Those who sign a petition to place an issue of public dispute onto a statewide ballot may not later claim a broad First Amendment shield of anonymity to prevent disclosure of their names to the public, the US Supreme Court ruled on Thursday.
In an 8-to-1 decision, the high court said public disclosure of referendum petitions does not as a general matter violate the First Amendment. But the court also stressed that under certain circumstances, petition signers may be able to remain anonymous.
“Those resisting disclosure can prevail under the First Amendment if they can show a reasonable probability that the compelled disclosure [of personal information] will subject them to threats, harassment, or reprisals from either government officials or private parties,” Chief Justice John Roberts wrote in the majority opinion in a case called Doe v. Reed.
The issue arose in Washington State after a group opposed to same-sex marriage sought to repeal a recently passed domestic partnership law. The group wanted the law to reflect that marriage and related legal benefits could only be between a man and a woman.
Group sought to repeal domestic partnership law
The group, Protect Marriage Washington, collected more than 122,000 valid signatures to force state officials to place the question of whether to repeal the law on the ballot in the 2009 election.
Supporters of the recently adopted domestic partnership law fought the petition drive. Some threatened to obtain the names of petition signers and make them public on the Internet to facilitate “uncomfortable” discussions between petition signers and gay-rights activists.
Similar tactics had been used during the same-sex marriage fight over Proposition 8 in California in 2008. Supporters of same-sex marriage obtained campaign contribution records identifying gay-marriage opponents. Once the names were publicized on the Internet and elsewhere, some opponents complained of harassment and even death threats.
Worried that the same might happen in Washington State, Protect Marriage Washington obtained a court-order preventing the state from publicly releasing records identifying the petition signers. The Ninth US Circuit Court of Appeals reversed the order, opening the way for release of the documents.
In agreeing to take up the case, the Supreme Court reinstated the federal judge’s injunction blocking release of the records pending resolution of the case.
In its decision, the high court said it was not considering at this stage whether disclosure of that particular petition would violate free speech principles. Instead, the issue was 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,” the chief justice wrote.
He said the justices would leave it to the lower courts to examine the claim that disclosure of the signed petitions in the Washington State case would lead to threats and harassment.
“Faced with the state’s unrebutted arguments that only modest burdens attend the disclosure of a typical petition, we must reject plaintiff’s broad challenge to the [Washington State public records act],” Roberts wrote.
In a lone dissent, Justice Clarence Thomas said compelled disclosure of petition signatures “severely burdens” political speech and association rights and chills citizen participation in the referendum process.
“I would hold that Washington’s decision to subject all referendum petitions to public disclosure is unconstitutional because there will always be a less restrictive means by which Washington can vindicate its stated interest in preserving the integrity of its referendum process,” Thomas said.
State officials justify their public disclosure requirement as necessary to uphold the integrity of the referendum process.
Verifying petition signatures
Thomas said state officials could verify the authenticity of petition signatures by storing the names in an electronic database where state officials could match them against voter registration and other records. This approach protects against the chilling effect of the state’s full public disclosure policy, he said.
Justice Antonin Scalia, concurring in the judgment, said he was not impressed by the plaintiff’s fear of threats and intimidation. There are laws against threats, he said, and harsh criticism is a price one must be willing to pay for self-governance.
“Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed,” he said. “I do not look forward to a society which… campaigns anonymously” and conducts petition initiatives “hidden from public scrutiny and protected from the accountability of criticism.”
Scalia added: “This does not resemble the Home of the Brave.”