the Byrnes' minivan was also hit with red spray paint. Two other homes located deeper into the cul-de-sac with Yes on 8 signs were unscathed. "Regardless that it's Prop. 8, I'm angry that somebody would take it upon themselves to destroy my property," Kelly Byrne said. "To have such little respect for me as a person. It angers me that they would do something so extreme instead of coming and talking to me, especially if it's someone in our neighborhood. "Instead they took the cowardly way and painted our house." Sunday night's incident comes on the heels of a situation earlier this month in South San Jose where two women parked a sport-utility vehicle with a message painted on the rear window that said "Bigots live here" in front of the home bearing a Yes on Proposition 8 banner.

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The vehicle, which was parked for about three days in the street in front of a home on Harwood Road near Blossom Hill Avenue, was tracked by the Mercury News to Mara McWilliams and Renee Mangrum. In 2004, McWilliams wrote in a Mercury News article her "feelings of liberation, validation and equality" when the couple married in 2004 in San Francisco. The Byrnes read about the incident -- which was not illegal -- in the Mercury News and discussed the possibility of something similar happening to them. But they never really imagined the political firestorm would reach the point where their homes were vandalized. "We were joking about it, that it's not going to happen again," Kelly Byrne said. "But it did, and a little worse." Both couples recognize that Proposition 8 is a hot-button issue of this election but insist there is a line that shouldn't be crossed. "This whole election is very emotionally driven on both sides, but you don't break the law," Frank Ybarra said. "Had they just taken the sign, you would have said that's par for the course. But when they trespass and vandalize, it's borderline terrorism, in my book. "Because it's not just your property, it's your home. That's where your family lives." Sgt. Mike Sullivan said the San Jose Police Department has not tracked incidents of political sign vandalism, but he does know there have been at least four reported incidents involving Proposition 8. Police are "concerned" about this behavior, he said. "It's one thing to yank out someone's sign, it's another to go on their property and deface it." The No on Proposition 8 campaign issued a statement saying it "condemns vandalism and activities of this kind that are in no way connected to the No on Prop. 8 campaign." As for the Byrnes and Ybarras, both couples said they are relative newcomers to public display of political beliefs. The only other time the Byrnes have posted such a sign was in the spring in support of a city council candidate. "To us, it's nothing different than putting out a Ash Kalra sign that we had in May," Kelly Byrne said. "It's a sign to endorse a prop, like any other. To me, you decide at the polls, not in someone's front yard. You make your voice heard at the polls." Contact Mark Gomez at mgomez@mercurynews.com or (408) 920-5869. ---- INDEX REFERENCES ---REGION: (California (1CA98); North America (1NO39); Americas (1AM92); USA (1US73)) EN

Language:

OTHER INDEXING: (ASH KALRA; MERCURY NEWS; SAN JOSE POLICE DEPARTMENT; SANTA CLARA COUNTY

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DISTRICT ATTORNEYS OFFICE) (Bigots; Byrnes; Contact Mark Gomez; Evalina Ybarra; Frank Ybarra; Kelly Byrne; Mara McWilliams; McWilliams; Mike Sullivan; Renee Mangrum; Sunday; Tom; VANDALS HIT; Ybarras) EDITION: Valley Final Word Count: 887 10/28/08 SJMERCN 3B END OF DOCUMENT

 

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UNITED STATES DISTRICT COURT Page 1 NORTHERN DISTRICT OF CALIFORNIA Case number: 09-2292 PLTF/DEFT EXHIBIT NO. DIX2525
1 of 2 DOCUMENTS

Date admitted: ________________ By: ___________________________

Copyright 2009 The New York Times Company The New York Times February 8, 2009 Sunday Late Edition - Final SECTION: Section BU; Column 0; Money and Business/Financial Desk; SLIPSTREAM; Pg. 3 LENGTH: 959 words HEADLINE: Disclosure, Magnified On the Web BYLINE: By BRAD STONE BODY: 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. ''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

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Disclosure, Magnified On the Web The New York Times February 8, 2009 Sunday

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 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.''

