Congress, Constitutional Law, Free Speech, Politics

The Ninth Circuit Rules That There is no Chilling Effect in Forcing GOP Leaders to Hand Over Phone Records to Democrats

There is an important ruling out of the United States Court of Appeals for the Ninth Circuit this week where a divided panel held that Kelli Ward, the Chair of the Arizona Republican Party and former senatorial candidate, cannot withhold her cell phone records from the January 6th Committee. The impact on political speech could be not just chilling but glacial.

The court’s order denied Ward’s request to enjoin T-Mobile from providing her records to the Jan. 6 committee. What is striking about the ruling is the sweeping language employed by Judges Barry Silverman and Eric Miller. I do not view this as a partisan ruling but rather have concern over the dismissive character of the analysis over legitimate concerns raised by the forced disclosure of political associations under the First Amendment.

The J6 Committee issued a sweeping subpoena that previously encompassed even “Ward’s patient information.” However, it is her political associations that raised red flags.

The Supreme Court has repeatedly stressed that such demands for associational contacts are to be subject to “exacting scrutiny.” Americans for Prosperity Found. v. Bonta (APF), 141 S. Ct. 2373 (2021). The reason is the chilling effect on the key right “to associate with others for the common advancement of political beliefs and ideas.” Kusper v. Pontikes, 414 U.S. 51, 56 (1973). In her dissent to Americans for Properity Foundation, Justice Sonia Sotomayor acknowledged that the decision  “presumes . . . that all disclosure requirements impose associational burdens.”

That was not evident in the majority opinion:

There is little to suggest that disclosing Ward’s phone records to the Committee will affect protected associational activity. Unlike the regulation at issue in Americans for Prosperity Foundation, which required organizations to reveal their major donors, this subpoena does not target any organization or association. The investigation, after all, is not about Ward’s politics; it is about her involvement in the events leading up to the January 6 attack, and it seeks to uncover those with whom she communicated in connection with those events. That some of the people with whom Ward communicated may be members of a political party does not establish that the subpoena is likely to reveal “sensitive information about [the party’s] members and supporters.” Americans for Prosperity Found., 141 S. Ct. at 2384. Grand juries—and, for that matter, civil litigants—routinely employ subpoenas for phone records, and any such subpoena necessarily reveals something about a person’s associations. We do not read Americans for Prosperity Foundation as establishing that all of those subpoenas are subject to First Amendment scrutiny.

To prevail, Ward must therefore identify some reason to think that compliance with this subpoena will burden association. The district court found that there is “no evidence to support [the] contention that producing the phone numbers . . . will chill the associational rights of Plaintiffs or the Arizona GOP,” and it determined that Ward’s arguments to the contrary are “highly speculative.” . . .

That is quite sweeping. It seems axiomatic that the forced disclosure of associational contacts with the head of the state Republican party will have an associational burden. The subpoena had the classic “fishing expedition” scope, including originally encompassing medical information.

The Court simply dismisses such obvious concerns and says “[b]ecause there is no indication that the compelled disclosure in this case would deter protected associational activity, the exacting scrutiny standard does not apply.” The court goes on to say that, if the standard applied, it would not make any difference because of the need to investigate “the causes of the January 6 attack and protecting future elections from similar threats.”

The majority also relied on an adverse implication rationale used in civil proceedings when someone invokes the Fifth Amendment’s Privilege Against Self-Incrimination, an inference that has long undermined this core constitutional right:

When the Committee sought to question her about those activities, she invoked the Fifth Amendment and refused to answer. In this civil proceeding, it is appropriate to draw adverse inferences from her assertion of the Fifth Amendment privilege—namely, that Ward’s conduct during the period in question went beyond simple discussions with her political associates, and that those with whom she communicated might have the information about her activities that she refused to provide. See Baxter v. Palmigiano, 425 U.S. 308, 318 (1976).

The dissent notes that the Committee was not compelled to supply any specific basis for believing that Ward encouraged or participated in the riot: “the Committee has not provided any evidence or plausible reason to believe that Ward’s contacts (whether political associates, family, or friends) were involved in the events of January 6 or explain why information about her communications has any bearing on the Committee’s investigation.”  Instead, the majority relies on Ward’s use of her constitutional right to remain silent.

