Public disclosure of the names and addresses of signers of referendum petitions does not violate the First Amendment, the U.S. Supreme Court ruled on Thursday.
The justices, voting 8-1, rejected a broad challenge to the state of Washington's Public Records Act in a case stemming from a referendum on a state law that extended benefits to same-sex couples.
Writing for the majority in Doe v. Reed, Chief Justice John Roberts Jr. said public disclosure of referendum petitions in general is "substantially related to the important interest of preserving the integrity of the electoral process."
However, while rejecting the broad First Amendment challenge, the majority held open the possibility that the groups seeking anonymity in this particular case could press a narrower challenge. They could try to show, Roberts said, that the state law is unconstitutional as applied to their particular situation in which they claim that disclosure would subject them to harassment, threats or reprisals.
Washington state Attorney General Robert McKenna, who argued the case, said in a statement, "This is a good day for transparency and accountability in elections -- not just in Washington but across our country." Washington's secretary of state, Sam Reed, added, "Even as we welcome today's ruling, I understand privacy concerns in the Internet era and the desire to participate in our initiative and referendum process without fear of harassment or retaliation. We have a long history of debating and voting on some very difficult and personal issues in a civil way, and I believe we will continue to do so."
In mid-2009, Washington enacted a law expanding the rights of state-registered domestic partners. Protect Marriage Washington initiated a petition drive and submitted enough signatures to get a ballot referendum on the law. The petitions contained the printed name, signature, home address, county and optional e-mail address of each signer.
After the petitions were submitted, several supporters of the law sought the names and addresses of the petition signers and a supporting organization indicated it would publish that information on the Internet. The state public records law authorizes disclosure of government documents, including referendum petitions.
Two signers of the petition and an organization seeking repeal of the same-sex benefit law sought an injunction against publication of the information because, they claimed, it violated the First Amendment rights of the signers. A district court approved the injunction and the 9th U.S. Circuit Court of Appeals reversed.
In analyzing the Doe challenge, Roberts said the Court's precedents considering First Amendment challenges to disclosure requirements in the context of elections have reviewed them using "exacting scrutiny." That standard, he said, requires a substantial relation between the disclosure requirement and a sufficiently important governmental interest.
Roberts said public disclosure not only helps the state to combat fraud but also promotes transparency and accountability in the electoral process. Typical referendum petitions, he said, concern tax policy, budget, revenue and other issues.
"Voters care about such issues, some quite deeply," he said, but there was no evidence rebutting the state's arguments that "only modest burdens" are imposed by disclosure of typical referendum petitions.
Justices Samuel Alito Jr. and Sonia Sotomayor wrote separate concurring opinions in which they took strong differing views of how the lower courts should handle a narrower, as-applied challenge. Alito said the burden of proof should be low, and he argued that the challengers in this case have a "strong argument" that the public records law violates the First Amendment as applied to the same-sex petition. Sotomayor, joined by justices John Paul Stevens and Ruth Bader Ginsburg, wrote that the challengers should bear a "heavy burden" and courts should be "deeply skeptical" of arguments favoring anonymity.
Stevens, in a separate concurrence joined by Justice Stephen Breyer, said an as-applied challenge to a law like the one in Doe could succeed only where there is a "significant threat of harassment" directed at the petition signers that cannot be mitigated by law enforcement measures.
Justice Antonin Scalia, concurring in the judgment, said signing a petition is an act of legislating because it has a government effect, and does not fit within "the freedom of speech" at all. "Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed," he said.
The lone dissent came from Justice Clarence Thomas. He wrote that a disclosure requirement must pass strict constitutional scrutiny -- it must be narrowly tailored to serve a compelling state interest. The state's public records law, he said, fails that test.
The Doe challengers' counsel, James Bopp Jr. of Bopp, Coleson & Bostrom in Terre Haute, Ind., said in a statement, "While we wish the Court had agreed with us and found that petition signers speaking on any issue should be protected from having personal information disclosed to the public, we are looking forward to returning to Washington and showing the Court that supporters of traditional marriage should have their personal information protected from disclosure. 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."
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