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Disclosure, Magnified On the Web The New York Times February 8, 2009 Sunday

URL: http://www.nytimes.com GRAPHIC: PHOTO: California's Proposition 8 drew protests last year. A Web site takes names and ZIP codes of donors supporting the measure and overlays data on a map.(PHOTOGRAPH BY J. EMILIO FLORES FOR THE NEW YORK TIMES) MAP LOAD-DATE: February 8, 2009

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EXHIBIT 45

A life thrown into turmoil by $100 donation for Prop. 8 - Los Angeles Times

http://articles.latimes.com/2008/dec/14/local/me-lopez14

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California | Local
You are here: LAT Home > Articles > California | Local Related Articles
SAN DIEGO PEOPLE Aug 22, 1989 LOS ANGELES - Restaurateurs Urge 2-Year Delay in Smoking Ban Jun 23, 1993 SALSA, CHIPS AND TCHOTCHKES Jun 10, 2001

A life thrown into turmoil by $100 donation for Prop. 8
By STEVE LOPEZ December 14, 2008

Margie Christoffersen didn't make it very far into our conversation before she cracked. Chest heaving, tears streaming, she reached for her husband Wayne's hand and then mine, squeezing as if she'd never let go. "I've almost had a nervous breakdown. It's been the worst thing that's ever happened to me," she sobbed as curious patrons at a Farmers Market coffee shop looked on, wondering what calamity had visited this poor woman who's an honest 6 feet tall, with hair as blond as the sun.
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Well, Christoffersen was a manager at El Coyote, the Beverly Boulevard landmark restaurant that's always had throngs of customers waiting to get inside. Many of them were gay, and Christoffersen, a devout Mormon, donated $100 in support of Proposition 8, the successful November ballot initiative that banned gay marriage. She never advertised her politics or religion in the restaurant, but last month her donation showed up on lists of "for" and "against" donors. And El Coyote became a target. A boycott was organized on the Internet, with activists trashing El Coyote on restaurant review sites. Then came throngs of protesters, some of them shouting "shame on you" at customers. The police arrived in riot gear one night to quell the angry mob. The mob left, but so did the customers. Sections of the restaurant have been closed, a manager told me Friday during a very quiet lunch hour. Some of the 89 employees, many of them gay, have had their hours cut and layoffs are looming. And Christoffersen, who has taken a voluntary leave of absence, is wondering whether she'll ever again be able to work at the landmark restaurant, which opened in 1931 (at 1st and La Brea) and is owned by her 92-year-old mother.

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UNITED STATES DISTRICT COURT "It's NORTHERN DISTRICT OF been so hard," she said, breaking down again. CALIFORNIA Case number: 09-2292

A lot of customers saw Christoffersen as the face of the restaurant. She was the hostess who roamed from table to table with a pitcher of water, refilling glasses and schmoozing with friends. Christoffersen, raised Mormon by her late father, told me she has no problem with gay people.

"I love PLTF/DEFT EXHIBIT NO. DIX2528 them like everybody else." But she supports her church's position that marriage is between a man and a woman.

Date admitted: ________________

I, on the other hand, opposed Prop. 8. And as I wrote more than once, I think organized Christian religion reached new levels of hypocrisy in using the Bible to preach discrimination and promote the initiative.

By: ___________________________

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A life thrown into turmoil by $100 donation for Prop. 8 - Los Angeles Times

http://articles.latimes.com/2008/dec/14/local/me-lopez14

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SAN DIEGO PEOPLE Aug 22, 1989 LOS ANGELES - Restaurateurs Urge 2-Year Delay in Smoking Ban Jun 23, 1993 SALSA, CHIPS AND TCHOTCHKES Jun 10, 2001

A life thrown into turmoil by $100 donation for Prop. 8
By STEVE LOPEZ December 14, 2008

