R-71: Whose privacy?

The Washington case over whether names on ballot issue petitions must be kept private or are public record went to oral argument at the U.S. Supreme Court today. Read through the transcript, and you’ll probably see a leaning toward the public-record side of the debate.

Here are some pieces of the transcript, from the Supreme Court web site. (Should be noted here that it wasn’t just the Washington attorney general’s office putting in an appearance, but AG Rob McKenna making the argument personally, something that doesn’t always happen with state AGs.) What follows is a large chunk of the Q&A with Bopp.

JAMES BOPP, JR., ESQ., Terre Haute, Indiana; on behalf of Petitioners. ROBERT M. McKENNA, ESQ., Attorney General, Olympia, Washington; on behalf of Respondents.

MR. BOPP: Thank you, Mr. Chief Justice, and may it please the Court: No person should suffer harassment for participating in our political system, and the First Amendment protects citizens from intimidation resulting from compelled disclosure of their identity and beliefs and their private associations.
JUSTICE SCALIA: What — what about requiring disclosure of campaign contributions?
MR. BOPP: Well -­
JUSTICE SCALIA: Do you think that is unconstitutional?
MR. BOPP: This Court has upheld the disclosure in Buckley v. Valeo in 1976.
JUSTICE SCALIA: Right. Now, why doesn’t that fall within your principle that no person should be exposed to criticism for -­
MR. BOPP: Well, it could -­
JUSTICE SCALIA: — his political beliefs?
MR. BOPP: It could potentially, and — but this Court subjected those requirements to the appropriate constitutional First Amendment analysis, found that there was sufficiently important governmental interest, some of which are not present when we are talking about a referendum or initiative, and then also created an exception from even a generally valid statute where there is a reasonable probability of harassment of that particular individual or — or group. So the First Amendment analysis regarding the privacy of association, the privacy of identity and beliefs, the potential of — of intimidation, are all elements of the analysis that was employed by the Court in Buckley.
JUSTICE SOTOMAYOR: I’m trying to separate out the harassment aspects of this case from the working proposition that there is some sort of freedom of association of privacy. Your theory, putting harassment aside, would invalidate all of the State laws that require disclosure of voter registration lists, correct? All of those States like New York that permit public review of voter registration lists and party affiliations, et cetera,that’s illegal?
MR. BOPP: No.
JUSTICE SOTOMAYOR: That’s unconstitutional?
MR. BOPP: No. We believe they would not. They would certainly be subject to First Amendment analysis. But in — in those — in the instance of voter registration, there are other governmental interests that are not present in petition signings for referendums.
JUSTICE SOTOMAYOR: Explain to me the difference. And if — well, one other aspect is the legislative. I can only work from New York because I know it intimately, but it is a State that also permits or requires that petitions for candidate listing on the ballot be public as well. New York relies in part, as this State does, on the public reviewing those petitions. Would that be invalid as well for a candidate’s running?
MR. BOPP: Well, we believe it would be subject to First Amendment analysis. But again, there are different governmental interests when you have candidates involved.
JUSTICE SOTOMAYOR: So explain to me what the difference is in those three situations.
MR. BOPP: Well, one is you have candidates involved -­
JUSTICE SOTOMAYOR: With — with the State’s interest.
MR. BOPP: One is you have candidates involved. And this Court recognized in Buckley that there were disclosure interests that related specifically, and actually only, to candidates. For instance, people who contribute to a candidate, that information, to the voter, can signal the interest that the candidate, once he or she takes office, will be responsive to. When we have an initiative, we know what the law is that is being voted upon. It’s not a matter of — of electing a representative.
JUSTICE SOTOMAYOR: You don’t think that -­ putting aside this kind of referendum, just a hypothetical referendum having to do with a certain tax scheme — you don’t think the voters would be interested in knowing what kinds of people in what occupations are interested in that particular tax benefit or not?
MR. BOPP: Well, a few — few might be, but we think this is marginal information. First, they are adopting a law. And so we know what the law is. And – and while it might be marginal information for a few people, once the measure qualifies for the ballot, this is only — the petition signature and distribution is only for a very limited governmental interest. . . .
CHIEF JUSTICE ROBERTS: Now, counsel, the responses you have given to a couple of the questions has been that the First Amendment analysis would apply. But given have you a facial challenge, is that enough? Don’t you have to indicate that the First Amendment analysis would prevail in either all of the other cases, most of the other cases, significant portion? This is a facial challenge. And if the challenge is going to fail in some of those other cases, I think your facial challenge fails as well.
