Perry v. Schwarzenegger

591 F.3d 1126 · Court of Appeals for the Ninth Circuit · 2009

Facts

In November 2008, California voters approved Proposition 8, an initiative measure providing that only marriage between a man and a woman is valid or recognized in California. Two same-sex couples, prohibited from marrying, filed a 42 U.S.C. § 1983 action in the district court. They alleged that Proposition 8 is unconstitutional under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, as it denies gay and lesbian individuals the right to marry and is a result of disapproval or animus against a politically unpopular group. State officials responsible for enforcing Proposition 8, including the Governor and Attorney General, were named as defendants, and plaintiffs sought declaratory and injunctive relief.

Issue

The legal question is whether internal campaign communications of the official proponents of Proposition 8 are protected by a First Amendment privilege from compelled disclosure during civil discovery.

Holding

The court reversed the district court's orders, holding that the plaintiffs had not demonstrated a sufficiently compelling need for the discovery to outweigh the First Amendment associational rights of the Proposition 8 proponents. The district court was instructed to enter a protective order consistent with the opinion.

Rule

The First Amendment protects the freedom to associate for the common advancement of political beliefs and ideas, and compelled disclosure that discourages this exercise is subject to exacting scrutiny. A party asserting a First Amendment privilege in discovery must make a prima facie showing of arguable infringement, such as harassment, membership withdrawal, or chilling of associational rights. If this showing is made, the burden shifts to the party seeking discovery to demonstrate a compelling governmental interest, that the information is highly relevant to the claims, and that it is otherwise unavailable. The court must balance the burdens on individuals and associations against the significance of the interest in disclosure, requiring a more demanding standard of relevance than Federal Rule of Civil Procedure 26(b)(1).

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