Margie Christoffersen didn't make it very far into our conversation before she cracked. Chest heaving, tears streaming, she reached for her husband Wayne's hand and then mine, squeezing as if she'd never let go. "I've almost had a nervous breakdown. It's been the worst thing that's ever happened to me," she sobbed as curious patrons at a Farmers Market coffee shop looked on, wondering what calamity had visited this poor woman who's an honest 6 feet tall, with hair as blond as the sun.
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Well, Christoffersen was a manager at El Coyote, the Beverly Boulevard landmark restaurant that's always had throngs of customers waiting to get inside. Many of them were gay, and Christoffersen, a devout Mormon, donated $100 in support of Proposition 8, the successful November ballot initiative that banned gay marriage. She never advertised her politics or religion in the restaurant, but last month her donation showed up on lists of "for" and "against" donors. And El Coyote became a target. A boycott was organized on the Internet, with activists trashing El Coyote on restaurant review sites. Then came throngs of protesters, some of them shouting "shame on you" at customers. The police arrived in riot gear one night to quell the angry mob. The mob left, but so did the customers. Sections of the restaurant have been closed, a manager told me Friday during a very quiet lunch hour. Some of the 89 employees, many of them gay, have had their hours cut and layoffs are looming. And Christoffersen, who has taken a voluntary leave of absence, is wondering whether she'll ever again be able to work at the landmark restaurant, which opened in 1931 (at 1st and La Brea) and is owned by her 92-year-old mother. "It's been so hard," she said, breaking down again. A lot of customers saw Christoffersen as the face of the restaurant. She was the hostess who roamed from table to table with a pitcher of water, refilling glasses and schmoozing with friends. Christoffersen, raised Mormon by her late father, told me she has no problem with gay people. "I love them like everybody else." But she supports her church's position that marriage is between a man and a woman. I, on the other hand, opposed Prop. 8. And as I wrote more than once, I think organized Christian religion reached new levels of hypocrisy in using the Bible to preach discrimination and promote the initiative.

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9/14/2009 1:55 PM

A life thrown into turmoil by $100 donation for Prop. 8 (page 2) - Los An...

http://articles.latimes.com/2008/dec/14/local/me-lopez14?pg=1

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California | Local
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SAN DIEGO PEOPLE Aug 22, 1989 LOS ANGELES - Restaurateurs Urge 2-Year Delay in Smoking Ban Jun 23, 1993 SALSA, CHIPS AND TCHOTCHKES Jun 10, 2001

A life thrown into turmoil by $100 donation for Prop. 8
By STEVE LOPEZ December 14, 2008

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As for the Mormons, I have trouble taking any cues on social mores from a group whose founder and early leaders believed they were acting on directives from on high when they took enough wives -- many in their teens -- to fill every booth in the cavernous El Coyote. But I didn't like what I was hearing about the vilification of Margie Christoffersen and others in California being targeted for the crime of voting their conscience.
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"I agree with you on this," said Fred Karger. On his Californians Against Hate website, Karger has been outing Prop. 8 supporters, but he thinks Christoffersen's small personal donation didn't warrant such a backlash against El Coyote. Karger also spoke out against the resignation of a Sacramento theater director who gave $1,000 to Yes on 8 and happens to be Mormon. The focus should be on the Mormon Church, Karger said, and on people and businesses that gave hundreds of thousands of dollars to Yes on 8. He said he doesn't intend to go back to El Coyote, but he's not supporting an organized boycott. Wayne Christoffersen, who is also a manager at El Coyote, is not a Mormon, and he said he doesn't care who marries whom. But he doesn't think it's right that he and other employees at the restaurant are seeing their livelihoods threatened. Should Apple be boycotted by Yes on 8 people, he asked, simply because the computer company donated $100,000 to the No on 8 campaign? El Coyote has never been known for gourmet cuisine. But the warm, kitschy vibe and cool patio scene have always been a hit with customers who were willing to wait in long lines under the distinctive neon sign. Now business is off about 30%, Wayne said. Margie wants to blame it on the economy, because she can't deal with the alternative. But Wayne insisted the low-priced restaurant is largely recession-proof, and it's the controversy that has stemmed the flow of margaritas. Margie tried to smooth things over last month by inviting gay clients to a free lunch to talk it over, but she left in tears when asked if she would write a check to the group challenging Prop. 8. She blubbered all over again as she thought back on the last month. She has been a nightly fixture at El Coyote for two decades, walking to work from her home just a few doors away. It's been her life, she said. And she can't stand that it's been taken away. Even if she goes back to work, Wayne said, "she will never, ever be back here on a Thursday night."