MR. BOPP: Well, we are only challenging the application of the Public Records Act to petitions and referendum petitions. We’re not challenging it as it would be applied to petitions to put people on the ballot.
CHIEF JUSTICE ROBERTS: So we have to decide in assessing your claim that no matter what the referendum issue was, that there’s a significant intrusion on First Amendment rights?
MR. BOPP: Yes.
CHIEF JUSTICE ROBERTS: So that if, for example, the referendum involves a bond issue as to which people may have particular views, but they are not going to get entirely excited about it, we still have to say that that is protected under the First Amendment?
MR. BOPP: Well, actually, under — with modern technology, it only takes a few dedicated supporters and a computer who are willing to map — to put this information on the internet, MapQuest it, as they did with respect to the contributors of Proposition 8 which resulted in — and then encouraged people to harass them, which resulted in hundreds of -­
CHIEF JUSTICE ROBERTS: Well, my point is, though, you are not likely to get that with respect to, you know, a debt issue, raising the debt ceiling from 0.8 percent to 0.9 percent. You are not going to get a crowd outside your house because you signed that petition.
MR. BOPP: Well, it may not manifest itself in — in any particular initiative. We agree with that, but we think the potential is there. And there is usually a group of supporters of any measure that, you know, are passionate about that particular issue. . . .
JUSTICE GINSBURG: May I — may I ask you one — something that was not in your brief, but was in the secretary’s brief. Is this list available to Project Marriage? And specifically on page 34 of secretary Reed’s brief, the statement is made. The sponsoring organizations sometimes sell or trade these lists. They use them for fundraising purposes. So that would be the end of a person’s privacy, at least on one side. Is that true, that the initiative sponsor uses these lists?
MR. BOPP: Yes.
JUSTICE GINSBURG: Yes?
MR. BOPP: Yes, this is an act of private association. . . . .
JUSTICE SCALIA: Mr. Bopp, do you have any case in which we have held that the First Amendment applies to activity that consists of the process of legislation, of legislating or of adopting legislation?
MR. BOPP: Yes, Buckley II.
JUSTICE SCALIA: What is that?
MR. BOPP: Buckley II, you struck down the requirement that the person who is soliciting signatures self-identify.
JUSTICE SCALIA: That is — soliciting signatures is not taking part in the process of legislating.
MR. BOPP: Well -­
JUSTICE SCALIA: The person who requests a referendum is taking — when there’s a certain number of signatures required to achieve it is taking part in that. And in light of the fact that for the first century of our existence, even voting was public — you either did it raising your hand or by voice, or later, you had a ballot that was very visibly red or blue so that people knew which party you were voting for — the fact is that running a democracy takes a certain amount of civic courage. And the First Amendment does not protect you from criticism or even nasty phone calls when you exercise your political rights to legislate, or to take part in the legislative process. You are asking us to enter into a whole new field where we have never gone before.
MR. BOPP: Well, with all due respect, you have already opined in Buckley II that the person on the other side of the clipboard is protected by the First Amendment.
JUSTICE GINSBURG: I don’t think that’s -­- that’s true of Buckley II. What was — what this Court said could not be done is that the solicitor could not be made to wear a badge that says “I am a paid solicitor,” but that the solicitor’s name had to be identified for the State. Certainly the solicitor — there was an affidavit, and there was the filings with whatever was the State agency So what was — what this Court said could not be judged was this kind of in-your-face big button that says “I am a paid solicitor,” but the solicitor’s name and address certainly had to be disclosed.
MR. BOPP: That is true. You’ve correctly described Buckley II. But as we can see in the facts of this case, the public disclosure of the petition names in this case, there was a planned harassment and intimidation of these voters.
JUSTICE KENNEDY: Well, let me — let me ask you, could the opponents of a particular ballot measure organize a boycott for — and picket businesses whose managers had supported that boycott.
MR. BOPP: Yes.
JUSTICE KENNEDY: Had supported that initiative?
MR. BOPP: Yes.
JUSTICE KENNEDY: Well, if that’s — if that’s so, then under Claiborne Hardware, which I — I notice you didn’t cite in your brief, but if — if that’s so, then it seems to me that the State’s — or that — that the signers’ interest in keeping their names private is somewhat diminished.
MR. BOPP: Yes.
JUSTICE KENNEDY: It’s a First Amendment activity.
