Kristin M. PERRY; Sandra B. Stier; Paul T. Katami; Jeffrey J. Zarrillo, Plaintiffs-Appellees, and City and County of San Francisco, Plaintiff-intervenor, v. Arnold SCHWARZENEGGER, in his official capacity as Governor of California; Edmund G. Brown, Jr., in his official capacity as Attorney General of California; Mark B. Horton in his official capacity as Director of the California Department of Public Health & State Registrar of Vital Statistics; Linette Scott, in her official capacity as Deputy Director of Health Information & Strategic Planning for the California Department of Public Health; Patrick O‘Connell, in his official capacity as Clerk-Recorder for the County of Alameda; Dean C. Logan, in his official capacity as Registrar-Recorder/County Clerk for the County of Los Angeles, Defendants, and Dennis Hollingsworth; Gail J. Knight; Martin F. Gutierrez; Hak-Shing William Tam; Mark A. Jansson; Protectmarriage.Com-Yes On 8, A Project of California Renewal, Defendant-intervenors-Appellants.
Nos. 09-17241, 09-17551
United States Court of Appeals, Ninth Circuit
December 11, 2009
Argued and Submitted Dec. 1, 2009. Filed Dec. 11, 2009.
591 F.3d 1126
VII. Conclusion
Having found that none of the bars to class relief raised by Respondents prevent certification of the proposed class and that the class meets the requirements of
REVERSED AND REMANDED.
Nos. 09-17241, 09-17551.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Dec. 1, 2009.
Filed Dec. 11, 2009.
Theodore J. Boutrous, Jr. (argued), Rebecca Justice Lazarus, Enrique A. Monagas, Gibson, Dunn & Crutcher LLP, Los Angeles, CA; Theodore B. Olson, Matthew D. McGill and Amir C. Tayrani, Gibson, Dunn & Crutcher LLP, Washington, DC, for Plaintiffs-Appellees.
Stephen V. Bomse, Orrick, Herrington & Sutcliffe LLP, San Francisco, CA, Allan L. Schlosser and Elizabeth O. Gill, ACLU Foundation of Northern California, for Amicus Curiae American Civil Liberties Union of Northern California.
Robert H. Tyler and Jennifer Lynn Monk, Advocates for Faith and Freedom, Murrieta, CA, for Amici Curiae Schubert Flint Public Affairs, Inc., Frank Schubert and Jeff Flint.
Before: KIM McLANE WARDLAW, RAYMOND C. FISHER and MARSHA S. BERZON, Circuit Judges.
ORDER AMENDING OPINION AND DENYING PETITION FOR REHEARING AND REHEARING EN BANC
The opinion filed December 11, 2009 is amended, and the amended opinion is filed concurrently with this Order.
The panel has voted to deny the petition for rehearing and rehearing en banc. A judge requested a vote on whether to rehear the matter en banc, and the matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration.
Appellees’ petition for rehearing and rehearing en banc, filed December 24, 2009, is DENIED.
No further petitions for rehearing will be permitted.
IT IS SO ORDERED.
AMENDED OPINION
RAYMOND C. FISHER, Circuit Judge:
Proposition 8 amended the California Constitution to provide that only marriage between a man and a woman is valid or recognized in California. Two same-sex couples filed this action in the district court alleging that Proposition 8 violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The official proponents of Proposition 8 (“Proponents“) intervened to defend the suit. Plaintiffs served a request for production of documents on Proponents, 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. In two orders, the district court rejected Proponents’ claim of First Amendment privilege. Proponents appealed both orders and, in the alternative, petitioned for a writ of mandamus
We hold that the exceptional circumstances presented by this case warrant issuance of a writ of mandamus. 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 such discovery must demonstrate a need for the information sufficient to outweigh the impact on those rights. Plaintiffs have not on the existing record carried that burden in this case. We therefore grant Proponents’ petition and direct the district court to enter an appropriate protective order consistent with this opinion.
I. BACKGROUND
In November 2008, California voters approved Proposition 8, an initiative measure providing that “[o]nly marriage between a man and a woman is valid or recognized in California.”