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A life thrown into turmoil by $100 donation for Prop. 8
By STEVE LOPEZ December 14, 2008

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Thursdays, as tradition had it, the place was mobbed with gay customers. I had lunch at El Coyote on Thursday and the place was quiet, most tables empty. Margie was off in a dark corner of the restaurant -- at the table where Sharon Tate had her last meal -- exchanging Christmas presents with friends and her mother. I sat on the patio with Wayne and two other El Coyote managers -- Arnoldo Archila and Bill Schoeppner -- who happen to be gay.
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"We always joked around with Margie," said Schoeppner, who's been on the job 26 years. "I'm a Democrat and voted for Obama; she probably voted for McCain -- so what? If she were a bigot or a homophobe, you wouldn't have had all these gay people" working at the restaurant or eating at it. Besides, the donation was personal. "She didn't cut a check from the restaurant," added Archila, a 28-year employee. "The restaurant didn't have anything to do with it." Archila said he and other employees voted no on Prop. 8 and gave money to the legal challenge. As someone who came to the U.S. 30 years ago from El Salvador, Archila said, he's always cherished this country's right of free speech and the diversity of opinion. "You can express yourself as a citizen," said Archila. "Not everyone has to believe the same things." steve.lopez@latimes.com

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Select for FOCUS™ or Delivery THE REGION; L.A. college is sued over speech on gay marriage; Student opposed to the unions says teacher reacted improperly. Los Angeles Times February 16, 2009 Monday

Copyright 2009 Los Angeles Times All Rights Reserved Los Angeles Times February 16, 2009 Monday Home Edition SECTION: CALIFORNIA; Metro Desk; Part B; Pg. 3 LENGTH: 623 words HEADLINE: THE REGION; L.A. college is sued over speech on gay marriage; Student opposed to the unions says teacher reacted improperly. BYLINE: Gale Holland BODY:

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA Case number: 09-2292 PLTF/DEFT EXHIBIT NO. DIX2533 Date admitted: ________________ By: ___________________________

A classroom dispute at Los Angeles City College in the emotional aftermath of Proposition 8 has given rise to a lawsuit testing the balance between 1st Amendment rights and school codes on offensive speech. Student Jonathan Lopez says his professor called him a "fascist bastard" and refused to let him finish his speech against same-sex marriage during a public speaking class last November, weeks after California voters approved the ban on such unions. When Lopez tried to find out his mark for the speech, the professor, John Matteson, allegedly told him to "ask God what your grade is," the suit says. Lopez also said the teacher threatened to have him expelled when he complained to higher-ups. In addition to financial damages, the suit, filed last week in U.S. District Court in Los Angeles, seeks to strike down a sexual harassment code barring students from uttering "offensive" statements. Jean-Paul Jassy, a 1st Amendment lawyer in Los Angeles, said a number of cases have explored the tension between offensive speech and the expression of religious views. Often, he said, the decision depends on the specifics of the situation. "Free speech really thrives when people are going back and forth, disagreeing sometimes and sometimes finding things each other says offensive, but there are limits, particularly in a school setting," Jassy said after reviewing the lawsuit. Lopez, a Los Angeles resident working toward an associate of arts degree, is described in the suit as a Christian who considers it a religious duty to share his beliefs, particularly with other students. He declined to comment. Matteson could not be reached. Lopez is represented by the Alliance Defense Fund, a Christian legal organization based in Scottsdale, Ariz., and co-founded by evangelical leader James Dobson of Focus on the Family. The group also advised proponents of Proposition 8 and sued, unsuccessfully, to stop the release of the names and addresses of donors, who said they had been harassed during the weeks of demonstrations that followed the measure's passage. Alliance staff counsel David J. Hacker said Lopez was a victim of religious discrimination. "He was expressing his faith during an open-ended assignment, but when the professor disagreed with some minor things he mentioned, the professor shut him down," Hacker said. "Basically, colleges and universities should give Christian students the same rights to free expression as other students." Hacker said Alliance filed a similar suit in 2006 against Missouri State University over the school's attempt to discipline a Christian social-work student who refused to support adoptions by same-sex couples. The college settled the suit by, among other things, ordering an external review of the social-work program, Hacker said. The Los Angeles Community College District's offices were closed Friday for the Presidents Day holiday, and the general counsel,

