Ninth Circuit Panel Rejects Attempt to Discover Internal Prop. 8 Campaign Documents

The opinion, released yesterday, is Perry v. Schwarzenegger. Some excerpts:

Plaintiffs served a request for production of documents on [the Proponents of Prop. 8], seeking, among other things, production of Proponents’ internal campaign communications relating to campaign strategy and advertising. Proponents objected to disclosure of the documents as barred by the First Amendment…. [T]he district court rejected Proponents’ claim of First Amendment privilege….

We reverse. The freedom to associate with others for the common advancement of political beliefs and ideas lies at the heart of the First Amendment. 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….

The First Amendment privilege [of confidential association] … has never been limited to the disclosure of identities of rank-and-file members [which is basically how the district court interpreted it to be limited -EV]…. The existence of a prima facie case turns not on the type of information sought, but on whether disclosure of the information will have a deterrent effect on the exercise of protected activities. We have little difficulty concluding that disclosure of internal campaign communications can have such an effect on the exercise of protected activities.

First, the disclosure of such information can have a deterrent effect on participation in campaigns. There is no question that participation in campaigns is a protected activity. Compelled disclosure of internal campaign information can deter that participation.

Second, 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 to do so in private. Compelling disclosure of internal campaign communications can chill the exercise of these rights….

In this case, Proponents have made “a ‘prima facie showing of arguable first amendment infringement’” by demonstrating “consequences which objectively suggest an impact on, or ‘chilling’ of, … associational rights.” Mark Jansson, a member
of’s ad hoc executive committee, stated:

I can unequivocally state that if the personal, non-public communications I have had regarding this ballot initiative — communications that expressed my personal political and moral views — are ordered to be disclosed through discovery in this matter, it will drastically alter how I communicate in the future…. I will be less willing to engage in such communications knowing that my private thoughts on how to petition the government and my private political and moral views may be disclosed simply because of my involvement in a ballot initiative campaign. I also would have to seriously consider whether to even become an official proponent again.

Although the Jansson declaration is lacking in particularity, it is consistent with the self-evident conclusion that important First Amendment interests are implicated by the plaintiffs’ discovery request. The declaration creates a reasonable inference that disclosure would have the practical effects of discouraging political association and inhibiting internal campaign communications that are essential to effective association and would have to seriously consider whether to even become an official proponent again.

There’s a good deal more in the opinion, and if you’re interested you should read it yourself, starting with PDF p. 23. And I think the opinion’s arguments are quite persuasive, especially given the Court’s longstanding recognition of a presumptive First Amendment right to confidential association, at least where compelled disclosure of who belongs to a group is involved.

But the trouble is that there are Supreme Court cases, which the Ninth Circuit opinion doesn’t cite, that seem to point in the opposite direction: EEOC v. University of Pennsylvania and Herbert v. Lando.

In EEOC v. University of Pennsylvania, the university claimed a First Amendment privilege against disclosure of confidential tenure evaluation documents. But the Court didn’t recognize even a presumptive freedom from disclosure:

[B]y comparison with the cases in which we have found a cognizable First Amendment claim, the infringement the University complains of is extremely attenuated. To repeat, it argues that the First Amendment is infringed by disclosure of peer review materials because disclosure undermines the confidentiality which is central to the peer review process, and this in turn is central to the tenure process, which in turn is the means by which petitioner seeks to exercise its asserted academic-freedom right of choosing who will teach. To verbalize the claim is to recognize how distant the burden is from the asserted right.

Indeed, if the University’s attenuated claim were accepted, many other generally applicable laws might also be said to infringe the First Amendment. In effect, petitioner says no more than that disclosure of peer review materials makes it more difficult to acquire information regarding the “academic grounds” on which petitioner wishes to base its tenure decisions. But many laws make the exercise of First Amendment rights more difficult. For example, a university cannot claim a First Amendment violation simply because it may be subject to taxation or other government regulation, even though such regulation might deprive the university of revenue it needs to bid for professors who are contemplating working for other academic institutions or in industry. We doubt that the peer review process is any more essential in effectuating the right to determine “who may teach” than is the availability of money.

In addition to being remote and attenuated, the injury to academic freedom claimed by petitioner is also speculative. As the EEOC points out, confidentiality is not the norm in all peer review systems. Moreover, some disclosure of peer evaluations would take place even if petitioner’s “special necessity” test were adopted. Thus, the “chilling effect” petitioner fears is at most only incrementally worsened by the absence of a privilege. Finally, we are not so ready as petitioner seems to be to assume the worst about those in the academic community. Although it is possible that some evaluators may become less candid as the possibility of disclosure increases, others may simply ground their evaluations in specific examples and illustrations in order to deflect potential claims of bias or unfairness. Not all academics will hesitate to stand up and be counted when they evaluate their peers.

Likewise, in Herbert v. Lando the Court rejected a claimed privilege for conversations between journalists and editors, among other things because it was skeptical that allowing normal discovery of such conversations would indeed deter speech much:

It is also urged that frank discussion among reporters and editors will be dampened and sound editorial judgment endangered if such exchanges, oral or written, are subject to inquiry by defamation plaintiffs. We do not doubt the direct relationship between consultation and discussion on the one hand and sound decisions on the other; but whether or not there is liability for the injury, the press has an obvious interest in avoiding the infliction of harm by the publication of false information, and it is not unreasonable to expect the media to invoke whatever procedures may be practicable and useful to that end. Moreover, given exposure to liability when there is knowing or reckless error, there is even more reason to resort to prepublication precautions, such as a frank interchange of fact and opinion. Accordingly, we find it difficult to believe that error-avoiding procedures will be terminated or stifled simply because there is liability for culpable error and because the editorial process will itself be examined in the tiny percentage of instances in which error is claimed and litigation ensues….

Likewise, one other case, Branzburg v. Hayes, seemingly rejected a First Amendment privilege for journalists who don’t want to disclose the identity of a confidential source, again dismissing as constitutionally beside the point the risk that compelled disclosure of such identities would deter speech. On the other hand, many circuits have recognized such a privilege despite Branzburg, though other circuits have held that Branzburg precludes such a privilege, and the Court hasn’t stepped in to resolve the dispute.

Unfortunately, the Ninth Circuit panel doesn’t even discuss EEOC v. University of Pennsylvania and Herbert v. Lando, cases that dismissed any claimed First Amendment privilege for confidential communications. To be sure, some cases, including NAACP v. Alabama, which the panel heavily relies on, did accept such a privilege — but it’s not clear why this case is closer to NAACP v. Alabama and not EEOC v. University of Pennsylvania and Herbert v. Lando. The threat that revealing the contents of communications (as opposed to the identity of group members or contributors) will deter speech in a campaign doesn’t strike me as materially greater than the similar threat in a tenure evaluation process or a journalistic decision; in both, confidentiality may encourage candor to some extent, and the risk of disclosure may discourage it. Nor does it matter that the focus in a campaign is on political speech and in other contexts it has to do with who will teach or do research at a university, or what will be published in a newspaper. Speech in universities and in newspapers has long been as constitutionally protected as speech in political campaigns.

So maybe the Ninth Circuit panel has reached the right bottom line; maybe EEOC v. University of Pennsylvania and Herbert v. Lando are wrong; maybe there is a sound distinction between these cases; or maybe the Supreme Court’s caselaw here is hopelessly inconsistent. But I wish the panel had talked some more about the Supreme Court cases I discuss here, and in the absence of a clear distinction of those cases, it’s hard to be sure that the panel opinion is current under existing Supreme Court caselaw.