One of the hottest new trends in litigation is fear. Witnesses in an important gay-rights case claimed they were too afraid to testify because they would be subject to reprisals for their unpopular views. Plaintiffs in another case claimed they're afraid for their very lives if their names are disclosed publicly. Contributors to political campaigns want to shield their names out of fear of death threats.
It's one thing to hear this kind of talk from eyewitnesses in gang shootings. But claims that you are too scared to publicly state your beliefs have become common among opponents of gay rights, especially. Which raises the question: What happens to our civic life when we're all too scared to participate?
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 Proposition 8—the state referendum that banned gay marriage. Before the trial began, federal District Judge Vaughn Walker said he would allow a limited video feed of the proceedings, possibly including a YouTube broadcast. But pro-Prop 8 activists strongly opposed the move, and the U.S. Supreme Court quickly weighed in with an unsigned 5-4 opinion. Scolding the lower court for this video project, the high court sided with the supporters of California's gay-marriage ban, who said they had been subject to death threats, had their cars egged, and experienced professional retaliation after their support for the initiative was disclosed. The conservative majority of the court sympathized with the anti-gay-marriage trial witnesses even though, as Justice Stephen Breyer pointed out in his dissent, these terrified witnesses were "experts or advocates who have either already appeared on television or Internet broadcasts." Still, fear is fear, and the trial went dark.
In mid-January, when the supporters of Prop 8 cut their witness list from six to two, they again said that their witnesses were too afraid to testify. Andrew Pugno, from the organization Yes on Prop 8, explained that these witnesses were afraid "that as others have, that they will be targeted for retaliation, both professionally and personally." Then this past week, during closing arguments in the trial, when Judge Walker called into doubt the qualifications of one of the two remaining witnesses—and the only witness who had testified that gay marriage could be harmful to society—it became plain that it is not possible to argue a case in court when your witnesses are too frightened to take the stand.
This spring, the Supreme Court heard another case involving frightened citizens, this time in the state of Washington, who had successfully campaigned to put a referendum on the ballot that would have allowed voters to reverse a state law granting all-but-marriage benefits to domestic partners. After the measure was defeated, the group that had pushed for it asked the Supreme Court to keep private the 138,000 signatures on the ballot petitions. Their argument about fear of reprisal 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 people who had signed a petition on the Internet and force them into "uncomfortable conversations." Bopp told the court during oral arguments that their fear was very legitimate and 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 and should be addressed by other legal means, Justice Antonin Scalia dismissed Bopp's concern that one's political opponents are just a mouse-click away from hunting you down as "touchy-feely, oh-so-sensitive." An exasperated Scalia warned at oral argument that "you can't run a democracy this way, with everybody being afraid of having his political positions known."
It's clear that some of the conduct in the aftermath of the Prop 8 campaign was inexcusable and genuinely threatening. But it's not at all clear that the lesson that any opponent of gay marriage should take from such incidents is to live in mortal fear for his or her personal safety when speaking in public. And arguments about televising trials, testifying as an expert, or disclosing one's signature on a ballot initiative may just be the thin edge of a greater fear-wedge. Because the same folks who oppose making signatures public are also waging a war to do away with campaign-finance rules that would require disclosing the names of campaign donors. They argue that such regulations expose contributors to brutal intimidation. If that sounds familiar, just have a listen to Justice Clarence Thomas' concurring opinion in the court's blockbuster campaign-finance case, Citizens United: Writing in opposition to disclosure rules, Thomas warned, "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.' "
Put aside the more difficult questions of how serious these threats are and how much the Internet has made us more vulnerable to them. The one question we really should be asking is what these claims—that citizens are too frightened to testify, sign petitions, or contribute to political campaigns—say about the vitality of our legal and political systems. It's not clear that the video blackout of the Prop 8 trial made anyone safer. And most of us were likely more confused and ideologically polarized for having followed the proceedings chiefly on Twitter. Expressing one's opinions requires political bravery, and our systems of governance will not function properly if we are all convinced everyone wants to club us to death for our unpopular views. Scalia certainly agrees: "The fact is," he warned in oral argument in the Washington ballot-initiative case, "running a democracy takes a certain amount of civic courage." Allowing ourselves to become a nation of silent, secretive, timid citizens is likely to result in a system of democracy and justice that is neither very democratic nor very just.
A version of this piece appears in this week's Newsweek.