NO.

09-3288

IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

__________________________________________________________________

In re: Grand Jury Investigation

________________________________________________________________

On Appeal from the Decision of the United States District Court,

For the District of Kansas
The Honorable Judge Julie A. Robinson Presiding
District Court No. 09-404 JAR
__________________________________________________________________

BRIEF AMICI CURIAE OF THE INSTITUTE FOR JUSTICE

AND REASON FOUNDATION IN SUPPORT OF
DEFENDANT-APPELLANT SIOBHAN REYNOLDS
__________________________________________________________________

GEOFFREY J. MICHAEL
ANNA K. THOMPSON
MARJORIE R. LEVINE
Arnold & Porter LLP
555 Twelfth Street, N.W.
Washington, D.C. 20004
(202) 942-5000
Attorneys for Amici Curiae
Institute for Justice and
Reason Foundation
 CORPORATE DISCLOSURE STATEMENT

Pursuant to Fed. R. App. P. 26.1, the Amici make the following disclosure:

Amicus Curiae -- the Institute for Justice -- has no parent corporation, and no

publicly held company owns ten percent or more of the Institute’s stock.

Amicus Curiae -- Reason Foundation -- has no parent corporation, and no

publicly held company owns ten percent or more of Reason’s stock.

i
 CONSENT OF PARTIES TO FILING OF BRIEF

Pursuant to Fed. R. App. P. 29(a), the Amici have received consent to file

this amici brief from all counsel of record.

ii
 TABLE OF CONTENTS

Corporate Disclosure Statement.............................................................................. i

Consent of Parties to Filing of Brief....................................................................... ii

Interest of Amici Curiae..........................................................................................1

Summary of Argument ...........................................................................................3

Argument................................................................................................................5

I. Disclosure of the Type of Information Called for by the

Grand Jury Subpoenas Here Chills Speech and Burdens
the Right to Engage in Anonymous Speech and
Association .........................................................................................5
A. The First Amendment Protects the Right to Anonymous Speech
and Association........................................................................ 6
B. Disclosure Pursuant to the Grand Jury Subpoenas Creates a
Disincentive to Engage in Political and Social Advocacy
Groups ................................................................................... 13
1. Courts Have Previously Recognized the Potential
Chilling Effect of Mandatory Disclosure and Presumed
Its Existence Wherever the Government Seeks
Mandatory Disclosure.................................................. 13
2. New Data Reveals That the Chilling Effect of Mandatory
Disclosure Is More Pervasive and Forceful Than
Previously Recognized................................................. 17
C. Fear of Reprisals for Compliance with Such Disclosure
Requirements Is Both Real and Reasonable ........................... 20
II. Disclosure of Information Regarding an Advocacy
Group’s Political Strategies Violates the First
Amendment Right to Association .....................................................25

Conclusion............................................................................................................30
Certificate of Compliance .................................................................................... vii

Certificate of Service .......................................................................................... viii

iii
 TABLE OF AUTHORITIES
Page(s)
CASES
AFL-CIO v. FEC,
333 F.3d 168 (D.C. Cir. 2003) .........................................................................26

Barnes v. E-Systems, Inc. Group Hosp. Med. & Surgical Ins. Plan,
501 U.S. 1301 (1991).......................................................................................22

Brown v. Socialist Workers ’74 Campaign Comm. (Ohio),

459 U.S. 87 (1982).......................................................................................9, 14
Davenport v. Washington Education Ass’n,
551 U.S. 177 (2007)...........................................................................................1

Doe v. Reed,
Nos. 09-35818, 09-35826, 09-35863, 2009 WL 3401297 (9th Cir. Oct.
22, 2009)..........................................................................................................22

Doe v. Reed,
No. 09-559, 2009 WL 3727712 (Nov. 6, 2009)................................................23
Doe v. Reed,
No. 09A356, 2009 WL 3358149 (U.S. Sup. Ct. Oct. 20. 2009)........................22
Doe v. Reed,
No. C09-5456BHS, 2009 WL 2971761 (W.D. Wash. Sept. 10, 2009) .......21, 22

Heartland Surgical Specialty Hospital, LLC v. Midwest Division, Inc.,

No. 05-2164-MLW-DWB, 2007 WL 852521 (D. Kan. Mar. 16, 2007) ....passim

In re Motor Fuel Temperature Sales Practices Litig.,

258 F.R.D. 407 (D. Kan. 2009).................................................................passim

McConnell v. FEC,
540 U.S. 93 (2003).............................................................................................1

McIntyre v. Ohio Elections Commission,

514 U.S. 334 (1995).....................................................................................7, 13
NAACP v. Alabama,
357 U.S. 449 (1958)..................................................................................passim

iv
Nat’l Commodity & Barter Ass’n v. United States,
951 F.2d 1172 (10th Cir. 1991)........................................................................10
Pleasant v. Lovell,
876 F.2d 787 (10th Cir. 1989)......................................................................5, 26

Pollard v. Roberts,
283 F. Supp. 248 (E.D. Ark. 1968) ................................................ 10, 15, 24, 25

Randall v. Sorrell,
548 U.S. 230 (2006)...........................................................................................1

Roberts v. U.S. Jaycees,

468 U.S. 609 (1984)...........................................................................................6

Talley v. California,
362 U.S. 60 (1960).............................................................................................7
United States v. Schneider,
No. 07-10234-MLB (D. Kan. Apr. 4, 2008) (Docket #57) ...........................5, 29
United States v. Schneider,
No. 07-10234-MLB (D. Kan. July 10, 2008) (Docket #146).................. 5, 12, 29

Wisconsin Right to Life, Inc. v. FEC,

546 U.S. 410 (2006)...........................................................................................1

Wyoming v. United States Department of Agriculture,

208 F.R.D. 449 (D.D.C. 2002) ...................................................................27, 28

STATUTES AND RULES

10th Cir. R. 29 ........................................................................................................1

OTHER AUTHORITIES
Andres Araiza, Prop 8 Threat: Fresno Police Close to Arrest, abc30.com,
Oct. 31, 2008, available at
http://abclocal.go.com/kfsn/story?section=news/local&id=6479879................20

v
Associated Press, Advocate Subject to Grand Jury, TOPEKA CAPITAL-J., Apr.
14, 2009, available at http://cjonline.com/news/local/2009-04-
14/advocate_subject_to_grand_jury#.................................................................8

Associated Press, John Kerry Grills Belgium Ambassador Nominee Over

Swift Boat Donation, foxnews.com, Feb. 28, 2007, available at
http://www.foxnews.com/story/0,2933,255341,00.html...................................21
Carol J. Williams, Petition Signers Against Expanded Gay Rights Can’t
Keep Names Secret, L.A. TIMES, Oct. 23, 2009, available at
http://www.latimes.com/news/nationworld/nation/la-na-court-
confidential23-2009oct23,0,7762080.story ......................................................21

Daniel J. Solove, The First Amendment As Criminal Procedure, 82 N.Y.U.

