Those who made contributions in support of Proposition 8, a successful ballot measure which defines marriage as only between a man and a woman, asked a federal court to exempt them from state campaign disclosure laws. Under California law, those who give more than $100 to ballot measure campaigns must disclose their identities. Donor information remains available on the Secretary of State's website. Contributors claimed that they fell within an exception to such laws once created by the United States Supreme Court for members of the Socialist Workers Party and the National Association for the Advancement of Colored People. The exception created by the Court was based on significant harassment of a minority group.
United States District Court Judge Morrison England Jr. denied the contributors' request. Judge England found that the Socialist Workers Party was a small group and that belonging to the NAACP in the early 1950's (when the Court made its ruling) was life threateningly dangerous. By contrast, proponents of Proposition 8 are not a small, long-discriminated against minority group. Instead, if the 2008 election is any gauge, those supporting Proposition 8 include the majority of members of the California electorate.
There is little doubt that some people who gave money in support of Proposition 8 were taunted and harassed--declarations by those bringing the suit provided that yard lines were taken, harassing phone calls were received, and protests and boycotts of businesses were waged. There is little doubt that such behavior was made possible or easier because the identities of those making donations in support of Proposition 8 were disclosed. However, Judge England found that the harassment proponents of Proposition 8 suffered did not rise to the level of that suffered by members of the Socialist Workers Party and the NAACP.
Democracy can sometimes be unpleasant. People disagree. They fight, they argue, and sometimes, they harass. Sometimes it is productive, sometime it is not. Sometimes we find our fellow voters and the causes they support or oppose -- with time or money -- to be repugnant. But our First Amendment stands as a protection for free discourse in a free society, particularly when political speech is involved. When behavior crosses the line, criminal prosecution is possible.
Judge England's ruling will no doubt be appealed to a higher court. The issue could even wind its way back to the United States Supreme Court.
Jessica Levinson writes about the intersection of law and government every Monday. She is a Visiting Professor at Loyola Law School.