For the second time in a week, the Supreme Court on Friday grappled with the Internet-age clash between public disclosure and privacy in the context of anti-gay rights ballot initiatives.
The Court on Friday afternoon announced it was granting review in five new cases, including Doe#1 v. Reed, a case from Washington state asking whether that state's public records disclosure law violates the privacy rights of voters who signed petitions to launch a referendum aimed at overturning a law allowing same-sex domestic partnerships. Sponsors of the ballot initiative went to court to keep the names from being posted on the Internet, claiming that would violate their right to anonymous speech and would subject signers to threats and harassment.
James Bopp Jr., lawyer for Protect Marriage Washington, which brought the suit, said Friday afternoon in a statement, "We are pleased that the Supreme Court has agreed to hear this case that seeks to protect the rights of citizens who support a traditional definition of marriage to speak freely and without fear. No citizen should ever worry that they will be threatened or injured because they have exercised their right to engage in the political process. The First Amendment protects citizens from being required to disclose their identity when they are engaged in political speech."
At the district court level, the sponsors won an injunction against release of the names, but the 9th U.S. Circuit Court of Appeals reversed. On appeal to Justice Anthony Kennedy, who handles emergency matters from the 9th Circuit, the Court said the injunction would remain in place pending filing of a formal appeal to the Supreme Court. That's what the high court acted on Friday. The case may be argued in April, with a decision likely by the end of June.
The Washington case has parallels to the dispute that went to the Supreme Court last week over broadcast of the San Francisco trial on the Proposition 8 ballot initiative in California that banned same-sex marriage there. In that case, as with the Washington state dispute, opponents of gay marriage asserted that publicity about their identities would subject them to harassment and threats. The high court, in halting the broadcast plans by a 5-4 vote, sympathized with that assertion, stating that "applicants have demonstrated the threat of harm they face if the trial is broadcast."
More generally, the Court has also recognized the right of privacy and anonymity in several contexts. In the landmark NAACP v. Alabama in 1958, the Court said the civil rights group could not be compelled to release its membership lists, in the interest of protecting the First Amendment right of association. In McIntyre v. Ohio in 1995, the Court said those circulating campaign literature could not be compelled to identify themselves to the state.
Also on Friday, the Court indicated it would hand down opinions next on Jan. 20, raising hopes that it might finally hand down the long-awaited Citizens United v. Federal Election Commission decision on campaign finance restrictions.
This article first appeared on The BLT: The Blog of Legal Times.