L. REV. 112, 148 (2007)...............................................................................7, 14

Dick M. Carpenter II, Ph.D., Disclosure Costs: Unintended Consequences of

Campaign Finance Reform, Institute for Justice, Mar. 2007, available at
http://www.ij.org/images/pdf_folder/other_pubs/DisclosureCosts.pdf ......passim

Frank Owen, The DEA’s War on Pain Doctors, 48 VILLAGE VOICE, Nov. 5,
2003, available at 2003 WLNR 13347083.......................................................23

Harvey A. Silverglate, Wichita Witch Hunt, FORBES, Sept. 1, 2009, available

at http://www.forbes.com/2009/09/01/siobhan-reynolds-pain-relief-
network-wichita-justice-department-opinions-contributors-harvey-a-
silverglate.html. ...........................................................................................9, 24
Jacob Sullum, Drug Control Becomes Speech Control: A Federal
Prosecutor Tries to Silence a Pain Treatment Activist, REASON, Sept. 9,
2009, available at http://reason.com/archives/2009/09/09/drug-control-
becomes-speech-co ......................................................................................8, 23
John R. Lott, Jr. & Bradley Smith, Donor Disclosure Has Its Downsides:
Supporters of California's Prop. 8 Have Faced a Backlash, WALL ST. J.,
Dec. 26, 2008...................................................................................................20

Ronald T. Libby, Treating Doctors As Drug Dealers: The DEA’s War on

Prescription Painkillers, CATO INSTITUTE - POLICY ANALYSIS, June 16,
2005, available at http://www.cato.org/pubs/pas/pa545.pdf.............................23

vi
Steve Lopez, A Life Thrown in Turmoil by $100 Donation for Prop. 8, L.A.
TIMES, Dec. 14, 2008 .......................................................................................20

vii
 INTEREST OF AMICI CURIAE

Pursuant to Rule 29 of this Court, the Institute for Justice (the “Institute”)

and the Reason Foundation (“Reason”) (collectively, the “Amici”), respectfully

submit this amici curiae brief in support of Appellant Siobhan Reynolds.

The Institute is a nonprofit public interest legal center dedicated to defending

the essential foundations of a free society: private property rights, economic and

educational liberty, and the free exchange of ideas. The Institute litigates

First Amendment cases throughout the country and files amicus curiae briefs in

important cases nationwide, including the Supreme Court’s decisions in

Davenport v. Washington Education Ass’n, 551 U.S. 177 (2007); Randall v.

Sorrell, 548 U.S. 230 (2006); Wisconsin Right to Life, Inc. v. FEC, 546 U.S. 410

(2006); and McConnell v. FEC, 540 U.S. 93 (2003). The Institute regularly

advocates on behalf of individuals whose right to speak and associate has been

infringed by the actions of the government. Further, the Institute has published

recent empirical studies discussing the burdens and costs of compelled disclosure

requirements. See Dick M. Carpenter II, Ph.D., Disclosure Costs: Unintended

Consequences of Campaign Finance Reform, Institute for Justice, Mar. 2007,

available at http://www.ij.org/images/pdf_folder/other_pubs/DisclosureCosts.pdf

(last visited Dec. 7, 2009) (Ex. A). Thus, the Institute believes that its legal

perspective, experience, and empirical research will provide this Court with

1
valuable insights regarding the impact of mandatory disclosure on associational

activity.

Reason Foundation is a national, nonpartisan, and nonprofit public policy

think tank, founded in 1978. Reason's mission is to promote liberty by developing,

applying, and communicating libertarian principles and policies, including free

markets, individual liberty, and the rule of law. Reason promotes policies that

allow and encourage individuals and voluntary institutions to flourish.

Reason advances its mission by publishing Reason magazine, as well as

commentary on its websites -- www.reason.com, www.reason.org,

and www.reason.tv, and by issuing policy research reports that promote choice,

competition, and a dynamic market economy as the foundation for human dignity

and progress. Among other issues, Reason has focused on the adverse

consequences of drug policy, including drug control's role in impeding chronic

pain patients from obtaining adequate pain treatment. To further Reason's

commitment to “Free Minds and Free Markets,” Reason selectively participates as

amicus curiae in cases raising significant constitutional issues. These include cases

involving First Amendment speech and associational issues as well as drug policy

issues involving the hardship caused by federal interference with medically-

necessary treatment permitted under state law.

2
 SUMMARY OF ARGUMENT

Just months after the District Court denied the government’s motion to gag

Appellant on First Amendment grounds in Schneider (the criminal prosecution

underlying the allegations of obstruction of justice here), the government launched

a grand jury investigation of Appellant that is likely based on the same allegations

made in the government’s motion to gag. The subpoenas directed at Appellant in

the grand jury investigation reportedly require her to provide information that

effectively discloses the identities of Pain Relief Network’s (“PRN”) members,

donors, and supporters. Wherever the government seeks to compel the disclosure

of materials that would reveal an advocacy organization’s membership,

communications, and related materials, as the government seeks to do here, courts

have required that the government show that it has a compelling interest in the

disclosure and that the materials that it seeks are substantially related to this

interest. Courts have long recognized that a driving force behind the rationale for

application of strict scrutiny in this context is the recognition that the mandatory

disclosure of membership information of advocacy groups creates a chilling effect

that infringes on the members’ First Amendment liberty to engage in political

association anonymously. Newly available empirical studies and political events

not only confirm this chilling effect, but also suggest that it may be more powerful

and pervasive than courts had previously assumed.