MR. BOPP: But what we’re — but what is involved here that is not involved there is the requirement by the government that you publicly disclose your identity and beliefs on a matter that then -­
JUSTICE GINSBURG: But — but just -­
MR. BOPP — subjects you to the boycott.
JUSTICE GINSBURG: Let me stop you there, because I think your — your own brief, I think you said twice that you cannot tell anything about the signer’s belief from the mere signature. You said it could be support for — for the proposition or it could be just support for letting the people decide.
MR. BOPP: That it -­
JUSTICE GINSBURG: Or it could even be, you say, that this solicitor is pesky, and in order to placate the solicitor, to get rid of the solicitor, we will just sign. So you — you have said that — that the signing itself is ambiguous. You don’t know what the reason is. It doesn’t necessarily mean that the person is a supporter of the proposition.
MR. BOPP: With all due respect, we do not say the third. We did say the first and the second. And — but either of those are political statements. . . .
JUSTICE SOTOMAYOR: Counsel, if we create this right of — this constitutional right of association in the manner that you are describing it, why is it limited to the voting area? Would we be inviting review if a group of citizens get together and send a letter to an agency that says: Please pass X regulation, or rescind Y regulation? Would the agency be prohibited from making that letter public.
MR. BOPP: Well, potentially. And — and this Court — I — because it would be required to be subject to a First Amendment analysis. It’s this Court that created, in the NAACP case -­
JUSTICE SOTOMAYOR: So you’re — you’re suggesting -­
MR. BOPP: — the right of private association.
JUSTICE SOTOMAYOR: — that when the petitioner or a person engages in political discourse with the government, that they — and they choose to do it, because the government is not compelling them to write to it, it is not compelling them to sign the referendum. It’s just -­
MR. BOPP: And they are not compelling Ms. McIntyre to distribute her brochure, either. But this Court held that -­
JUSTICE SOTOMAYOR: But it’s — but Ms. McIntyre wasn’t asking the government to engage its process in her favor. She was asking for political reform, but she wasn’t asking to engage the government process on her behalf.
MR. BOPP: Well, the government, you know, has a lot of options. For instance, they don’t have to conduct elections for the election of judge. But if they opt to do that and provide that procedure, well, then, the First Amendment applies to the political speech.
JUSTICE ALITO: Well, to follow up on Justice Sotomayor’s question, do you think an agency could say, if you want to comment on proposed — on a proposed rule, you have to disclose to us your name and your address and your telephone number and your political affiliation, and all sorts of — your marital status and your income level and all sorts of other demographic information?
MR. BOPP: And your employer, as in this case here.
JUSTICE ALITO: Could they do that?
MR. BOPP: No — no, because there is no sufficient governmental interest that would justify it.
JUSTICE SCALIA: Not even just your name, so they can check that this thing isn’t phony, and that all the names on it aren’t — aren’t made up by one person?
MR. BOPP: They, of course, can — can check that.
JUSTICE SCALIA:Of course they can. So they can get your name, right?
MR. BOPP: Yes, they can get your name -­
JUSTICE SCALIA: Okay.
MR. BOPP: — and we are not objecting to filing of the petition.
JUSTICE SCALIA: But you are objecting to the public being able to check whether the agency is indeed finding out whether this is a genuine petition or not, correct?
MR. BOPP: No. No, I’m not objecting to that.
JUSTICE SCALIA: Right?
MR. BOPP: They have procedures to check and verify these signatures that do not involve full disclosure.
JUSTICE SCALIA: Didn’t you have some options, too? Have you started a referendum to repeal the — the California law that requires disclosure?
MR. BOPP: California law does not require disclosure of the petitions, and that has been upheld by the courts of California. And you can verify these signatures.
JUSTICE SCALIA: I don’t understand. I thought that is what you are challenging. The -­
MR. BOPP: Well, but you asked about California.
JUSTICE SCALIA: I’m sorry. I’m sorry. Washington. I got the wrong State.
MR. BOPP: Okay.
JUSTICE SCALIA: Can you go — the people of Washington — the people Washington evidently think that this is not too much of an imposition upon people’s courage, to — to stand up and sign something and be willing to stand behind it.
MR. BOPP: In a sense -­
JUSTICE SCALIA: Now, if you don’t like that, I can see doing it another way. But — but the people of Washington have chosen to do it this — this way.
MR. BOPP: Actually -­
JUSTICE SCALIA: And you are saying that the First Amendment absolutely forbids that.
MR. BOPP: Actually, for a century, they chose not to do this. It wasn’t until 2006 -­
JUSTICE SCALIA: That’s fine. Proving my point.
MR. BOPP: They did not publicly disclose the petitions for a century.
JUSTICE SCALIA: It might have been a good idea.
MR. BOPP: Well -­

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