homophobic church persuades appellate court to overrule protest-related sanctions award

by Tim Phillips

In November 2008, a subdivision of the activist group Bash Back! disrupted a Sunday service at Mount Hope Church in Lansing, Michigan. Some of the protesters chanted and threw pamphlets, glitter, and condoms in the air. According to a Ninth Circuit Court of Appeals opinion filed yesterday,

The record is not entirely illuminating on the explicit motivations of Bash Back! against Mount Hope Church. However, the Church promoted anti-gay beliefs, and so Bash Back! was retaliating by “bashing back” at the church.

Mount Hope subsequently sued Bash Back!, Bash Back! Lansing, and 14 activists, but those sued all refused to name others who participated in the protest. As part of a settlement, the 14 activists agreed to a permanent injunction preventing them from disrupting any religious services in the U.S. They also agreed to pay the church $2,750 in damages. The district court entered a default judgment against Bash Back! and Bash Back! Lansing, and closed the case.

Yesterday’s Ninth Circuit opinion dealt with a subpoena Mount Hope had issued to Riseup Networks, in an attempt to obtain the names of 7 email account holders who the church believed either participated in the action or knew who did. Initially the district court imposed more than $28,000 in sanctions against the church for subpoenaing First Amendment protected information. But yesterday the Ninth Circuit overruled the district court, stating that even though the subpoena was ultimately deemed unwarranted, Mount Hope “could reasonably assert” at the time it was issued that the First Amendment privilege didn’t invalidate it.