After the Attorney General declined to defend the constitutionality of Proposition 8, the district court granted a motion by Proponents—the official proponents of Proposition 8 and the official Proposition 8 campaign committee—to intervene as defеndants.
Plaintiffs served requests for production of documents on Proponents under
All versions of any documents that constitute communications referring to Proposition 8, between you and any third party, including, without limitation, members of the public or the media.
The parties understand this request as encompassing, among other things, Proponents’ internal campaign communications concerning strategy and messaging.
Proponents objected to the request as irrelevant, privileged under the First Amendment and unduly burdensome and filed a motion for a protective order. They argued that their internal campaign communications, including draft versions of communications never actually disseminated to the electorate at large, were privileged under the First Amendment. They offered evidence that the disclosure of internal strategy documents would burden political association rights by discouraging individuals from participating in initiative campaigns and by muting the exchange of ideas within those campaigns. They asserted that the documents plaintiffs sought were irrelevant to the issues in this case, and even if they were relevant, the First Amendment interests at stake outweighed plaintiffs’ need for the information.
In an October 1, 2009 order, the district court granted in part and denied in part Proponents’ motion for a protective order. The court denied Proponents’ claims of privilege.1 The court also determined that plaintiffs’ request was “reasonably calculated to lead to the discovery of admissible evidence” regarding voter intent, the purpоse of Proposition 8 and whether Proposition 8 advances a legitimate governmental interest. The court said that “communications between proponents and political consultants or campaign managers, even about messages contemplated but not actually disseminated, could fairly readily lead to admissible evidence illuminating the messages disseminated to voters.”2
Following the court‘s October 1 order, Proponents submitted a sample of documents potentially responsive to plaintiffs’ document request for in camera review, asserting that the documents were both irrelevant and privileged. In a November 11, 2009 order following that review, the district court again rejected Proponents’ argument that their internal campaign communications were privileged under the First Amendment:
Proponents have not ... identified any way in which the ... privilege could protect the disclosure of campaign communications or the identities of high ranking members of the campaign.... If the ... privilege identified by proponents protects anything, it is thе identities of rank-and-file volunteers and similarly situated individuals.
Applying the usual discovery standards of
Proponents appealed from the October 1 and November 11 orders and, in the alternative, petitioned for a writ of mandamus.
II. JURISDICTION
Proponents contend that we have jurisdiction on two bases. First, they assert that the district court‘s orders are appealable under the collateral order doctrine. Second, they have petitioned for issuance of a writ of mandamus.
While this appeal was pending, the Supreme Court decided Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009), holding that discovery orders denying claims of attorney-client privilege are not appealable under the collateral order doctrine. After Mohawk, it is uncertain whether the collateral order doctrine applies to discovery orders denying claims of First Amendment privilege, as we shall explain. Ultimately, we do not resolve the question here. Given the uncertainty, we have decided instead to rely on mandamus to review the district court‘s rulings. We have repeatedly exercised mandamus review when confronted with extraordinarily important questions of first impression concerning the scope of a privilege. As this case falls within that small class of extraordinary cases, we exercise our supervisory mandamus authority here.
A. Collateral Order Doctrine
We have jurisdiction to review “final decisions of the district courts.”
The first prong is easily satisfied in this case. Taken together, the October 1 and November 11 discovery orders conclusively determined the scope of the First Amendment privilege. The district court concluded that the privilege does not extend to internal campaign communications and that it is limited to the disclosure of identities of rank-and-file members and other similarly situated individuals. Furthermore, in the November 11 order, the district court conclusively determined that Proponents were required to produce 21 documents that, according to the court, were not privileged. See United States v. Griffin, 440 F.3d 1138, 1141 (9th Cir.2006) (“[T]he district court‘s order ‘conclusively determine[s] the disputed question’ whether the government is entitled to read the communicatiоns between Griffin and his wife for which the [marital communications] privilege had been claimed.“).