This does not exonerate Ward for any role that she may have had in this riot. However, the dissent noted that the lack of balance raises serious constitutional concerns over the analysis of the court:

Regardless of Ward’s position regarding the 2020 election, her right to engage in discussions with her political associates remains entitled to First Amendment protection against the government’s compelled disclosure of her political affiliations. Maj. op. at 6–7. We must be vigilant to protect First Amendment rights—even when raised by an individual alleged to have engaged in a nefarious “scheme,” Maj. op. at 6—because “[t]he weakening of constitutional safeguards in order to suppress one obnoxious group is a technique too easily available for the suppression of other obnoxious groups to expect its abandonment when the next generally hated group appears,” Communist Party of the U.S. v. Subversive Activities Control Bd., 367 U.S. 1, 166 (Black, J., dissenting). Because the majority has applied an erroneous legal framework, and the Wards’ claim that the Committee’s subpoena burdens Kelli Ward’s First Amendment rights at least raises a serious question on the merits, I dissent.

I agree that there is a compelling legislative and public interest in the investigation. That is why, while strongly disagreeing with the make up and approach of the J6 Committee, many of us still supported the investigation.  Yet, that clear interest does not wipe away all countervailing constitutional considerations as the Democrats demand the political  records and contacts of their political opponents.

111 thoughts on “The Ninth Circuit Rules That There is no Chilling Effect in Forcing GOP Leaders to Hand Over Phone Records to Democrats”

  1. “The impact on political speech could be not just chilling but glacial.”

    That’s not a bug; it’s a feature.

  2. I saw the headline, which contains a lie, and didn’t bother to read the tripe that followed. Turley: the January 6 Committee is NOT ALL Democrats, so the records are being turned over to a BIPARTISAN group. This is just another example of how you and your employer feed lies to the disciples. To downplay the outrageousness of the orange idiot who caused the first insurrection in our history, and all because he’s not man enough to admit he lost, Fox accuses the Committee of being all “Democrats” and being completely partisan. MOST of the witnessess were Trump officials–not Democrats. This sort of conduct is beneath someone purporting to be qualified to teach law. I am ashamed for you.

      1. Confront me with any facts I got wrong, or just admit that you are just a starry-eyed disciple of a crook and a liar.

        1. Gigi,
          I have repeatedly given you long detailed lists of facts you got wrong.
          Your response has been crickets.

    2. Ah, the first sign of an irrational mind is ad hominem attacks. Bipartisan? Nah. When Pelosi removed McCarthy’s appointees – for the first time in history – and put in Cheney and Kinzinger. Why? Because they shared her hatred for DJT. The entrance of the capitol was not an insurrection. First, they were unarmed. It is impossible to be an insurrectionist lacking the ability to backup your actions (see Harper’s Ferry). Second, the magnetically sealed very heavy doors can only be opened from the inside and so they were. As for insurrection, the proper title for the euphemistically called Civil War is “The Democratic Insurrection”. As for presidents that were complicit in this insurrection see De Pierce who set it up with the Kansas-Nebraska Act along with Dem Sen. Stephen Douglas and Dem Buchanan who did nothing while his fellow Dems took over federal installations and included firing upon the unarmed civilian ship “Star of the West” hired to resupply Ft. Sumter in 1/1861. Moral of the story is simple. You and your fellow travelers need to look at yourselves and what is driving you to continue to spread lies. Frankly, it is a very sad person who refuses to seek the truth in any matter.

    3. The J6 committee is ALL hand picked by Pelosi to get to a specific end.

      The committee is OBVIOUSLY highly partisan. What it is not, is entirely democrat.

        1. How would their be rebutal witnesses ? The left controls everything.

          There is a Reason Trump was subpeonad as they are closing shop.
          The last thing the J6 committee wants is to give Trump 3hrs of prime time to rebut and rebuke them.

    4. We have had myriads of examples of DEMOCRATS abusing government power for partisan purposes – Schiff was secretly subpeonaing the phone records of republican congressmen in the Collusion Delusion probe.

      Gigi – as you ponder whether this is a good idea – you should remember that barring a miracle – and democrats do not beleive in miracles. Republicans are likely to control both the house and senate in a few weeks.

      Please, no whining from you as republicans in the house and senate egregiously abuse the rights of democrats throughout the country.

      I know this is impossible for you. But I would ask you to TRY and think about whether these are powers you want your political enemies to have,
      rather than whether these are powers you want your political allies to have ?

      The powers of congress are oversight of the executive and judiciary, and legislation.

