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Protectmarriage.com v. Bowen

January 30, 2009

PROTECTMARRIAGE.COM, ET AL., PLAINTIFFS,
v.
DEBRA BOWEN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

MEMORANDUM AND ORDER

ProtectMarriage.com - Yes on 8, a Project of California Renewal ("ProtectMarriage.com"), National Organization for Marriage, - Yes on 8, Sponsored by National Organization for Marriage ("NOM-California"), and John Doe #1, an individual, and as representative of the Class of Major Donors ("Major Donors") (collectively "Plaintiffs"), each committees under California election law, filed the current action challenging California's statutory requirement that they disclose the names and other personal information of those contributors of $100 or more. Presently before the Court are Plaintiffs' Motions for Preliminary Injunction and Protective Order.

Plaintiffs ask that this Court: 1) enjoin Defendants from enforcing the semiannual reporting requirements under California Government Code § 84200; 2) enjoin Defendants from commencing criminal or civil actions for failing to comply with those reporting requirements; and 3) enjoin Defendants from both publishing reports or making available prior reports or campaign statements filed by Plaintiffs pursuant to California's Political Reform Act of 1974, Cal. Gov. Code § 81000 et seq. ("PRA"). Hearing on the matter was held on January 29, 2009, with representatives for all parties present. For the following reasons, Plaintiffs' Motion for Preliminary Injunction is denied and the Protective Order already in place is extended.

BACKGROUND

On November 4, 2008, the citizens of California adopted a ballot measure, Proposition 8, that changed the California Constitution such that marriage would only thereafter exist "between a man and a woman." Plaintiffs are primarily formed ballot committees under the PRA and were established specifically to support the passage of Proposition 8.

The PRA requires committees such as Plaintiffs to report detailed information regarding their contributors. Specifically, Plaintiffs are required to file semiannual reports including the name, street address, occupation, name of employer, or if self-employed, the name of the business, the date and amount received during the period covered by the statement and the cumulative amount of contributions. Cal. Gov. Code §§ 84200, 84211(f).

This information is then available, inter alia, on the website of the Secretary of State. Additionally, opponents of Proposition 8 have reproduced such information on a variety of their own websites and have also included other publicly-available personal information such as telephone numbers. At least one such website provides contributor information via an interactive map detailing the contributors' address, occupation, and contribution amount. See Declaration of Sarah E. Troupis (Second) ("Second Troupis Decl."), 2:6-9.*fn1

Plaintiffs allege that, as a consequence of their support of Proposition 8, their contributors have been subject to threats, reprisals, and harassment. Plaintiffs submitted numerous articles elaborating various death threats, physical violence, and threats of violence directed against Proposition 8 supporters, as well as acts of vandalism, protests, and boycotts. See Declaration of Sarah E. Troupis ("First Troupis Decl.").

Specifically, Plaintiffs provided evidence that Fresno Mayor Alan Autry and Pastor Jim Franklin, of Fresno's Cornerstone Church, both supporters of Proposition 8, received a death threat. Id., Exh. C. That threat stated in part:

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. It's a blessing that you won't be our Mayor for much longer.

...

Anybody who has a YES ON PROP 8 sign or banner in fron [sic] of their house or bumper sticker on the car in Fresno is in danger of being shot or firebombed. Fresno is not safe for anyone who supports Prop 8. I've also got a little surprise for Pasor [sic] Franklin and his congregation of lowlife's [sic] in the coming future. Keep letting him preach hate and he'll be sorry. He will be meeting his maker sooner than expected. Take this as a warning or anyway you want, but believe it. If you thought 9/11 was bad, you haven't seen anything yet. [Expletive] Fresno and the homophobic idiots who live there. Mark my words.

Id., Exh. E. Pastor Franklin's home, church and church office were also "egged." Id.