The second prong is also satisfied. The overall scope of the First Amendment privilege is a question of law that is entirely separate from the merits of the litigation. In theory, the application of the privilege to plaintiffs’ specific discovery requests has some overlap with merits-related issues, such as whether plaintiffs’ substantive claims are governed by strict scrutiny or rational basis review and whether plaintiffs may rely on certain types of evidence to prove that Proposition 8 was enacted for an improper purpose. We need not, and do not, delve into those questions in this appeal, however. We assume without deciding that the district
It is the third prong that poses the most difficult question. Under Mohawk, the third prong turns on whether rulings on First Amendment privilege are, as a class, effectively reviewable on appeal from final judgment—i.e., “whether delaying review until the entry of final judgment ‘would imperil a substantial public interest’ or ‘some particular value of a high order.‘” Mohawk, 130 S.Ct. at 605-06 (quoting Will v. Hallock, 546 U.S. 345, 352-53, 126 S.Ct. 952, 163 L.Ed.2d 836 (2006)). In Mohawk, the Court concluded that this prong was not satisfied with respect to the class of rulings addressing invocation of the attorney-client privilege during discovery. This was so because the typical ruling on the attorney-client privilege will involve only “the routine application of settled legal principles.” Id. at 607. Denying immediate appellate review would have no “discernible chill” because “deferring review until final judgment does not meaningfully reduce the ex ante incentives for full and frank consultations between clients and counsel.” Id. There being no discernible harm to the public interest, the remaining harm from an erroneous ruling (the harm to the individual litigant of having confidential communications disclosed) could be adequately, if imperfectly, remedied by review after final judgment: “Appellate courts can remedy the improper disclosure of privileged material in the same way they remedy a host of other erroneous evidentiary rulings: by vacating an adverse judgment and remanding for a new trial in which the protected material and its fruits are excluded from evidence.” Id.
Some of Mohawk‘s reasoning carries over to the First Amendment privilege. There are, however, several reasons the class of rulings involving the First Amendment privilege differs in ways that matter to a collateral order appeal analysis from those involving the attorney-client privilege. First, this case concerns a privilege of constitutional dimensions. The right at issue here—freedom of political association—is of a high order. The constitutional nature of the right is not dispositive of the collateral order inquiry, see, e.g., Flanagan v. United States, 465 U.S. 259, 267-68, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984), but it factors into our analysis. Second, the public interest associated with this class of cases is of greater magnitude than that in Mohawk. Compelled disclosures concerning protected First Amendment political associations have a profound chilling effect on the exercise оf political rights. See, e.g., Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 557, 83 S.Ct. 889, 9 L.Ed.2d 929 (1963) (underscoring the substantial “deterrent and ‘chilling’ effect on the free exercise of constitutionally enshrined rights of free speech, expression, and association” resulting from compelled disclosure of political associations). Third, unlike the attorney-client privilege, the First Amendment privilege is rarely invoked. Collateral review of the First Amendment privilege, therefore, does not implicate significant “institutional costs.” Mohawk, 130 S.Ct. at 608-09. Cf. id. (“Permitting parties to undertake successive, piecemeal appeals of all adverse attorney-client rulings would unduly delay the resolution of district court litigation and needlessly burden the Courts of Appeals.“). Finally, we observe that Mohawk expressly reserved whether the collateral order doctrine applies in connection with other privileges. See id. at 609 n. 4.
B. Mandamus
The exceptional circumstances presented by this case warrant exercising our jurisdiction under the All Writs Act,
“The writ of mandamus is an ‘extraordinary’ remedy limited to ‘extraordinary’ causes.” Burlington Northern & Santa Fe Ry. Co. v. U.S. Dist. Court, 408 F.3d 1142, 1146 (9th Cir.2005) (quoting Cheney, 542 U.S. at 380). In Bauman v. United States District Court, 557 F.2d 650 (9th Cir.1977), we established five guidelines to determine whether mandamus is appropriate in a given case: (1) whether the petitioner has no other means, such as a direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in any way not correctable on appeal; (3) whether the district court‘s order is clearly erroneous as a matter of law; (4) whether the district court‘s order is an oft repeated error or manifests a persistent disregard of the federal rules; and (5) whether the district court‘s order raises new and important problems or issues of first impression. Id. at 654-55. “The factors serve as guidelines, a point of departure for our analysis of the propriety of mandamus relief.” Admiral Ins. Co. v. U.S. Dist. Court, 881 F.2d 1486, 1491 (9th Cir.1989). “Not every factor need be present at once.” Burlington, 408 F.3d at 1146. “However, the absence of the third factor, clear error, is dispositive.” Id.