      They have no power over private individuals. nor of states or state governments.

      The J6 committee is actively seeking to out do the HUAC – House Un American Committee of the 50’s in vile political conduct.

    5. You cannot be a graduate of any school teaching the English language, like elementary school nor junior high school, certainly not any law school.
      Go Study at a 3-6th grade elementary school, then jump to a school teaching American Jurisprudence. The best to you.

    6. You amuse me. Not even worth it to rebut your ludicrous claims, except the one about the good professor’s conduct. You’re so off base on that one. Seems liberals continue to be unable to write a comment without invoking Fox’s name, yet you ignore all the lies of MSDNC.

    1. I have to wonder… how frequently does the 9th circus [sic] get it wrong?
      What can SCOTUS do to correct their incompetence?

      -G

  5. These people are losing credibility with the public by the second. They know it. They do not care. Two reasons: 1. They believe themselves to be untouchable. 2. They are psychopaths.

  6. I’d tell the judge, if there’s no reason why I can’t turn over my phone records, there’s no reason you can’t turn over your records. I’ll turn mine over to the J6 Committee when you turn your records over to me. While you’re at it, please order all the members of the J6 Committed to give me their records, too.

  8. But the committee was not interested in the phone record of Ray Epps? Nor do they even care to identify “scaffold man” who is exhorting the crowd to go in to the Capitol through a bullhorn. Unmasked, yet people with masks who were merely on the grounds have been identified and raided? Please visit the site j6deleted.com and see the extensive evidence that was erased by Twitter–starting that very day while the riot was in progress. (A tweet observing that the initial breach was effected before the crowd leaving Trump’s speech had arrived at the Capitol grounds was immediately deleted.)

  10. You’re either secure in your person and papers or you’re not. If they can’t supply any reason other than prior use of the 5th, they shouldn’t be allowed to ransack her phone records.

  11. This is what communist regimes do ….this is how the fascist Wokecomms operate.
    They’re persecuting their political enemies…. it’s quite simple Jonathan lays out all the pieces but he doesn’t put the puzzle together probably because of his moral relativism.

  12. “CHILLING EFFECT”

    “ABSOLUTELY NO TEETH”

    “SYMBOLIC FREEDOM”
    ____________________

    “Is There Freedom of Speech in China?”
    “Only symbolically.”
    Brian Palmer, Oct 08, 2010

    The Norwegian Nobel Committee awarded this year’s Nobel Peace Prize to Chinese dissident Liu Xiaobo, a democracy advocate currently in prison for seditious speech. The committee also took a shot at China, calling the government, “in breach of … its own provisions concerning political rights.” Do Chinese citizens have a right to free speech? Not really. Article 35 of the Chinese constitution promises the right to “freedom of speech, of the press, of assembly, of association, of procession and of demonstration.” But the provision has absolutely no teeth. For one thing, the constitution also prohibits doing anything contrary to state interests, which seems to include dissent. Second, and more fundamentally, the rights enumerated in the Chinese constitution are not enforceable unless the national legislature makes them so by passing a supplementary law. The ruling Communist Party can violate Article 35 with impunity, because the courts won’t apply it against the government. (There is no Chinese equivalent of Marbury v. Madison.) There was a brief moment in the last decade when many observers felt the situation might be changing. In 1990, a student’s identity and test scores were stolen by a classmate, who used them to get into college. Eleven years later, the Supreme People’s Court ruled that the thief violated Qi Yuling’s constitutional right to an education. It was the first time the court had suggested that a citizen could avail herself of a constitutional right. Then, in 2002, new Prime Minister Hu Jintao advocated going even further and turning the constitution into a Western-style guarantor of individual liberties. Sensing increasing liberalization inside the Communist Party, dissidents became more audacious. The movement culminated in 2008, when Liu Xiaobo published a set of democratic and human rights reform proposals with the support of 300 prominent intellectuals. The move was too bold. Liu was arrested the day before his “Charter 08” went public, and the People’s Supreme Court withdrew the Qi ruling 10 days later. After a year of detention, Liu was charged with “inciting subversion of state power.” Liu’s trial lasted two hours, which is actually an eternity by Chinese standards. Dissident Tan Zuoren was convicted on the same charge in just 10 minutes. Not every Chinese dissident who speaks out of turn winds up in jail. Other penalties include a stern rebuke, losing your job, brief detention, or re-education through labor. (It sounds bad, but it’s really just extrajudicial imprisonment for a maximum of three years.) In defense of their habit of prosecuting dissidents, Chinese officials might argue that the United States also limits free speech. The U.S. Supreme Court has carved out exceptions to the First Amendment for incitement to crime, causing panic, and, in limited cases, sedition. The primary difference is that U.S. courts are more independent of the ruling party, and the laws restricting speech are generally too specific to be used as political weapons.
    ______________________________________________________________________________________________________________________________________________________

    China has a “constitution” which is not supported by its Supreme Court (i.e. General Secretary).