Additionally, Plaintiffs provided several articles stating that, in November, a small group of evangelical Christians, known to frequent San Francisco's Castro District on a weekly basis to pray, sing hymns, and attempt to convert homosexuals to a "straight lifestyle," were the subject of backlash from opponents of Proposition 8. Id., Exh. F, G. One of the articles further reported that opponents of the measure interrupted church services in Michigan and that two Mormon temples and one Knights of Columbus headquarters received envelopes containing white powder. Id., Exhs. F, I.

In early November, fifteen people were arrested while attending a protest against Proposition 8 in Long Beach. Id., Exh. K. Despite police statements that the event was a "great success considering the number of people who attended," at the end of the event approximately 100 individuals blocked traffic, refused to leave and then allegedly attempted to incite a riot. Id. Plaintiffs documented additional protests and boycotts as well. Id., Exhs., L-N.

Furthermore, several individuals have allegedly been forced to resign from their jobs amidst criticism over their monetary support of the ballot measure. See id., Exh. N (artistic director for the California Musical Theatre donated $1,000 to the "Yes on 8" campaign and subsequently resigned), AD (manager of El Coyote restaurant took a voluntary leave of absence after reports of her $100 donation to support Proposition 8 led to boycotts and protestors at the establishment owned by her mother), AH (director of Los Angeles Film Festival resigned in the wake of criticism over the $1500 he contributed to Proposition 8).

There have also been scattered reports of the theft of "Yes on 8" signs, vandalism of both residential and commercial buildings, and vandalism of church property, including one instance in which opponents of Proposition 8 apparently arranged "Yes on 8" signs in the form of a swastika on church grounds. Id., Exhs. H, Q, S-Z.

Finally, Plaintiffs filed anonymous declarations from several individuals who allege to have suffered personal repercussions because of their support of Proposition 8:

Declaration of John Doe #1

John Doe #1 donated funds to ProtectMarriage.com, placed a yard sign in front of his home, and made phone calls supporting Proposition 8 on behalf of a church group. He was required to list the name of his business when he contributed to ProtectMarriage.com, and, consequently, in October, someone papered the cars in his parking lot with flyers referencing his support for Proposition 8 and the amount of his contribution. His business has since been targeted by numerous boycotts, several orchestrated through Facebook. At one point, someone paid for a sponsored link on Google so that a search for John Doe #1's store resulted in a website referencing his support for Proposition 8 and urging a boycott.

Additionally, several negative reviews of his business were posted on Yelp.com referencing his donation to Plaintiff. Other websites have posted similar reviews.

John Doe #1's business has twice been picketed and, in November, opponents of Proposition 8 allegedly orchestrated a march intended to culminate in further picketing of John Doe #1's business.

According to John Doe #1, the protesters have become quite aggressive and he has received numerous letters and hundreds of emails condemning his support of the Proposition. Approximately 30-40 people have frequented his business to express their displeasure with his support of the ballot initiative. John Doe #1 eventually became concerned that opponents of Proposition 8 would tamper with his products so he installed sixteen additional security cameras. John Doe #1 contends that he will not contribute in the future and does not believe his business should suffer repercussions because of his personal donation. Declaration of John Doe #2

John Doe #2 made two donations to ProtectMarriage.com and posted a "Yes on 8" bumper-sticker on his car. Subsequently, in November, someone distributed a flyer, in the town of his residence, labeling him a bigot. Additionally, the flyer listed his religious affiliation and the dollar amount of his contributions. According to John Doe #2, no one but his family was aware of his financial contribution, so he believes the information must have derived from public disclosure by the State. John Doe #2 also claims that he will be unlikely to contribute to similar causes in the future.

Declaration of John Doe #3

John Doe #3 is a pastor at a Lutheran Church. Prior to the passage of Proposition 8, he informed his congregation that the Bible supports marriage between one man and one woman. He further stated that the congregation should vote accordingly.

