Jun 24 2010
The U.S. Supreme Court, in what amounts to an 8-1 decision, made what would seem to be the obvious call in the Washington case of Doe et al v. Reed: When you sign your name on a referendum petition (and presumably as well, initiative or other formal petitions), your name is public. Although it’s actually a little less broad than that.
The issue arose after the Washington passage of the everything-but-marriage domestic partners law last year, which was challenged by the group Protect Marriage Washington. It launched a referendum (ultimately defeated) to try to overturn the law, and to do that it needed petition signatures, a lot of them. It submitted about 137,000. When that happened another counter group asked Secretary of State Sam Reed for access to the names, which it planned to place on a web site. Protect Marriage Washington then filed the lawsuit, saying the names of signers should be kept secret because they might be subject to harassment.
This was a fairly new proposition, and a little strange. Other groups further out of the mainstream, who seemingly might have a lot more to lose through association with a particular cause, never asked for the cloak of privacy on this very public action. But the case went to the Supreme Court, and now the decision (written by the chief, John Roberts) is out:
“The issue at this stage of the case is not whether disclosure of this particular petition would violate the First Amendment, but whether disclosure of referendum petitions in general would do so. We conclude that such disclosure does not as a general matter violate the First Amendment, and we therefore affirm the judgment of the Court of Appeals. We leave it to the lower courts to consider in the first instance the signers’ more focused claim concerning disclosure of the information on this particular petition, which is pending before the District Court.”
The court left open a door, though, and maybe one any number of groups will try to use: The argument that their backers will be harassed if exposed. They should have closed that door entirely. Laws against harassment already are on the books and can and have been used. Beyond that: How cowardly to you get to be when you want affirmatively change things in our society? How many cloacks of darkness do you need? Casting a private vote, on an issue submitted to the public, is one thing; acting to place that matter on the ballot is quite different.
The line from the Citizens United v. Federal Election Commission, “Disclosure requirements may burden the ability to
speak, but they . . . do not prevent anyone from speaking,” is exactly on point. The court’s decision would have been stronger had they stuck closer to it.