SeattlePI.com
June 24, 2010
By Chris Grygiel
Justices ruled 8-1 in a case called Doe V. Reed. Only Justice Clarence Thomas dissented. They heard oral arguments in Washington, D.C., April 28.
The ruling dealt broadly with claims by foes of the new gay rights law that disclosing their names would violate their First Amendment rights. However the justices said the plaintiffs could go back to a lower court to try to get a specific exemption on other grounds – and the chief lawyer for people who signed the Referendum 71 petitions said he would do so.
Washington state officials praised the decision.
“This is a good day for transparency and accountability in elections–not just in Washington but across our country,” Washington Attorney General Rob McKenna said. “We’re pleased the Supreme Court ruled in favor of disclosure, upholding the public’s right to double-check the work of signature gatherers and government — and giving them the ability to learn which voters are directing the state to hold an election on a new law. Citizen legislating is too important to be conducted in secret.”
Secretary of State Sam Reed welcomed the ruling, too. But he said he understood the privacy conncerns “in the Internet era and the desire to participate in our initiative and referendum process without fear of harassment or retaliation.”
“I will continue to speak out for civility in our citizenship and will firmly insist that petition signatures not be used in a threatening or inappropriate way,” Reed added.
The conservative group that tried to block release of the signatures wanted the nation’s high court to uphold a lower court ruling that said signing petitions and referendum is constitutionally protected political speech – which by law is OK to engage in anonymously.
Protect Marriage Washington asked justices to shield the names of the 138,000 people who signed R-71 petitions in hopes of overturning the “everything but marriage” same-sex domestic partner law. In November Washington voters upheld the new statute. Gay rights groups have said they’ll post the petition signers’ names online, and some fear harassment or threats if their names are revealed.
State officials had said there are laws in place to protect people who might be threatened. When people sign petitions or referendums they are acting as legislators, McKenna said, because they are trying to enact or change laws.
Gary Randall of the Faith and Freedom Network said in an e-mail that plaintiffs will go back and seek an exemption for R-71 signers.
“The names cannot be released to the homosexual activists immediately,” Randall wrote. “This matter is not settled yet.”
‘Transparency and accountability’
Writing for the majority, Chief Justice John Roberts said it is vitally important that states be able to ensure that signatures on referendum petitions are authentic.
“Public disclosure thus helps ensure that the only signatures counted are those that should be, and that the only referenda placed on the ballot are those that garner enough valid signatures,” Roberts said. “Public disclosure also promotes transparency and accountability in the electoral process to an extent other measures cannot.”
Justice Clarence Thomas dissented from the court’s opinion.
“In my view, compelled disclosure of signed referendum and initiative petitions under the Washington Public Records severely burdens those rights and chills citizen participation in the referendum process,” Thomas said.
The decision could have far-reaching impacts, not just on the state’s initiative and referendum process, but also for other “open government” laws like the disclosure of who contributes to political campaigns, and how much they give. Legal scholars nationwide followed the case.
In September U.S. District Court Judge Benjamin Settle ruled that releasing the petition names would violate those people’s constitutional rights. Settle said the petition signers were engaging in political speech – which people are allowed to conduct anonymously under the First Amendment.
However in October 9th U.S. Circuit Court of Appeals overruled Settle, saying signing a petition in public is not an anonymous activity and people should recognize that other petition signers could see their names and government officials will be verifying their identity.
The Supreme Court stayed that decision.
One of the attorneys for the group seeking to keep the names private, James Bopp, Jr., had said people have a right to participate in the political system without the government compelling them to identify themselves.
Bopp, the general counsel for the Indiana-based James Madison Center for Free Speech, said it’s appropriate for governments to check and make sure initiative and referendums have enough signatures to qualify for the ballot, but releasing that information to the public would violate people’s rights.
McKenna said Washington has a liberal public disclosure law and that most people in the state want access to records to keep government in check.
Roberts said that the court’s opinion deals with whether disclosure of the names on referendum petitions as a whole violates the First Amendment, not solely the case brought by Protect Marriage Washington.
The intimidation that anti-gay rights supporters fear is not present in other referendum issues like tax policy, revenue, budget or other state law issues, Roberts said. “Voters care about such issues, some quite deeply – but there is no reason to assume that any burdens imposed by disclosure of typical referendum petitions would be remotely like the burdens plaintiffs fear in this case,” he said.
The chief justice added that Protect Marriage Washington could go back to the lower courts and try again on their specific concern in hopes of getting an exemption. “Upholding the law against a broad based challenge does not foreclose a litigant’s success in a narrower one.”
Daniel P. Tokaji, an expert in election law at The Ohio State University Moritz College of Law, said in a statement the State of Washington “has won this battle, but not yet the war.”
“…opponents of Washington’s domestic partnership law can still make the narrower argument that, in this particular case, disclosing the petitions would violate the constitutional rights of those who signed them,” Tokaji said.
Bopp said he would return to the U.S. District Court in Washington state to try to shield the names from the public.
“Supporters of traditional marriage have been subject to death threats, vandalism, and even the loss of their jobs merely for exercising their right to free speech,” he said in a statement. “We are confident that the District Court will agree that these tactics have no place in the discussion of marriage and will prevent the release of the personal information on those who support traditional marriage.”
One Comment
Justice Thomas may be correct that this ruling will make people think twice before signing a petition. Maybe that’s a good thing. But regardless of all that, the question on the floor was whether or not petitioner identity disclosure is a violation of the first amendment. And it seems fairly clear that in general, it is not. It was good of them to allow appeals to be made on a case-by-case basis, though, just in case.
If I may, I’d also like to recommend this video on the topic. It’s very relevant to the case, and provides a range of media perspectives on how the case turned out. In a nation as media-rich as ours, I’d argue it’s equally important to keep a critical public eye on our politicians and our journalists: http://www.newsy.com/videos/high-court-petitions-aren-t-private
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