3
 In addition to revealing PRN’s members, donors, and supporters, the

subpoenas further threaten Appellant’s First Amendment rights by calling for the

disclosure of materials that will reveal Appellant’s advocacy strategies to political

opponents. Through the subpoenas, the Schneider prosecutors -- the very

government agents whose actions Appellant and PRN oppose -- effectively receive

PRN’s strategies for challenging governmental policies on pain relief treatment.

Faced with similar situations, courts have repeatedly found that unconstitutional

interference with an advocacy group’s internal workings includes the forced

exposure of an organization’s political strategies to political opponents.

Given the chilling effect that the subpoenas will have on Appellant’s right to

associate, and the potential exposure of Appellant’s and PRN’s political strategies

to the government, the Amici urge this Court to rigorously apply strict scrutiny,

requiring the government to meet the heavy burden of demonstrating a compelling

need for the disclosure and that the disclosure is the only means to obtain the

information that the government requires. The government has already failed to

meet that burden once, when it tried to gag Appellant. This Court should hold that

the government has similarly failed to meet that burden in this proceeding, and

reverse the decision of the lower court.

4
 ARGUMENT

I. Disclosure of the Type of Information Called for by the Grand Jury

Subpoenas Here Chills Speech and Burdens the Right to Engage in
Anonymous Speech and Association
On the heels of an unsuccessful motion to gag Appellant,1 the government

now pursues another avenue -- subpoenas pursuant to a grand jury investigation --

that poses a significant threat to Appellant’s First Amendment rights. As the

Supreme Court and the courts of this Circuit have long recognized, the First

Amendment protects the right to anonymous speech and expressive association.

See NAACP v. Alabama, 357 U.S. 449, 462 (1958) (recognizing “the vital

relationship between freedom to associate and privacy in one’s associations”);

Pleasant v. Lovell, 876 F.2d 787, 795 (10th Cir. 1989) (“There are a number of

ways in which government action may infringe upon a group member’s right to

associate with others to promote an unpopular viewpoint. These include . . .

requiring disclosure of group membership when anonymity is desired.”) (citations

omitted). For this reason, wherever the government seeks to compel the disclosure

of materials that would reveal an advocacy organization’s membership,

communications, and related materials, courts have required that the government

1
Government’s Mot. Pursuant to Local Rule 83.2.3, United States v.
Schneider, No. 07-10234-MLB (D. Kan. Apr. 4, 2008) (Docket #57); Mem. and
Order, United States v. Schneider, No. 07-10234-MLB (D. Kan. July 10, 2008)
(Docket #146) (unpublished) (denying the government’s motion to restrict
Appellant from speaking with the media).

5
show that it has a compelling interest in the disclosure and that the materials that it

seeks are substantially related to this interest. And, under the prior case law, this

high burden should be placed on the government in every instance.

The prior case law requiring application of strict scrutiny to the

government’s actions here rests on the valid premise that disclosure relating to

speech and associational activities of the type mandated by the grand jury

subpoenas and District Court’s order in this case can significantly chill an

advocacy organization’s ability to exercise its First Amendment rights due to a

reasonable fear of reprisal. Recently performed empirical research demonstrates

that the breadth and scope of the chilling effect is even greater than previously

envisioned. The newly available data shows that the source of the chilling effect

described in prior case law -- the reasonable fear of reprisals -- pervades almost

every instance where the government seeks to mandate disclosure of information

of the nature at issue here.

A. The First Amendment Protects the Right to Anonymous Speech

and Association
The Supreme Court has clearly held that the First Amendment’s guarantee of

the right to free speech includes the right to expressive association, i.e., association

“for the purpose of engaging in those activities protected by the First Amendment

-- speech, assembly, petition for the redress of grievances.” Roberts v. U.S.

Jaycees, 468 U.S. 609, 618 (1984). As the Supreme Court explained in NAACP v.

6
Alabama, 357 U.S. 449 (1958), “[e]ffective advocacy of both public and private

points of view, particularly controversial ones, is undeniably enhanced by group

association, as this Court has more than once recognized by remarking upon the

close nexus between the freedoms of speech and assembly.” Id. at 460; see also

Daniel J. Solove, The First Amendment As Criminal Procedure, 82 N.Y.U. L. REV.

112, 148 (2007) (noting that First Amendment rights are implicated when

information about associational activities is compelled by the government, even

without public disclosure).

The Supreme Court has further held that the First Amendment’s guarantees

of free speech and expressive association include the right to anonymity while

exercising those rights. For example, in NAACP, the Court, “recogniz[ing] the

vital relationship between freedom to associate and privacy in one’s associations,”

concluded that the mandatory disclosure of associational affiliation implicates core

First Amendment rights. NAACP, 357 U.S. at 462. More recently, in McIntyre v.

Ohio Elections Commission, 514 U.S. 334 (1995), the Court applied this principle

to find that the First Amendment protects anonymity of the authorship of

documents intended to influence the public. Id. at 357 (“[A]n author’s decision to

remain anonymous . . . is an aspect of the freedom of speech protected by the First

Amendment.”); see also Talley v. California, 362 U.S. 60, 65 (1960) (“We have

recently had occasion to hold in two cases that there are times and circumstances

7
when States may not compel members of groups engaged in the dissemination of

ideas to be publicly identified.”).

The subpoenas at issue here thus implicate Appellant’s First Amendment

right to anonymous speech and expressive association by seeking to compel the

disclosure of materials that would necessarily divulge the identity of Appellant’s

supporters, donors, and members.2 Among other things, the grand jury subpoenas

reportedly seek (1) communications by PRN’s members concerning the Schneider

case, (2) bank and credit card statements, (3) correspondence related to a billboard

commissioned by PRN, which reads: “Dr. Schneider Never Killed Anyone,” and

(4) copies of and materials relating to an advocacy video produced by PRN.