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Camille A. Goulet, could not be reached. But in a letter to Alliance, the district said it deemed Lopez's complaint "extremely serious in nature" and had launched a private disciplinary process. In the letter, Dean Allison Jones also said that two students had been "deeply offended" by Lopez's address, one of whom stated that "this student should have to pay some price for preaching hate in the classroom." Hacker said the district's response was inadequate. "What they didn't do was ensure this wouldn't happen to other students," he said. "The dean accused Jonathan of offending other students." The suit names the Los Angeles Community College District, which operates nine campuses including L.A. City College; its board of trustees; Matteson; and various administrators. Lopez is asking for a jury trial. -gale.holland@latimes.com LOAD-DATE: February 16, 2009

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EXHIBIT 47

What Happens If You're on Gay Rights' 'Enemies List' -- Printout -- TIME

http://www.time.com/time/printout/0,8816,1859323,00.html

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Saturday, Nov. 15, 2008

What Happens If You're on Gay Rights' 'Enemies List'
By Alison Stateman / Los Angeles

Ever since a slim majority outlawed gay marriage in California, opponents have waged national protests and petitions, urging the judicial system to reconsider the results of the Nov. 4 referendum. (Proposition 8 overturned an earlier decision by the California Supreme Court that legalized same-sex marriage.) While the court weighs whether or not to get back into the fray, the civil unrest ignited by the ban shows no sign of abating. A national protest against Prop. 8 organized by JoinTheImpact.com is scheduled for today. The Church of Jesus Christ of Latter-day Saints, which opponents say donated more than $20 million to the Yes on 8 campaign, has already become a focus of protests, with demonstrators gathered around Mormon temples not only in California but across the country. The Mormon Church is not the only group being singled out for criticism. African Americans, 70% of whom voted yes on Prop. 8, according to a CNN exit poll, have become a target. According to eyewitness reports published on the Internet, racial epithets have been used against African Americans at protests in California — with some even directed at blacks who are fighting to repeal Prop. 8. Said Evan Wolfson, executive director of nonprofit group Freedom to Marry: "In any fight, there will be people who say things they shouldn't say, but that shouldn't divert attention from what the vast majority are saying against this, that it's a terrible injustice." (See the Top 10 ballot measures.) In addition to the protests, gay rights activists have begun publishing lists online exposing individuals and organizations that have donated money in support of Prop. 8. On AntiGayBlacklist.com, individuals who gave money toward Prop. 8 are publicized, and readers are urged not to patronize their businesses or services. The list of donors was culled from data on ElectionTrack.com, which follows all contributions of $1,000 and more and all contributions of more than $100 given before Oct. 17. Dentists, accountants, veterinarians and the like who gave a few thousand dollars to the cause are listed alongside major donors like the Container Supply Company Inc. of Garden Grove, which gave $250,000. "Anyone who steps into a political fight aimed at taking away fundamental rights from fellow citizens opens themselves DISTRICT COURT UNITED STATESup to criticism," said Wolfson. "The First Amendment gives them the right of freedom of NORTHERN DISTRICT OF speech and to support political views, but people also have the right to criticize them." CALIFORNIA Even before the Case number: 09-2292 passage of Prop. 8, the group Californians Against Hate compiled and published a "dishonor roll" of individuals (and their company affiliations) who gave $5,000 or more in support of the
PLTF/DEFT EXHIBIT NO. DIX2531 measure. Phone numbe rs and websites were added, along with commentary about some of the larger Date admitted: ________________

donors, all public information obtained through the California secretary of state's office. "My goal was to make it socially unacceptable to give huge amounts of money to take away the rights of one particular

group, a minority group," says Fred Karger, a retired political consultant and founder of Californians By: ___________________________

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9/14/2009 3:12 PM

What Happens If You're on Gay Rights' 'Enemies List' -- Printout -- TIME

http://www.time.com/time/printout/0,8816,1859323,00.html

Case: 11-17255

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Saturday, Nov. 15, 2008

What Happens If You're on Gay Rights' 'Enemies List'
By Alison Stateman / Los Angeles

