Ninth Circuit Court of Appeals Decision Protects First Amendment Rights of Privacy

Ninth Circuit Court of Appeals Decision Protects First Amendment Rights of Privacy

In a huge victory last Friday for Proposition 8 supporters, a three-judge panel of the U.S. Court of Appeal’s Ninth Circuit unanimously ruled that proponents of same-sex marriage may not access the Yes on 8 campaign’s internal communications, reversing a district court’s order.  The Perry v. Schwarzenegger trial against Prop 8 is scheduled to begin on January 11, 2010.

The decision came in response to a pair of decisions by U.S. District Court Chief Judge Vaughn Walker, who had earlier overruled the objections of the Proposition 8 Legal Defense Fund. Until reversed by the appellate court, the campaign was under order to surrender to opposing attorneys a significant amount of e-mails, strategy memos and other private communications exchanged between the ProtectMarriage.com – Yes on 8 campaign’s leaders and vendors.

In the 38-page ruling, the appellate court agreed with Prop 8’s legal team, stating that Judge Walker’s orders violated First Amendment rights of political campaigns to protect internal exchanges from public review.  In rare agreement, the American Civil Liberties Union (ACLU) of Northern California sided with the Prop 8 Legal Defense Fund – defendant-intervenor in the case – writing an amicus brief of appeal to the circuit court.

The plaintiffs’ attorneys sought to obtain internal documents from the Prop 8 proponents in an attempt to find evidence that Prop 8’s passage was “the result of disapproval or animus against a politically unpopular group.” However, the Ninth Circuit Court of Appeal ruled that such disclosure is a step too far.  Following are excerpts of the ninth circuit’s decision, written by Judge Raymond Fisher on behalf of the three-judge panel:

Where, as here, discovery would have the practical effect of discouraging the exercise of First Amendment associational rights, the party seeking discovery must demonstrate a need for the information sufficiently compelling to outweigh the impact on those rights. Plaintiffs have not on the existing record carried that burden in this case.

“Disclosure of internal campaign information can have a deterrent effect on the free flow of information within campaigns…Implicit in the right to associate with others to advance one’s shared political beliefs is the right to exchange ideas and formulate strategy and messages, and do so in private.”

Andy Pugno, General Counsel for ProtectMarriage.com, said the ruling proved that Proposition 8’s leadership was correct in fighting to protect the identities of prominent backers and the campaign’s winning strategy.

“It’s a fundamental feature of our system that citizens have a right to participate in campaigns without later being put on trial for their political beliefs,” Pugno said.

He also said the campaign would furnish the other side with literature and appeals that were sent to voters, “but we’ve drawn the line with internal discussions and strategizing.”

Chief Judge Walker will hear the case in his San Francisco courtroom. Both sides have filed hundreds of documents with the court outlining their respective arguments for and against Proposition 8, which was approved by California’s voters in November 2008, placing the traditional definition of one-man, one-woman marriage into the state’s constitution (Article 1, Section 7.5).