Associated Press, Advocate Subject to Grand Jury, TOPEKA CAPITAL-J., Apr. 14,

2009, available at http://cjonline.com/news/local/2009-04-

14/advocate_subject_to_grand_jury#; Jacob Sullum, Drug Control Becomes

2
Like infringements into any other right, government intrusion upon the right
to anonymous speech and expressive association can be either direct or indirect.
See NAACP, 357 U.S. at 461 (“In the domain of these indispensable liberties,
whether of speech, press, or association, the decisions of this Court recognize that
abridgement of such rights, even though unintended, may inevitably follow from
varied forms of governmental action.”). Here, the Assistant U.S. Attorney sought
the subpoenas in question after the district court denied the government’s motion
to gag. This sequence of facts strongly suggests that the government has issued
these subpoenas in direct retaliation for Appellant’s political advocacy. At a
minimum, the subpoenas constitute an indirect governmental intrusion of
Appellant’s right to anonymous association, in that their enforcement would
necessarily result in the disclosure of materials that reveal Appellant’s

8
Speech Control: A Federal Prosecutor Tries to Silence a Pain Treatment Activist,

REASON, Sept. 9, 2009, available at http://reason.com/archives/2009/09/09/drug-

control-becomes-speech-co; Harvey A. Silverglate, Wichita Witch Hunt, FORBES,

Sept. 1, 2009, available at http://www.forbes.com/2009/09/01/siobhan-reynolds-

pain-relief-network-wichita-justice-department-opinions-contributors-harvey-a-

silverglate.html.

Whenever the government seeks to obtain information that would intrude

upon the rights to anonymity in speech and expressive association as it does here,

the government must show that it is acting in furtherance of an overwhelming and

compelling interest and that there is a substantial relationship between that interest

and its actions. See NAACP, 357 U.S. at 461 (“[S]tate action which may have the

effect of curtailing the freedom to associate is subject to the closest scrutiny.”);

Brown v. Socialist Workers ’74 Campaign Comm. (Ohio), 459 U.S. 87, 91-92

(1982) (“The right to privacy in one’s political associations and beliefs will yield

only to a ‘subordinating interest of the State [that is] compelling,’ and then only if

there is ‘a substantial relationship between the information sought and [an]

overriding and compelling state interest.’”) (citations omitted). This is no less true

in the context of grand jury subpoenas; as the courts of this Circuit have routinely

associational membership and activities, regardless of the underlying motivation

behind the issuance of the subpoenas.

9
held, where any First Amendment freedom is implicated by a subpoena, the

government must prove (1) a compelling need for the subpoenaed records, and (2)

that the records bear a substantial relationship to the compelling interest. See Nat’l

Commodity & Barter Ass’n v. United States, 951 F.2d 1172, 1174 (10th Cir. 1991);

In re Motor Fuel Temperature Sales Practices Litig., 258 F.R.D. 407, 415-16 (D.

Kan. 2009).3

This is a high burden, and courts in this Circuit have routinely quashed

subpoenas seeking such materials. For example, in Heartland Surgical Specialty

Hospital, LLC v. Midwest Division, Inc., No. 05-2164-MLW-DWB, 2007 WL

852521 (D. Kan. Mar. 16, 2007) (unpublished), the plaintiff subpoenaed the

Kansas Hospital Association (KHA) -- a third-party association of hospitals -- to

produce certain documents that, while relating to plaintiff’s litigation, would also

have revealed information regarding KHA’s membership and activities. Id. at *1.

KHA objected on First Amendment grounds. Id. The court noted that other courts

have in a sense “taken judicial notice of the fact that disclosure of these internal

3
In evaluating whether a compelling need for the information exists, courts
consider the following: (1) the relevance of the evidence, (2) the necessity of
receiving the information, (3) the availability of the information from other
sources, and (4) the nature of the information. In re Motor Fuel, 258 F.R.D. at
416; see also Pollard v. Roberts, 283 F. Supp. 248, 256 (E.D. Ark. 1968) (noting
that to be a valid subpoena, the subpoenaing party must (1) act within its
jurisdiction, (2) request materials with specificity, and (3) request materials that are
reasonably relevant to a compelling interest).

10
associational activities—membership lists, volunteer lists, financial contributor

lists, and political activities of the organization's members—will lead to threats,

harassment, or reprisal, thereby chilling freedom of association.” Id. at *5 n.4

(quoting State v. U.S. Dep’t of Agric., 239 F. Supp. 2d 1219, 1238 n.14 (D. Wyo.

2002)). The district court quashed the subpoena, holding that the plaintiff could

not show a compelling need for the documents so as to overcome the significant

burdens on the First Amendment. Id. at *4, *7.

Similarly, in In re Motor Fuel Temperature Sales Practices Litigation, 258

F.R.D. 407 (D. Kan. 2009), the court quashed in relevant part a subpoena that

threatened to reveal an expressive association’s membership and other previously

undisclosed information. See id. at 410. In that case, the plaintiff subpoenaed

documents from third-party trade associations, seeking documents sufficient to

identify the trade associations’ business and organizational structure, membership

lists, and documents relating to advocacy and lobbying efforts. Id. at 411. The

court noted that the identities of the trade associations’ anonymous members “go to

the core of the First Amendment right to associate.” Id. at 416. Finding that “this

factor weigh[ed] heavily against their disclosure,” the court quashed the subpoena

in relevant part. Id.

It is noteworthy that the district court in Schneider denied a similar

government motion to gag Appellant for failure to show a compelling interest. See

11
generally Mem. and Order, United States v. Schneider, No. 07-10234-MLB (D.

Kan. July 10, 2008) (Docket #146) (unpublished). In that order, the Schneider

court found that the government’s allegations that Appellant had obstructed justice

by influencing the jury pool (through exercising her freedom of speech) did not

constitute a compelling interest so as to justify infringement on Appellant’s First

Amendment rights. Id. at 3. Assuming that the rationale for the government’s

motion to gag Appellant in the Schneider criminal case mirrors the claims in the

present grand jury investigation, it is unlikely that the government’s interest is any

more compelling in the instant case than it was in the former. Indeed, the

circumstances of these present subpoenas, coming on the heels of an unsuccessful

attempt to silence Appellant, strongly suggest that they are part of a calculated

attempt to discourage Appellant from vocally criticizing what she views to be an

unjust prosecution -- an interest that is not even legitimate, let alone compelling.

Regardless, as discussed in the remainder of this section, the Amici file this

amici brief to bring to this Court’s attention new information that sheds light on the

bases of the Supreme Court’s jurisprudence concerning the right to anonymous

speech and expressive association. The Supreme Court’s recognition of the right

to anonymous expressive association and speech and the requirement that the

government’s efforts to breach those rights pass strict scrutiny rests, in large part,

on the correct assumption that mandatory disclosure of the identities of an

12
association’s membership and details regarding its activities necessarily has a

chilling effect on that association’s and its members’ speech. As described below,

new research has revealed that the magnitude of this chilling effect is far greater

than previously suspected. Accordingly, it is vital that this Court ensure that the

government meets its heavy burden in this case.