Ever since a slim majority outlawed gay marriage in California, opponents have waged national protests and petitions, urging the judicial system to reconsider the results of the Nov. 4 referendum. (Proposition 8 overturned an earlier decision by the California Supreme Court that legalized same-sex marriage.) While the court weighs whether or not to get back into the fray, the civil unrest ignited by the ban shows no sign of abating. A national protest against Prop. 8 organized by JoinTheImpact.com is scheduled for today. The Church of Jesus Christ of Latter-day Saints, which opponents say donated more than $20 million to the Yes on 8 campaign, has already become a focus of protests, with demonstrators gathered around Mormon temples not only in California but across the country. The Mormon Church is not the only group being singled out for criticism. African Americans, 70% of whom voted yes on Prop. 8, according to a CNN exit poll, have become a target. According to eyewitness reports published on the Internet, racial epithets have been used against African Americans at protests in California — with some even directed at blacks who are fighting to repeal Prop. 8. Said Evan Wolfson, executive director of nonprofit group Freedom to Marry: "In any fight, there will be people who say things they shouldn't say, but that shouldn't divert attention from what the vast majority are saying against this, that it's a terrible injustice." (See the Top 10 ballot measures.) In addition to the protests, gay rights activists have begun publishing lists online exposing individuals and organizations that have donated money in support of Prop. 8. On AntiGayBlacklist.com, individuals who gave money toward Prop. 8 are publicized, and readers are urged not to patronize their businesses or services. The list of donors was culled from data on ElectionTrack.com, which follows all contributions of $1,000 and more and all contributions of more than $100 given before Oct. 17. Dentists, accountants, veterinarians and the like who gave a few thousand dollars to the cause are listed alongside major donors like the Container Supply Company Inc. of Garden Grove, which gave $250,000. "Anyone who steps into a political fight aimed at taking away fundamental rights from fellow citizens opens themselves up to criticism," said Wolfson. "The First Amendment gives them the right of freedom of speech and to support political views, but people also have the right to criticize them." Even before the passage of Prop. 8, the group Californians Against Hate compiled and published a "dishonor roll" of individuals (and their company affiliations) who gave $5,000 or more in support of the measure. Phone numbers and websites were added, along with commentary about some of the larger donors, all public information obtained through the California secretary of state's office. "My goal was to make it socially unacceptable to give huge amounts of money to take away the rights of one particular group, a minority group," says Fred Karger, a retired political consultant and founder of Californians

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9/14/2009 3:12 PM

What Happens If You're on Gay Rights' 'Enemies List' -- Printout -- TIME

http://www.time.com/time/printout/0,8816,1859323,00.html

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Against Hate. "I wanted to make the public aware of who these people are and how much they're giving, and then they could make a decision as to whether or not they want to patronize their businesses." The negative publicity is having an effect on both companies and individuals. Scott Eckern, artistic director of the California Musical Theatre in Sacramento, whose $1,000 donation was listed on ElectionTrack, chose to resign from his post this week to protect the theater from public criticism. Karger says a "soft boycott" his group had started against Bolthouse Farms — which gave $100,000 to Prop. 8 — was dropped after he reached a settlement with the company. Bolthouse Farms was to give an equal amount of money to gay rights political causes. The amount ultimately equaled $110,000. Meanwhile, lists of donors to Prop. 8, once trumpeted on the Yes on 8 website, have been taken down to protect individuals from harassment. "It's really awful," says Frank Schubert, campaign manager for Yes on 8. "No matter what you think of Proposition 8, we ought to respect people's right to participate in the political process. It strikes me as quite ironic that a group of people who demand tolerance and who claim to be for civil rights are so willing to be intolerant and trample on other people's civil rights." See TIME's Pictures of the Week. See the Cartoons of the Week.
Click to Print

Find this article at: http://www.time.com/time/nation/article/0,8599,1859323,00.html

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BEFORE THE HONORABLE JAMES WARE, JUDGE -------------------------------- ) ) KRISTIN M. PERRY, ) SANDRA B. STIER, PAUL T. KATAMI ) and JEFFREY J. ZARRILLO, ) ) Plaintiffs, ) ) v. ) ) EDMUND G. BROWN, JR., in his ) official capacity as Governor ) of California; KAMALA D. HARRIS, ) in her official capacity as ) Attorney General of California; ) MARK B. 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 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. ) ) ---------------------------------)

No. C 09-2292 JW

San Francisco, California Monday, August 29 2011 (62 pages)

TRANSCRIPT OF PROCEEDINGS 24 25 Connie Kuhl, Certified Realtime Reporter Official Reporter - USDC (415) 431-2020

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witness looked from the transcript.