Also prior to the passage of Proposition 8, an individual placed a "Yes on 8" sign on church property. In November, someone used the sign and a heavy object to break a large window in the church building. Declaration of John Doe #4

John Doe #4, an attorney who is the sole shareholder in his firm, donated funds to NOM-California.

In support of Proposition 8, John Doe #4 wrote articles supporting Proposition 8 and conducted lectures to local groups in support of the initiative.

He also held a fundraiser at his home to support the ProtectMarriage.com - Yes on 8 campaign. A group of protesters conducted a demonstration at the entrance to his community and attempted to hand flyers to guests as they passed through the gate to the neighborhood.

Over the course of November 13-16, John Doe #4 received approximately 15-20 harassing emails. One email stated, "hello propogators & litigators burn in hell." Exh. B. Another stated, "Congratulations. For your support of prop 8, you have won our tampon of the year award. Please contact us if you would like to pick up your prize." Id. At least one message referenced the amount of John Doe #4's contributions and the amount of an additional short-term loan John Doe #4 had provided to ProtectMarriage.com.

Finally, John Doe #4's name, business and the amount he donated were posted on the website www.californiansagainsthate.org.

Declaration of John Doe #5

John Doe #5 contributed funds to ProtectMarriage.com. In November, John Doe #5 received an email suggesting that his company's image would be damaged as a result of his support of Proposition 8. John Doe #5 now feels threatened and uneasy knowing that his company could be targeted.

Declaration of John Doe #6

John Doe #6 donated funds to ProtectMarriage.com. He did not engage in any other public support of the initiative. His name and the amount of his donation was listed on www.californiansagainsthate.com. At the end of November, he received a postcard allegedly insulting him for supporting the ballot measure.

The postcard was typed and stated in part, "We just hope you are proud of your participation in this Great Crusade. Just think of how you have contributed to the economy with the money you donated! It doesn't matter that there are thousands of worthwhile charities that could have used those funds to feed starving people, clothe the homeless, and find cures for cancer and other life-threatening diseases. You must be so proud!"

Declaration of John Doe #7

John Doe #7 is the senior pastor of a church and donated funds to ProtectMarriage.com. His family members displayed bumper stickers on their cars and displayed yard signs in front of their house. John Doe #7's church served as a distribution center for the petitions initially circulated in support of the Proposition. The church also distributed yard signs and bumper stickers. Additionally, members of the church telephoned approximately 275 people on behalf of ProtectMarriage.com.

John Doe #7 received one phone call at the church stating that if he was against gay marriage, he should equally be against divorce. Twice, the "Yes on 8" bumper stickers were ripped off of his wife's car at her place of employment. One of these times, an anti-Proposition 8 note was left on the windshield. The typed note stated, "Why would you want to deprive others of fundamental human rights? What if a close friend, family member or co-worker was gay and wanted to get married? Wouldn't you want to support the love they have for their partner and want them to have the same rights as you and others? Please re-think your position. There are so many more important issues in this world that need our attention rather than gay marriage. We need to learn tolerance, acceptance and love of each other. PLEASE VOTE NO ON PROP. 8." Exh.

A. Thereafter, he placed bumper stickers inside of the car windows with tape so that they could not be removed.

John Doe #8

John Doe #8 contributed funds to ProtectMarriage.com, displayed a bumper sticker on his car, and placed a yard sign in his front yard. John Doe #8 also attended numerous rallies, three press conferences, and spoke at a number of churches in Los Angeles, Orange County, and San Diego in support of Proposition 8. Additionally, he participated in panel discussions involving same-sex marriage. Finally, John Doe #8 attended an election night gathering at which he was photographed. That photograph was published in at least one periodical and possibly in numerous others.

John Doe #8's yard sign was twice stolen and destroyed. After his photograph was published, he began receiving harassing letters, e-mails and at least one phone call at his workplace. One such message stated, "Jesus doesn't love you! He will punish you in hell for voting to deny a minority the same equal rights the rest of us have.