B. Disclosure Pursuant to the Grand Jury Subpoenas Creates a

Disincentive to Engage in Political and Social Advocacy Groups

1. Courts Have Previously Recognized the Potential Chilling

Effect of Mandatory Disclosure and Presumed Its Existence
Wherever the Government Seeks Mandatory Disclosure
As described above, the Supreme Court repeatedly has recognized that

compelled disclosure imposes a serious burden on First Amendment rights. See

supra Part I.A at 6-10; see also McIntyre v. Ohio Elections Comm’n, 514 U.S. 334,

346-47 (1995) (discussing the significant burdens an Ohio statute, which

prohibited the distribution of anonymous campaign literature, had on the First

Amendment). An indispensable part of the Supreme Court’s rationale in

recognizing the right to anonymous political association was the “chilling” effect

that forced disclosure of an advocacy group’s internal documents has on that

organization and its members, donors, and supporters. For example, in NAACP,

the Court found that mandatory disclosure of information that would reveal the

NAACP’s membership would “likely [] affect adversely the ability of [the

NAACP] and its members to pursue their collective effort to foster beliefs which

13
they admittedly have the right to advocate, in that it may induce members to

withdraw from the Association and dissuade others from joining it because of fear

of exposure of their beliefs shown through their associations and of the

consequences of this exposure.” NAACP, 357 U.S. at 462-63. Similarly, in

Brown v. Socialist Workers ’74 Campaign Committee (Ohio), the Court found that

if the names of contributors and recipients of disbursements of the Socialist

Workers Party were disclosed, the chilling effect of the disclosures would “cripple

a minor party’s ability to operate effectively and thereby reduce the free circulation

of ideas both within and without the political arena.” Brown, 459 U.S. at 97-98

(citations and internal quotation marks omitted).

One academic has explained the manner by which governmental action

mandating disclosure of information chills speech as follows: “[G]overnment

information gathering will often indirectly affect the exercise of First Amendment

rights by discouraging expressive and associational activity. . . . [Such a] chilling

effect occurs when individuals seeking to engage in activity protected by the [F]irst

[A]mendment are deterred from so doing by governmental regulation not

specifically directed at that protected activity.” Solove, supra, at 142-43 (citations

and quotations omitted); see also NAACP, 357 U.S. at 462 (discussing reprisals

associated with disclosure of associational information); Brown, 459 U.S. at 96-97

14
(discussing the “threat to First Amendment rights that would result from requiring

minor parties to disclose the recipients of campaign disbursements”).

The chilling effect that results where the government mandates disclosure of

the sorts of materials sought by the government here is so well-recognized that

courts have routinely held that a party asserting First Amendment privileges does

not need to make a prima facie showing of an actual chilling effect in order to

trigger the application of strict scrutiny. See In re Motor Fuel, 258 F.R.D. at 414

n.24 (“The court notes that a concrete showing of infringement upon associational

rights is not necessary for the privilege to apply.”); see also Pollard, 283 F. Supp.

at 258 (“While there is no evidence of record in this case that any individuals have

as yet been subjected to reprisals . . . it would be naïve not to recognize that the

disclosure of the identities of contributors to campaign funds would subject at least

some of them to potential economic or political reprisals of greater or lesser

severity.”).

In this same vein, courts in this Circuit have required that parties challenging

disclosure requirements make only a minimal showing that disclosure may infringe

upon their First Amendment rights, in essence presuming First Amendment

implications of mandatory disclosure. Heartland, 2007 WL 852521, at *4

(rejecting the plaintiff’s argument that the First Amendment privilege only protects

the “relatively powerless” from serious threats of economic reprisals, loss of

15
employment, or threat of physical coercion); In re Motor Fuel, 258 F.R.D. at 413

(“Courts have applied a presumption of privilege to information that goes to the

core of a group’s associational activities, finding that disclosure of such

information would very likely chill freedom of association.”).

Indeed, the types of compelled disclosure at issue here4 are so intrusive that

“federal courts assume, sometimes implicitly, that the party seeking protection [of

an advocacy association’s internal documents] has made his prima facie showing”

that its First Amendment rights are implicated. Heartland, 2007 WL 852521, at *5

(internal quotations and citations omitted); see also In re Motor Fuel, 258 F.R.D. at

413 (“To the extent that . . . subpoenas seek confidential membership lists and

financial contributor lists [of associations], the court easily finds this information

goes to the core of the associations’ activities and is prima facie privileged.”).

This prior case law makes perfect sense for two reasons. First, any test for

determining the validity of a government-mandated disclosure under the First

Amendment that required that, for the test even to be applied, the speaker or

association must actually have already experienced threats, harassment, or

reprisals, or a reasonable fear thereof, would itself place an irreparable burden on

4
Both attempted mandatory disclosure of membership where anonymity is
desired and attempted interference with an advocacy group’s internal organizations
are recognized infringements on the First Amendment. Heartland, 2007 WL
852521, at *4 (citing at Pleasant v. Lovell, 876 F.2d 787, 795 (10th Cir. 1989)).

16
First Amendment freedoms. Requiring the restaurant owner first to suffer the

economic harm of boycotts for exercising his right to anonymously donate money

to a political cause, see infra Part I.C at 20, or requiring Appellant to experience a

criminal prosecution for simply supporting an unpopular cause unjustifiably

violates fundamental rights. The chilling effect on speakers and associational

members will have already taken its toll.

Second, in the technological age, the likelihood of broad public disclosure,

and subsequent repercussions from that disclosure, increases significantly. Certain

precautions such as grand jury secrecy or the sealing of documents by the court,

while well-intentioned, cannot fully protect the speaker-advocacy group from

reprisals. At the same time, it may not be possible for the speaker-advocacy group

to identify the potential sources of threats. The only effective way to mitigate this

risk is to presume that speakers may maintain anonymity regarding their political

speech and associations, and always to place the burden squarely on the

government to satisfy strict scrutiny if it wishes to compel the disclosure of that

information.