    America has a Constitution which is not supported by its Supreme Court (i.e. Corrupt Justices).

    Had the U.S. Supreme Court fulfilled its sworn oath and supported the Constitution after Marbury v. Madison, there would be no communist, illegal alien, hyphenate, foreign invader, dependent and parasite takeover today.
    ________________________________

    Taney Tried

    “The clause in the Constitution which authorizes the suspension of the privilege of the writ of habeas corpus is in the ninth section of the first article. This article is devoted to the Legislative Department of the United States, and has not the slightest reference to the Executive Department.”

    “I can see no ground whatever for supposing that the President in any emergency or in any state of things can authorize the suspension of the privilege of the writ of habeas corpus, or arrest a citizen except in aid of the judicial power.”

    “I have exercised all the power which the Constitution and laws confer on me, but that power has been resisted by a force too strong for me to overcome.”

    – Chief Justice Roger B. Taney, May 28, 1861
    ____________________________________

    The Constitution would have been fully implemented and immigration law would have been comprehensively adhered to. The the irresolute, dastardly, obsessive-compulsive, bleeding-heart liberals and the economically suicidal environmental wackos would be slavering in their basements, not running the country.

    Americans would enjoy the freedoms of speech, press, assembly, privacy, etc., and be totally and absolutely free, but of that governance which prevents property damage and bodily injury, including, but not limited to, absolute private property, free enterprises, industries and markets, equity completely bereft of the unconstitutional bias of affirmative action, quotas, forced busing, unfair “fair housing” laws and discriminatory “non discrimination” laws, no minimum wage, no rent control, no regulation of anything other than the value of money, commerce among the States (to preclude favor by one over another), and land and naval Forces, and no taxation for the unconstitutional welfare state’s social security, medicare, Obamacare, public housing, WIC, SNAP, TANF, HAMP, HARP, TARP, HHS, HUD, EPA, Agriculture, Commerce, Education, Labor, Energy, etc.

    The Constitution gave Americans freedom.

    The Supreme Court, by dereliction and omission, took it away.

  14. Quite a few folks here missing the scariest part of Turley’s blog, particularly when he quotes the Ninth:

    “When the Committee sought to question her about those activities, she invoked the Fifth Amendment and refused to answer. In this civil proceeding, it is appropriate to draw adverse inferences from her assertion of the Fifth Amendment privilege…”

    The Ninth is effectively saying if a citizen asserts a right, they must be guilty. That’s the message.

    1. The 9th also said in the Morgan Hill flag t-shirt case that students could be suspended for wearing US flag t-shirts if an administrator says so. After the basis for the suspension was threats made AGAINST the students wearing the shirts; students making the threats were left alone.

    2. The Supreme Court made that distinction. In a CIVIL case invoking the 5th CAN be used against you as an assumption of guilt. In a CRIMINAL case it cannot. It was the Supreme Court that set the precedent. The ninth is just following it.

      1. Weren’t cell phone records covered by the Church Committee? Unfortunately, due to the passage of time, my recollection may no longer be very accurate, but I believe it was viewed as a 4thAmt issue at the time, rather than a First Amt. And how can the J6 Committee constitute Due Process since its makeup does not conform to the given requirements?

        2. The J6 committee could never constitute due process.
          It is not a legitimate criminal investigative body.

          It is highly unlikely that the courts will interfere with the J6 committee beyond the strong probability that they will require Congress to go to court to enforce a subpeona. It is not likely the courts will ultimately find violating a congressional subpeona to be criminal contempt without going to court FIRST to enforce it.

          There is lots wrong with the J6 committee, but each chamber of congress is free to make its own rules. Those can be blatantly partisan.

          The manner the J6 committee was constructed was stupid. It violated tradition, and it arguably violated the house rules that democrats enacted.
          But the courts are not going to intervene in that.

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