One of the hot new trends in litigation this year is fear. Witnesses in important gay-rights cases have claimed they were too afraid to testify because they feared they would be subject to reprisals for their views. It’s one thing to hear this kind of talk from eyewitnesses in gang shootings. But now it has become a common complaint among opponents of gay rights who say they are afraid to take part in civic life.
Concern about witness intimidation was the reason offered in January for the last-minute decision to unplug TV cameras in California’s landmark fight over Prop 8—the state referendum to ban gay marriage. Before the trial began, presiding judge Vaughn Walker had said he would allow a limited video feed of the proceedings, possibly including a YouTube broadcast. Pro–Prop 8 activists opposed the move and the U.S. Supreme Court quickly weighed in with an unsigned 5–4 opinion, scolding the federal courts for the video project because supporters of California’s gay-marriage ban had been subject to death threats, had their cars egged, and had faced retaliation after their support for the initiative was disclosed on the Internet. The conservative majority of the court sympathized with the anti-gay-marriage witnesses even though, as Justice Stephen Breyer pointed out in dissent, these terrified witnesses were “experts or advocates who have either already appeared on television or Internet broadcasts.” The trial went dark.
In mid-January, when the supporters of Prop 8 cut their witness list from six to just two, they again said that their witnesses were too afraid to testify. Andrew Pugno, from the organization Yes on Prop 8, explained that they were afraid “that as others have, that they will be targeted for retaliation, both professionally and personally.” On June 16, during closing arguments, when Judge Walker called into doubt the qualifications of the only witness who argued that gay marriage could be harmful, it became evident that one cannot put on a case if the bulk of your witnesses are too frightened to take the stand. (A final decision is expected within weeks.)
This spring the Supreme Court heard another case involving frightened citizens in Washington state. They had successfully campaigned to put a referendum on the ballot that would have allowed voters to reverse a state law granting certain benefits to domestic partners. After the measure was defeated, the group that pushed for it asked the Supreme Court to keep the 138,000 signatures on the ballot petitions private. Their argument was based heavily on the harassment suffered by proponents of California’s Proposition 8. James Bopp, who argued for the ballot signatories, warned the court that gay-rights activists planned to post the names of anyone who had signed a petition on the Internet. Bopp told the court during oral arguments that the fear was very real: “The campaign manager of this initiative had his family sleep in his living room because of the threats.”
While he acknowledged that threats of violence and hate mail can be scary, Justice Antonin Scalia dismissed concerns that one’s political opponents are just a mouseclick away from hunting you down as “touchy-feely, oh-so-sensitive” and warned that “you can’t run a democracy this way, with everybody being afraid of having his political positions known.”
The same folks who oppose making signatures public are waging a war to do away with campaign-finance rules that would require disclosing the names of campaign donors. They argue that all such moves expose contributors to intimidation. Justice Clarence Thomas agreed in a concurring opinion in the court’s blockbuster campaign-finance case: “I cannot endorse a view of the First Amendment that subjects citizens of this Nation to death threats, ruined careers, damaged or defaced property, or pre-emptive and threatening warning letters as the price for engaging in ‘core political speech,’” he wrote.
Putting aside questions we cannot answer—how serious are these threats and how much has the Internet made us vulnerable to them?—the one we must answer is whether arguments that citizens are too frightened to testify, sign petitions, or contribute to political campaigns are in themselves bad for our legal and political system. Justice Scalia thinks so: “The fact is,” he warned in the Washington case, “running a democracy takes a certain amount of civic courage.” Timid citizens are likely to get a kind of democracy and justice that is neither democratic nor just.