Mandamus is appropriate to review discovery orders “when particularly important interests are at stake.” 16 Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure § 3935.3 (2d ed.2009) (hereinafter Wright & Miller). Although “the courts of appeals cannot afford to become involved with the daily details of discovery,” we may rely on mandamus to resolve “new questions that otherwise might elude appellate review” or “to protect important or clear claims of privilege.” Id.; see Mohawk, 130 S.Ct. at 607 (“[L]itigants confronted with a particularly injurious or novel privilegе ruling have several potential avenues of review apart from collateral order appeal.... [A] party may petition the court of appeals for a writ of mandamus.“). In Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964), for example, the Supreme Court relied on mandamus to answer the novel question whether
Here, too, we are asked to address an important issue of first impression—the scope of the First Amendment privilege against compelled disclosure of internal campaign communications. Considering the Bauman factors, we conclude that this is an extraordinary case in which mandamus review is warranted.
Assuming, as we are, that no collateral order appeal is available, the first factor is present: “A discovery order ... is interlocutory and non-appealable” under
The second factor also supports mandamus. A post-judgment appeal would not provide an effective remedy, as “no such review could prevent the damage that [Proponents] allege they will suffer or afford effective relief therefrom.” In re Cement Antitrust Litig., 688 F.2d 1297, 1302 (9th Cir.1982); see Star Editorial, Inc. v. U.S. Dist. Court, 7 F.3d 856, 859 (9th Cir.1993) (“[I]f the district court erred in compelling disclosure, any damage the [newspaper] suffered would not be correctable on appeal.“); Admiral Ins., 881 F.2d at 1491 (holding that the second factor was satisfied in view of “the irreparable harm a party likely will suffer if erroneously required to disclose privileged materials or communications“). One injury to Proponents’ First Amendment rights is the disclosure itself. Regardless of whether they prevail at trial, this injury will not be remediable on appeal. See In re Cement Antitrust Litig., 688 F.2d at 1302 (“[A] post-judgment reversal on appeal could not provide a remedy for those injuries.“). If Proponents prevail at trial, vindication of their rights will be not merely delayed but alsо entirely precluded. See id. (“Moreover, whatever collateral injuries petitioners suffer will have been incurred even if they prevail fully at trial and thus have no right to appeal from the final judgment.“).
Under the second factor, we also consider the substantial costs imposed on the public interest. The district court applied an unduly narrow conception of First Amendment privilege. Under that interpretation, associations that support or oppose initiatives face the risk that they will be compelled to disclose their internal campaign communications in civil discovery. This risk applies not only to the official proponents of initiatives and referendums, but also to the myriad social, economic, religious and political organizations that publicly support or oppose ballot measures. The potential chilling effect on
The third factor, clear error, is also met. As discussed below, we are firmly convinced that the district court erred by limiting the First Amendment privilege to “the identities of rank-and-file volunteers and similarly situated individuals” and affording no greater protection to Proponents’ internal communications than the generous relevance standard of
Finally, the fifth factor weighs in favor of exercise of our supervisory mandamus authority: we are faced with the need to resolve a significant question of first impression. See, e.g., Schlagenhauf, 379 U.S. at 110-11 (finding mandamus jurisdiction appropriate where there was an issue of first impression concerning the district court‘s application of
In sum, this is an important case for exercise of our mandamus jurisdiction: adequate, alternative means of review are unavailable; the harm to Proponents and to the public interest is not correctable on appeal; the district court‘s discovery order is clearly erroneous; and it presents a significant issue of first impression that may repeatedly evade review. As in Fo
III. FIRST AMENDMENT PRIVILEGE3
A.
“Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association.” NAACP v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958); see also Roberts v. U.S. Jaycees, 468 U.S. 609, 622, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984) (“An individual‘s freedom to speak, to worship, and to petition the government for the redress of grievances could not be vigorously protected from interference by the State unless a correlative freedom to engage in group effort toward those ends were not also guaranteed.“). Thus, “[t]he First Amendment protects political association as well as political expression,” Buckley v. Valeo, 424 U.S. 1, 15, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), and the “freedom to associate with others for the common advancement of political beliefs and ideas is ... protected by the First and Fourteenth Amendments.” Kusper v. Pontikes, 414 U.S. 51, 56-57, 94 S.Ct. 303, 38 L.Ed.2d 260 (1973). “The right to associate for expressive purposеs is not, however, absolute.” Roberts, 468 U.S. at 623. “Infringements on that right may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.” Id.
The government may abridge the freedom to associate directly, or “abridgement of such rights, even though unintended, may inevitably follow from varied forms of governmental action.” NAACP, 357 U.S. at 461. Thus, the government must justify its actions not only when it imposes direct limitations on associational rights, but also when governmental action “would have the practical effect ‘of discouraging’ the exercise of constitutionally protected political rights.” Id. (quoting Am. Commc‘ns Ass‘n v. Douds, 339 U.S. 382, 393, 70 S.Ct. 674, 94 L.Ed. 925 (1950)). Such actions have a chilling effect on, and therefore infringe, the exercise of fundamental rights. Accordingly, they “must survive exacting scrutiny.” Buckley, 424 U.S. at 64.
The compelled disclosure of political associations can have just such a chilling effect. See id. (“[W]e have repeatedly found that compelled disclosure, in itself, can seriously infringe on privаcy of association and belief guaranteed by the First Amendment.“); AFL-CIO v. FEC, 333 F.3d 168, 175 (D.C.Cir.2003) (“The Supreme Court has long recognized that compelled disclosure of political affiliations and activities can impose just as substantial a burden on First Amendment rights as can direct regulation.“).4 Disclosures of
In this circuit, a claim of First Amendment privilege is subject to a two-part framework. The party asserting the privilege “must demonstrate ... a ‘prima facie showing of arguable first amendment infringement.‘” Brock v. Local 375, Plumbers Int‘l Union of Am., 860 F.2d 346, 349-50 (9th Cir.1988) (quoting United States v. Trader‘s State Bank, 695 F.2d 1132, 1133 (9th Cir.1983) (per curiam)). “This prima facie showing requires appellants to demonstrate that enforcement of the [discovery requests] will result in (1) harassment, membership withdrawal, or discouragement of new members, or (2) other consequences which objectively suggest an impact on, or ‘chilling’ of, the members’ associational rights.” Id. at 350.6 “If appellants can make the necessary prima facie showing, the evidentiary burden will then shift to the government ... [to] demonstrate that the information sought through the [discovery] is rationally related to a compelling governmental interest ... [and] the ‘least restrictive means’ of obtaining the desired information.” Id.; see also Dole v. Serv. Employees Union, AFL-CIO, Local 280, 950 F.2d 1456, 1459-61 (9th Cir.1991) (same). More specifically, the second step of the analysis is meant to make discovery that impacts First Amendment associational rights available only after careful consideration of the need for such discovery, but not necessarily to preclude it. The question is therefore whether the party seeking the discovery “has demonstrated an interest in obtaining the disclosures it seeks ... which is sufficient to justify the deterrent effect ... on the free exercise ... of [the] cоnstitutionally protected right of association.” NAACP, 357 U.S. at 463.
To implement this standard, we “balance the burdens imposed on individuals and associations against the significance of the ... interest in disclosure,” AFL-CIO v. FEC, 333 F.3d at 176, to determine whether the “interest in disclosure ... outweighs the harm,” Buckley, 424 U.S. at 72. This balanc
Before we apply these rules to the discovery at issue on this appeal, we address the district court‘s apparent conclusion that the First Amendment privilege, as a categorical matter, does not apply to the disclosure of internal campaign communications.
