A Victory In the War For Free Speech

One of the most sinister developments of our time is the Left’s use of both criminal investigation and mob harassment to suppress dissent. An outrageous instance of this trend is the effort by 20 Democratic state Attorneys General to investigate ExxonMobil and others for criminal “fraud,” i.e., carrying out research that doesn’t support the hysterical exaggerations of the Climatistas.

One of the leaders of this attempt to suppress scientific debate is California’s Attorney General, Kamala Harris. She has initiated a purported investigation into “whether Exxon Mobil Corp. repeatedly lied to the public and its shareholders about the risk to its business from climate change — and whether such actions could amount to securities fraud and violations of environmental laws.”

Kamala Harris is running for the Senate. As part of her campaign, she has sought press coverage of her attacks on “dark money,” i.e., money the Democrats don’t control. Harris has demanded that conservative 501(c)(3) organizations file their federal IRS Form 990s, including Schedule B, which identifies donors, with her office. Her obvious intent was either to publicize the names of donors, which are confidential under federal law, so that they could be threatened by liberals, or else to shut them up herself through bogus investigations.

Americans For Prosperity brought an action in federal court, seeking an injunction barring Harris from seeking Schedule B to its Form 990. Today, following a full trial on the merits, Federal Judge Manuel Real granted AFP’s motion and issued a permanent injunction against the Attorney General. Judge Real’s opinion deserves to be read in its entirety; here it is:

2016-04-21 Order for Judgment [Dckt 184_0]

The court found that AFP’s donors had a reasonable apprehension of physical violence if their identities were released to liberals:

During the course of trial, the Court heard ample evidence establishing that AFP, its employees, supporters and donors face public threats, harassment, intimidation, and retaliation once their support for and affiliation with the organization becomes publicly known. For example, Lucas Hilgemann, Chief Executive Officer of AFP, testified that in 2013, the security staff of AFP alerted him that a technology contractor working inside AFP headquarters posted online that he was “inside the belly of the beast” and that he could easily walk into Mr. Hilgemann’s office and slit his throat. (Hilgemann Test. 2/23/16 Vol. I, p. 57:2–14). That individual was also found in AFP’s parking garage, taking pictures of employees’ license places. (Id. at 57:15–23). Another witness and major donor, Art Pope, testified about an AFP event in Washington D.C. in 2011. Mr. Pope testified that after protestors attempted to enter the building and disrupt the event, they began to push and shove AFP guests to keep them inside of the building. (Pope Test. 2/24/16 Vol. II, p. 47:7–15). Mr. Pope attempted to help a woman in a wheelchair exit the building; however the protestors had blocked their path. (Pope Test. 2/25/16 Vol. I, p. 21:20–22:12). Once they finally exited the building, they still had to go through a hostile crowd that was shouting, yelling and pushing. (Id. at 22:22–23:2). At another event in Wisconsin, after speaking to a crowd of AFP supporters, Mr. Hilgemann was threatened by a protestor who used multiple slurs and spit in Mr. Hilgemann’s face. (Hilgemann Test. 2/23/16 Vol. I, p. 48:12–49:15). Again, at another event in Michigan where an AFP tent was set up, several hundred protestors surrounded the tent and used knives and box-cutters to cut at the ropes of tent, eventually causing the large tent to collapse with AFP supporters still inside. (Id. at 50:16–51:25).

The Court also heard from Mark Holden, General Counsel for Koch Industries, who testified that Charles and David Koch, two of AFP’s most high-profile associates, have faced threats, attacks, and harassment, including death threats. (Holden Test. 2/23/16 Vol. II, p. 30:17–35:13). Not only have these threats been made to the Koch brothers because of their ties with AFP, but death threats have also been made against their families, including their grandchildren. (Id. at 31:3–10). Mr. Pope has faced similar death threats due to his affiliation with AFP and has even encountered boycotts of his nationwide stores, Variety Wholesalers. (Pope Test. 2/24/16 Vol. II, p. 22:8–15, 29:5–17). In December 2013, about 130 protestors picketed in front of his stores, in part, because of his affiliation with AFP. (Id. 32:24–33:2). As a result of these boycotts, threats, and exposure, Mr. Pope testified that he considered stopping funding or providing support to AFP . (Id. at 50:1–3).

The Court can keep listing all the examples of threats and harassment presented at trial; however, in light of these threats, protests, boycotts, reprisals, and harassment directed at those individuals publicly associated with AFP, the Court finds that AFP supporters have been subjected to abuses that warrant relief on an as-applied challenge. And although the Attorney General correctly points out that such abuses are not as violent or pervasive as those encountered in NAACP v. Alabama or other cases from that era, this Court is not prepared to wait until an AFP opponent carries out one of the numerous death threats made against its members.

Death threats from liberals are, unfortunately, part of today’s political landscape. The court rejected Kamala Harris’s crocodile-smile assurance that her office would keep the names and addresses of AFP donors confidential:

A final argument to consider by the Attorney General is that its office is only seeking disclosure of AFP’s Schedule B for nonpublic use and therefore there is no potential for public targeting of private donors; however, the Attorney General’s inability to keep confidential Schedule Bs private is of serious concern. In its previous order remanding this case, the Ninth Circuit found that “plaintiffs [] have raised serious questions as to whether the Attorney General’s current policy actually prevents public disclosure.” Americans for Prosperity Found., 809 F.3d at 542. As made abundantly clear during trial, the Attorney General has systematically failed to maintain the confidentiality of Schedule B forms.

The federal court’s permanent injunction against California’s Attorney General is a strong rebuke, but it is just one battle in a long war. The Democrats will be undeterred. They realize that they don’t do well in debate, so they want to win arguments the Leninist way: by jailing, or using mobs to harass, those who disagree with them. The fight for free speech will go on as long as liberals think they may be able to shut it down.

I suppose it is too late to point out that Republican presidential primary voters should choose a candidate who will actually win, thereby preventing Hillary Clinton from appointing federal judges who will do away with the First Amendment, along with the Second. Those pesky Constitutional provisions are so inconvenient for Democrats!

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