2. New Data Reveals That the Chilling Effect of Mandatory

Disclosure Is More Pervasive and Forceful Than Previously
Recognized
In 2007, Dr. Dick Carpenter conducted a study to explore the scope and

magnitude of the chilling effects of mandatory disclosure requirements. See Dick

17
M. Carpenter II, Ph.D., Disclosure Costs: Unintended Consequences of Campaign

Finance Reform, Institute for Justice, Mar. 2007, available at

http://www.ij.org/images/pdf_folder/other_pubs/DisclosureCosts.pdf (last visited

Dec. 7, 2009) (Ex. A). Dr. Carpenter’s research not only confirms what courts and

other legal jurists have long suggested about the chilling effect of mandatory

disclosure, but also shows that the courts were too conservative in estimating the

magnitude of the chilling effect.

The results revealed that although people in the first instance generally

favored disclosure of information (specifically campaign finance contributions),

they became very concerned with such disclosure when posed questions

implicating a scenario by which they were personally affected by the requirements:

More than 82 percent of respondents agreed or strongly

agreed with the idea [of mandatory contribution
disclosure requirements] . . . . Yet, support for disclosure
wanes considerably when the issue is personalized . . . .
[M]ore than 56 percent disagreed or strongly disagreed
that their identity should be disclosed, and the number
grew to more than 71 percent when disclosure of their
personal information included their employer’s name. . . .

Id. at 7-8. In other words, 71 percent of respondents opposed forced disclosure of

identifying information in the context of campaign contributions.

Dr. Carpenter’s study further found that the desire to engage in anonymous

political speech and association was the primary concern of those wary of

disclosure of personal information:

18
 When asked . . . why they would think twice if their
personal information was disclosed, the reason most
often given (54 percent) was a desire to keep their
contribution anonymous. Responses such as, “Because I
do not think it is anybody’s business what I donate and
who I give it to,” and “I would not want my name
associated with any effort. I would like to remain
anonymous,” typified this group of responses. . . .
Respondents also most often cited the issue of anonymity
(32 percent) when asked why they would think twice
before donating if their employer’s name were disclosed.
In this case, the concern was over revealing where they
work.

Id. at 8-9 (emphasis in original).

In sum, Dr. Carpenter’s study reveals that, in the context of campaign

contributions, the speech of a large percentage of people would be chilled by the

government mandating disclosure of identifying information. That finding is no

less relevant here, where the government has attempted to mandate disclosure of

identifying information of an advocacy organization’s members, donors, and

supporters pursuant to grand jury subpoenas. These new findings lay bare the full

force of the chilling effect that results whenever the government seeks mandatory

disclosure of the type of information sought by the subpoenas in the instant case.

And, based on these findings, this Court should not make the mistake of

underestimating or paying mere lip service to the high burden that the government

must meet in order to require disclosure here.

19
 C. Fear of Reprisals for Compliance with Such Disclosure
Requirements Is Both Real and Reasonable
Dr. Carpenter’s study demonstrates the existence of a chilling effect through

rigorous empirical research; however, the extent of the chilling effect is also

evident from recent events. Within the last few years, both supporters and

opponents of California's Proposition 8 were subject to reprisals after passage of

the law. In many instances, the identity of these supporters was made public

through mandatory government disclosure. See Steve Lopez, A Life Thrown in

Turmoil by $100 Donation for Prop. 8, L.A. TIMES, Dec. 14, 2008 (discussing the

boycott of a restaurant whose owner donated money in support of Proposition 8);

Andres Araiza, Prop 8 Threat: Fresno Police Close to Arrest, abc30.com, Oct. 31,

2008, available at http://abclocal.go.com/kfsn/story?section=news/local&id=

6479879 (“Supporters of gay marriage are also being harassed. Over night

someone tore up signs at the Clovis Unitarian Universalist Church. Reverend

Bryan Jessup said every night they endure vandalism because they oppose Prop

8.”); John R. Lott, Jr. & Bradley Smith, Donor Disclosure Has Its Downsides:

Supporters of California's Prop. 8 Have Faced a Backlash, WALL ST. J., Dec. 26,

2008 (describing the economic retaliation suffered by donors in support of the

proposition). And, this emerging pattern of retribution against the members,

supporters, and donors of advocacy groups has not been not limited to advocates

on either side of Proposition 8. See, e.g., Associated Press, John Kerry Grills

20
Belgium Ambassador Nominee Over Swift Boat Donation, FoxNews.com, Feb. 28,

2007, available at http://www.foxnews.com/story/0,2933,255341,00.html (“A

Senate hearing that began with glowing tributes to a St. Louis businessman and his

qualifications to become ambassador to Belgium turned bitterly divisive Tuesday

after he was criticized for supporting a controversial conservative group.”).

The reasonableness of fear of retaliation for expressive activities is further

exemplified by the ongoing Doe v. Reed litigation in Washington State, involving

the attempts by pro-gay marriage advocates to obtain the identities of those who

signed a Washington State petition seeking to place a referendum on the ballot that

would repeal a gay-marriage law. Relying on the right to anonymous speech and

expressive association, Protect Marriage Washington -- the advocacy group that

had collected the signatures -- sought to enjoin the State from disclosing the

names. See Doe v. Reed, No. C09-5456BHS, 2009 WL 2971761, at *1 (W.D.

Wash. Sept. 10, 2009) (unpublished).5 The District Court for the Western District

of Washington found that one likely purpose of those seeking the disclosure is to

put those citizens in the public spotlight, thereby discouraging those citizens and

others from engaging in similar speech in the future, id. at *4 (noting that the

5
See also Carol J. Williams, Petition Signers Against Expanded Gay Rights
Can’t Keep Names Secret, L.A. TIMES, Oct. 23, 2009, available at
http://www.latimes.com/news/nationworld/nation/la-na-court-confidential23-
2009oct23,0,7762080.story (citing the Proposition 8 example).

21
purpose of releasing the names is to “encourage individuals to contact and to have

a personal and uncomfortable conversation with any person who signed the

petition”) (internal quotation marks omitted); the court therefore held that the

disclosure would likely violate First Amendment protections and preliminarily

enjoined the State from revealing the names on the petition. Id. at *11.