B.
The district court concluded that “[i]f the privilege identified by proponents protects anything, it is the identities of rank-and-file volunteers and similarly situated individuals,” and said that “Proponents have not ... identified a way in which the ... privilege could protect the disclosure of campaign communications.” The First Amendment privilege, however, has never been limited to the disclosure of identities of rank-and-file members. See, e.g., DeGregory, 383 U.S. at 828 (applying the privilege to “the views expressed and ideas advocated” at political party meetings); Dole, 950 F.2d at 1459 (applying privilege tо statements “of a highly sensitive and political character” made at union membership meetings). 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. See NAACP, 357 U.S. at 460-61; Brock, 860 F.2d at 349-50. 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. See San Francisco County Democratic Cent. Comm. v. Eu, 826 F.2d 814, 827 (9th Cir.1987) (“‘[T]he right of individuals to associate for the advancement of political beliefs’ is fundamental.“) (quoting Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968)). Compelled disclosure of internal campaign information can deter that participation. See Buckley, 424 U.S. at 68,
Second, disclosure of internal campaign information can have a deterrent effect on the free flow of information with-in 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.9 Compelling disclosure of internal campaign communications can chill the exercise of these rights.
In identifying two ways in which compelled disclosure of internal campaign communications can deter protected activities—by chilling participation and by muting the internal exchange of ideas—we do not suggest this is an exhaustive list. Disclosures of the sort challenged here could chill protected activities in other ways as well.10 We cite these two examples for
C.
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.” Brock, 860 F.2d at 349-50 (quoting Trader‘s State Bank, 695 F.2d at 1133). They presented declarations from several individuals attesting to the impact compelled disclosure would have on participation and formulation of strategy. For example, Mark Jansson, a member of ProtectMarriage.com‘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 drasticаlly 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 evidence presented by Proponents 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 expression. See Dole, 950 F.2d at 1459-61 (holding that the union satisfied its prima facie burden by submitting the declarations of two members who said they would no longer participate in union membership meetings if the disclоsure of the minutes of the meetings were permitted). A protective order limiting dissemination of this information will ameliorate but cannot eliminate these threatened harms. Proponents have therefore made a prima facie showing that disclosure could have a chilling effect on protected activities. The chilling effect is not as serious as that involved in cases such as NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), but neither is it insubstantial. See AFL-CIO v. FEC, 333 F.3d at 176 (“Although we agree that the evidence in this case is far less compelling than the evidence presented in cases involving groups whose members had been subjected to violence, economic reprisals, and police or private harassment, that difference speaks to the strength of the First Amendment interests asserted, not to their existence.“) (citations omitted).
The Proponents having made a prima facie showing of infringement, the evidentiary burden shifts to the plaintiffs to demonstrate a sufficient need for the discovery to counterbalance that infringement. The district court did not apply this heightened relevance test. Rather, having detеrmined that the First Amendment privilege does not apply to the disclosure of internal campaign communications except to protect the identities of rank-and-file members and volunteers, the court applied the
The
In sum, although the First Amendment interests at stake here are not as weighty as in some of the membership list cases, and harms can be mitigated in part by entry of a protective order, Proponents have shown that discovery would likely have a chilling effect on political association and the formulation of political expression. On the other side of the ledger, plaintiffs have shown that the information they seek is reasonably calculated to lead to the discovery of admissible evidence, but, bearing in mind other sources of information, they have not shown a sufficient need for the information. The information plaintiffs seek is attenuated from the issue of voter intent, while the intrusion on First Amendment interests is substantial.13
Accordingly, we grant the petition for a writ of mandamus. Prоponents have made a prima facie showing of infringement. Plaintiffs have not shown the requisite need for the information sought. The district court shall enter a protective order consistent with this opinion.
PETITION GRANTED. Each party shall bear its costs on appeal.
RAYMOND C. FISHER
UNITED STATES CIRCUIT JUDGE