That is the flimsiest As I was

argument I could have imagined Mr. Thompson making. going to show, Mr. Blankenhorn is not shy. accessible.

He is easily

Someone read the transcript -- and in the wide It would

reporting of this case, there are the reenactments.

take literally two seconds to see Mr. Blankenhorn talk for hours on his views about same-sex marriage. compelling reason to keep this secret. Same with Dr. Miller -- Mr. Miller, their other witness. He's online. You can find him speaking at panels and These are people who speak publicly. So that's not a

discussing the issues.

They're engaged in public debate. One of the things that's changed from the Supreme Court's ruling is the Court decided the case called Doe vs. Reed, which the City cited. And Justice Scalia, who joined the

stay order in this case, issued his opinion, the concurring opinion. There was ballot initiatives on whether people who

signed ballot initiatives to give same-sex partners benefits in Washington could remain anonymous, and Justice Scalia said, When ordinary citizens on the street enter into the public debate about issues, thrust themselves in, then they have to have the courage to be in public debate. against intimidation and harassment. And that takes me back -- I thought Mr. Thompson would have something, some -- he kept talking about their concerns. Connie Kuhl, Certified Realtime Reporter Official Reporter - USDC (415) 431-2020 There are rules

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They need to have evidence.

They need to have proof that

something happened to Mr. Blankenhorn or Dr. Miller or the other two witnesses whose testimony is posted on the Court's website. They have made absolutely no showing that there is

any reason to keep this secret. The other grounds he gave the Court were Rule 77.3. respect the rules of this court. Greatly. But Rule 77.3 And I I

Mr. Thompson has elevated beyond the First Amendment. think the Court's questions were probing this. doesn't go to access to judicial records.

That rule

The plain language

goes to broadcasting and televising or recording for the purpose of broadcasting. not his purpose. Court. Judge Walker made very clear that was

He was making a recording for use by the

Once it's a judicial record, that triggers a whole new The Supreme Court don't confront

set of legal principles. these issues.

We didn't argue in the Supreme Court that we had a First Amendment right -- or that anyone did -- to access to the recordings over a year after the fact. different issue. That's a completely The courts have

And Mr. Thompson's right:

not held that there's a First Amendment right to televise yet -- at least, this court hasn't. But this court, the Ninth Circuit, the Supreme Court, have said there's a First Amendment and common law right of access to judicial records. The common law right Mr. Thompson

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suggests only applies to evidence.

That's incorrect.

The --

both rights apply to all records that relate to the decisions of the Court and records that the court will allow: Briefs,

video, exhibits, transcripts, everything -- unless there's a compelling reason, and there has to be narrow tailoring. Mr. Thompson does not mention anything, any basis for keeping the testimony of our witnesses secret, or of the legal arguments. They didn't object from -- the Ninth Circuit So First

broadcast the arguments of this case on appeal.

Amendment arguments of this type have to be much more precise and have to make a showing as to each piece of the record that must be kept secret. And I'll finish with two points, your Honor: On this question of whether there were reliance -- and again, there's no evidence of any reliance whatsoever on anything -- but the Foltz case that has been cited and Ms. Van Aken mentioned -- it's at Page 1138 -- State Farm was arguing that the protective order, the blanket protective order in that case had caused them to rely on documents that they produced and that were then made part of the summary judgment record. And the Ninth Circuit said, Because the protective

order itself did not have the particularized showing that was necessary to justify sealing, that was not a legitimate reliance in interest. It's the same thing here. Connie Kuhl, Certified Realtime Reporter Official Reporter - USDC (415) 431-2020