While the Ninth Circuit reversed,6 just weeks ago, the Supreme Court stayed

the Ninth Circuit’s judgment. See Order in Pending Case, Doe v. Reed, No.

09A356, 2009 WL 3358149 (U.S. Sup. Ct. Oct. 20. 2009) (mem.) (unpublished).

In making this decision, the Supreme Court necessarily decided that there is 1) “a

reasonable possibility that certiorari will be granted,” 2) “a significant possibility

that the judgment [of the Ninth Circuit] will be reversed,” and 3) a likelihood of

irreparable harm (assuming the correctness of [Protect Marriage Washington’s]

position) if the judgment is not stayed.” Barnes v. E-Systems, Inc. Group Hosp.

Med. & Surgical Ins. Plan, 501 U.S. 1301, 1302 (1991) (Scalia, J., in chambers)

(citing Times-Picayune Pub. Corp. v. Schulingkamp, 419 U.S. 1301, 1305 (1974)

(Powell, J., in chambers)). Cf. Doe, 2009 WL 2971761, at *5-*11 (explaining the

district court’s finding in support of a preliminary injunction). On November 6,

2009, Protect Marriage Washington filed a petition for writ of certiorari, which

6
Doe v. Reed, Nos. 09-35818, 09-35826, 09-35863, 2009 WL 3401297, at *7
(9th Cir. Oct. 22, 2009) (unpublished).

22
remains before the Supreme Court. Petition for Writ of Certiorari, Doe v. Reed,

No. 09-559, 2009 WL 3727712 (Nov. 6, 2009).

As these recent incidents show, the chilling effect found by Dr. Carpenter’s

study has a basis in real and recent events. Indeed, in this very case, members of

the press have speculated that the government initiated a criminal investigation

because of Appellant’s public support of the Schneiders and the use of pain relief

medications. See Jacob Sullum, Drug Control Becomes Speech Control: A

Federal Prosecutor Tries to Silence a Pain Treatment Activist, REASON, Sept. 9,

2009, available at http://reason.com/archives/2009/09/09/drug-control-becomes-

speech-co; see also Frank Owen, The DEA’s War on Pain Doctors, 48 VILLAGE

VOICE, Nov. 5, 2003, available at 2003 WLNR 13347083 (describing a patient

who suffers from chronic pain as well as from the public “shame and fear” that

come with using opiods); id. (describing the increased investigations and

prosecutions of pain relief doctors); Ronald T. Libby, Treating Doctors As Drug

Dealers: The DEA’s War on Prescription Painkillers, CATO INSTITUTE - POLICY

ANALYSIS, June 16, 2005, available at http://www.cato.org/pubs/pas/pa545.pdf

(describing DEA prosecutions of pain relief doctors). Regardless of whether these

reports are correct,7 the very fact of the reports will unavoidably have a chilling

7
This would not be the first time that persons and organizations advocating
for pain relief reform have been the target of governmental investigations.

23
effect on the general populace.

In sum, anecdotal evidence and the facts of this case support the

longstanding conclusion of courts and Dr. Carpenter’s findings that a potent

chilling effect adheres where the government seeks to mandate disclosure of the

type of materials that the government seeks from Appellant here. Considering the

significant cost to fundamental rights, where the government seeks to subpoena

information that implicates the First Amendment, the Court should hold the

government to the highest standard of showing a compelling interest that is

substantially related to the document requests. See Heartland, 2007 WL 852521,

at *5-*7; In re Motor Fuel, 258 F.R.D. at 412 (noting that in the discovery context,

compelled production pursuant to a subpoena requires “the party seeking

disclosure to demonstrate its interests in obtaining the information outweigh the

other party’s interests in not disclosing the information”); Pollard, 283 F. Supp. at

257-58 (holding that mere suspicion of a crime is insufficient to meet the high

burden of showing that disclosure of member identities was reasonably relevant to

the criminal investigation); see id. at 258 (“We think that in order to overcome the

prohibitions of that Amendment the defendant was required to make a far greater

Silverglate, supra (describing the over 400 criminal prosecutions of pain relief
doctors and the prosecution of their advocates).

24
showing of relevancy and public interest in the disclosure than has been made

here.”).

* * *

In sum, prior precedent requires the government to show a compelling

interest that is substantially related to the document requests to prevail in this

appeal. See Heartland, 2007 WL 852521, at *5-*7; In re Motor Fuel, 258 F.R.D.

at 412; Pollard, 283 F. Supp. at 257-58; see id. at 258. While courts have long

recognized the chilling effect of mandatory disclosure as the genesis of this

requirement, new data reveal that the magnitude and pervasive nature of the

chilling effect is even greater than previously envisioned. And, given recent

events, the fear of reprisals that results in this chilling effect is both real and

reasonable. The Amici therefore urge this Court to apply the “closest scrutiny” to

the government’s attempt to infringe on Appellant’s rights, NAACP, 357 U.S. at

461, and reverse the decision of the lower court.

II. Disclosure of Information Regarding an Advocacy Group’s Political

Strategies Violates the First Amendment Right to Association
In addition to violating Appellant’s rights to anonymous speech and

expressive association, the disclosure of the documents called for by the subpoenas

here would infringe upon Appellant’s First Amendment rights by revealing

Appellant’s and PRN’s political strategies for advocating in favor of the

prescription of pain treatment and against the prosecution of the Schneiders.

25
 As this Court recognized in Pleasant v. Lovell, 876 F.2d 787 (10th Cir.

1989), a “government action may infringe upon a group member’s right to

associate with others to promote an unpopular viewpoint [by] . . . interfering with

the internal workings of the group.” Id. at 795. Particularly with respect to

organizations that advocate controversial views, the mandatory disclosure of

documents that would reveal an advocacy group’s political strategies, thereby

giving those who disagree with the organization’s views an unfair advantage,

violates the First Amendment. See In re Motor Fuel, 258 F.R.D. at 415. The

subpoenas issued to Appellant here reportedly therefore would violate her First

Amendment rights by requiring her to turn over information that necessarily would

reveal Appellant’s and PRN’s strategies for advocating against the prosecution of

the Schneiders to the very Assistant U.S. Attorney prosecuting the Schneiders.