You're as bad as the racist white people who used to enjoy banning black people the same rights as them. The rest of the world is disgusted by your actions. Best start rethinking your position NOW!" Exh. B. He has also received harassing messages on his MySpace and Facebook accounts.

As a result, John Doe #8 will be reluctant to contribute to similar causes in the future. John Doe #9

John Doe #9 attended an election night gathering for supporters of Proposition 8. A photograph taken of him that night was published in at least one periodical and may have appeared in numerous others.

Since publication of this picture, John Doe #9 began receiving harassing messages on his MySpace and Facebook accounts. Many of these contained profanity and one threatened him with assault.

In November, John Doe #9 arrived home to a harassing message on his answering machine. A man, in a mocking tone, stated that the people in the picture with him were "Nazis" and against human rights. Additionally, he stated, "I certainly hope that someday somebody takes away something from you and then you'll realize what a [expletive] [expletive] you are."

John Doe #9 also received several harassing emails and phone calls at work. Some of the messages stated that the individuals knew where he worked and that they were going to attempt to have him fired. Additionally, other departments and employees received an email stating that he came "from a long line of bigots and racists."

In November, in response to the above incidents, John Doe #9 filed a police report, began coordinating with security to ensure his safety at work, and changed his home phone number.

As a result, John Doe #9 would think carefully about the possible consequences of donating to or publicly supporting a similar cause in the future.

Plaintiffs initiated this action because they are statutorily required to again file semiannual reports on January 31, 2009.*fn2 Plaintiffs contend that their contributors and the Major Donors will suffer irreparable harm in the form of threats, harassment and reprisals if Plaintiffs are required to adhere to the PRA's mandates.

Accordingly, Plaintiffs seek injunctive relief arguing first that they are "entitled to an as-applied blanket exemption from California's compelled disclosure provisions because Plaintiffs have demonstrated a reasonable probability that compelled disclosure will result in threats, harassment, and reprisals because of their support for Proposition 8." Plaintiffs' Memorandum in Support of Motion for Temporary Restraining Order ("Motion"), 5:21-24. Additionally, Plaintiffs contend that "California's threshold for compelled disclosure of contributors is not narrowly tailored to serve a compelling government interest in violation of the First Amendment to the United States Constitution." Id., 6:1-3. Namely, Plaintiffs challenge the $100 threshold after which individual contributors must be disclosed. Finally, according to Plaintiffs, "any ballot measure regulation that requires compelled disclosure regarding ballot measure activity after the election has occurred in unconstitutional because it cannot logically be related to a compelling state interest." Id., 6:12-14.

STANDARD

A preliminary injunction is an extraordinary remedy, and Plaintiffs have the burden of proving the propriety of such a remedy by clear and convincing evidence. See Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 442 (1974). In order to warrant issuance of such relief, Plaintiffs must demonstrate either: 1) a combination of probable success on the merits and a likelihood of irreparable injury; or 2) that serious questions are raised and the balance of hardships tips sharply in favor of granting the requested injunction. Stuhlbarg Int'l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d 832, 839-40 (9th Cir. 2001); Winter v. Natural Resources Defense Council, 129 S.Ct. 365, 375 (2008). (likelihood rather than possibility of success on the merits required for issuance of preliminary injunctive relief).

These two alternatives represent two points on a sliding scale, pursuant to which the required degree of irreparable harm increases or decreases in inverse correlation to the probability of success on the merits. Roe v. Anderson, 134 F.3d 1400, 1402 (9th Cir. 1998); United States v. Nutri-cology, Inc., 982 F.2d 394, 396 (9th Cir. 1992). Under either formulation of the test for granting injunctive relief, however, Plaintiffs must demonstrate a significant threat of irreparable injury. Oakland Tribune, Inc. v. Chronicle Publ. Co., 762 F.2d 1374 (9th Cir. 1985).

ANALYSIS

I. PRELIMINARY ...


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