For this very reason, faced with similar situations, courts have repeatedly

found that unconstitutional interference with an advocacy group’s internal

workings includes the forced exposure of an organization’s political strategies to

political opponents. See, e.g., AFL-CIO v. FEC, 333 F.3d 168, 170 (D.C. Cir.

2003) (holding that an FEC regulation that would have required the disclosure of a

political organizations’ strategy documents was “impermissible because it fails to

account for the substantial First Amendment interests implicated in releasing

political groups’ strategic documents and other internal materials”).

26
 For example, in Wyoming v. United States Department of Agriculture, 208

F.R.D. 449 (D.D.C. 2002), the district court granted a motion to quash subpoenas

issued by the State of Wyoming to non-party environmental advocacy groups. Id.

at 453. In that case, the State challenged forest-management regulations

promulgated by the U.S. Department of Agriculture (USDA) as a violation of the

Federal Advisory Committee Act (FACA). Id. at 451. The State argued that the

regulations, which it alleged impaired forest health and denied access to large parts

of state-owned land, were created with the assistance of an “advisory committee”

that represented only the interests of the national environmental organizations,

including the non-party witnesses, in violation of the FACA’s requirement that an

advisory committee “ensure that membership of the committee represented a cross-

section of groups interested in the subject.” Id. at 451-52. To bolster its claim that

the USDA’s advisory committee violated the FACA, the State issued subpoenas to

non-party environmental advocacy groups requesting all documents and

communications the advocacy groups possessed relating to the regulations and

their activities undertaken on behalf of the USDA. Id. at 452. The advocacy

groups objected to the subpoenas as infringing on their right to association, arguing

that the subpoenas were “an intrusive, ideologically motivated attempt by a state

fighting environmental regulations to intrude into the strategy and policy ideas of

environmental groups.” Id. at 453. The Court found that the “extraordinarily

27
broad” subpoenas implicated the advocacy groups’ First Amendment rights by

seeking “internal communications and strategic communications on policy issues

with other environmental advocacy groups.” Id. at 454-55. The court further

found that the State failed to meet its burden to allow for such an infringement on

the groups’ First Amendment rights, and therefore quashed the subpoenas. Id. at

455.

Courts in the Tenth Circuit have similarly quashed subpoenas that required

the disclosure of documents that would reveal advocacy groups’ political

strategies. See Heartland, 2007 WL 852521 at *4-*5 (quashing subpoenas issued

to third-party hospital association based on court’s conclusion that, even if

association had not shown that production of the requested documents would

threaten or intimidate the association’s members, “the attempt to require

production of [the association’s] evaluations of possible legislation and legislative

strategy . . . is precisely the type of internal associational activity and past political

activity that the First Amendment is designed to protect”); In re Motor Fuel, 258

F.R.D. at 415, 418 (denying motion to compel various trade associations to

disclose documents relating to their lobbying efforts because such disclosure,

which “could be used by plaintiffs to gain an unfair advantage over defendants in

the political arena,” was “highly privileged because it involves a core associational

activity protected by the First Amendment”).

28
 As discussed above, the Assistant U.S. Attorney here unsuccessfully

attempted to silence Appellant in the Schneider case through a gag order. See

supra Part I.A at 11-12. Characterizing Appellant as a “proxy” and “advisor” to

the Schneider defendants with the political goal of “obtaining media coverage for

herself and [PRN], on the backs of the [Schneider] defendants,” the Assistant U.S.

Attorney asked the court to prohibit Appellant’s contact with witnesses.

Government’s Mot. Pursuant to Local Rule 83.2.3, United States v. Schneider, No.

07-10234-MLB, at 6, 15-16 (D. Kan. Apr. 4, 2008) (Docket #57). The district

court properly refused this request. See Mem. and Order, United States v.

Schneider, No. 07-10234-MLB (D. Kan. July 10, 2008) (Docket #146)

(unpublished). Having failed to silence Appellant with a gag order, the Assistant

U.S. Attorney has now issued subpoenas that would gain broad access to

communications, financial statements and other records of Appellant’s advocacy

activities. Such disclosure would reveal Appellant’s and PRN’s political strategies

for their campaign to support pain treatment, to overturn federal restrictions on

pain medication, and to oppose prosecutions like that of the Schneiders. This

disclosure would undoubtedly interfere with Appellant’s and PRN’s internal

workings and infringe upon their First Amendment right to expressive association.

29
 CONCLUSION

For the foregoing reasons, the Amici respectfully submit that this Court

should reverse the decision of the district court.

Respectfully submitted,

/s/ Geoffrey J. Michael

Geoffrey J. Michael
Anna K. Thompson
Marjorie R. Levine
ARNOLD & PORTER
555 Twelfth Street, N.W.
Washington, D.C. 20004-1206
(202) 942-5000
Attorneys for Amici Curiae
Institute for Justice and Reason Foundation

Dated: December 7, 2009

30
 CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. P. 32(a)(7)(B), the undersigned hereby affirms that

the foregoing Brief Amici Curiae of the Institute for Justice and Reason

Foundation in Support of Defendant-Appellant contains a total of 6685 words,

excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), as

determined by the word processing system used to prepare this document

(Microsoft Word 2007).

Respectfully submitted, this 7th day of December, 2009.

/s/ Geoffrey J. Michael

Geoffrey J. Michael

vii
 CERTIFICATE OF SERVICE

I hereby certify that I have this day served the foregoing Brief Amici Curiae

of the Institute for Justice and Reason Foundation in Support of Defendant-

Appellant via clerk and by causing a true and correct copy of the same to be

deposited in the United States Mail, first class, postage prepaid, and addressed as

follows:

Zachary A. Ives
Molly Schmidt-Nowara
Freedman Boyd Hollander
Goldberg & Ives P.A.
P.O. Box 25326
Albuquerque, NM 87125

Jay A. Rorty
Scott M. Michelman
American Civil Liberties Union Foundation -- Santa Cruz
1101 Pacific Avenue
Suite 333
Santa Cruz, CA 95060

Stephen D. Bonney
ACLU of Kansas & Western Missouri
3601 Main Street
Kansas City, MO 64111

Tanya S. Treadway
Asst. U.S. Attorney
290 U.S. Courthouse
444 S.E. Quincy Street
Topeka, KS 66683

This 7th day of December, 2009.

/s/ Geoffrey J. Michael
Geoffrey J. Michael
viii