The Supreme Court's Decision in Doe v. Reed - Tilting Towards Disclosure?
The U.S. Supreme Court has upheld the constitutionality of a Washington state law authorizing public disclosure of the petitions that are submitted to the state to put referenda on the ballot, but was sharply divided over the circumstances under which petition signers might be constitutionally entitled to an "exception" from the disclosure requirement. The Court ruled 8-1 in Doe v. Reed, No. 09-559 (June 24), that the federal district court in Washington State erred in striking down the statute as unconstitutional, but only six judges signed the opinion for the Court by Chief Justice John Roberts. The Court sent the case back to the trial court to give the plaintiffs an opportunity to seek an exception to the disclosure requirement.
Justice Clarence Thomas dissented, arguing that the statute placed an unconstitutional burden on the free speech rights of petition signers.
There were concurring opinions by Justices Sonya Sotomayor, John Paul Stevens, Antonin Scalia, Stephen Breyer, and Samuel Alito, with Justice Breyer also signing Justice Stevens’ concurrence, and Justice Ruth Bader Ginsburg signing Justice Sotomayor’s concurrence, together with Justice Stevens. Neither Justices Stevens nor Scalia signed Chief Justice Roberts’ opinion.
The case arose out of Washington State’s 2009 enactment of a law expanding the state’s existing domestic partnership bill. Senate Bill 5688, referred to as the "everything but marriage bill," built upon the state’s existing domestic partnership law to provide that registered domestic partners would have virtually all the state-law rights of married couples. This proved to be a step too far for some committed opponents of same-sex marriage, who promptly began circulating petitions seeking a referendum to repeal the law. Under Washington procedures, if the petitioners acquired sufficient signatures the law would be stopped from going into effect pending the referendum vote. They got the signatures, and the measure went on the 2009 general election ballot as Referendum 71.
Supporters of the partnership law promptly filed a request with the state to receive copies of the petitions, to which they were entitled under a state statute. The referendum proponents then filed suit in federal court, seeking an injunction against release of the petitions. They argued that the statute authorizing disclosure of the petitions was unconstitutional because such exposure could deter people from signing petitions about controversial issues, such as same-sex marriage. They also argued that even if the statute was constitutional, its application in this case would be unconstitutional due to the unusual circumstances. They relied on evidence that supporters of the partnership law planned to post the petitions on the internet and to encourage people to confront petition signers, and pointed to the experience in California after passage of Proposition 8, when some supporters of that measure suffered consumer boycotts, picketing, social ostracism and derogatory comments from supporters of same-sex marriage.
The federal district court quickly accepted their first argument, ruled that the statute was unconstitutional on its face, and preliminarily enjoined release of the petitions pending a full trial. The state appealed to the U.S. Court of Appeals for the 9th Circuit, which reversed, concluding that the plaintiffs were unlikely to prevail on their argument that the statute was facially unconstitutional. The plaintiffs promptly petitioned the Supreme Court to stay the 9th Circuit’s ruling and keep the injunction in place, pending a Supreme Court review of the merits of the case. The Court agreed to do this, so the petitions were not released prior to the election. The referendum was defeated and the state’s new domestic partnership law went into effect.
Meanwhile, the plaintiffs petitioned the Supreme Court to review the 9th Circuit’s opinion, and that petition was granted. The case was argued on April 28.
Apart from Justice Thomas, all of the Court’s members agreed that the Washington statute authorizing disclosure of the petitions (which would include the name and address of every signer) was constitutional. That was almost all that the Court had to decide directly, since technically the only question before the justices was whether the district court’s ruling was correct. However, having held the statute was constitutional, the Supreme Court felt obliged to indicate whether the plaintiffs had enough of a First Amendment interest at stake to merit consideration of their second argument: that due to the nature of this case they were entitled to an "exception" to the disclosure requirement. Almost everybody on the Court agreed that they should have the opportunity to seek such an exception, with the surprising exception of Justice Scalia, but there was wide disagreement over the standard the district court should use to make that decision.
The Court’s ruling turned first on the question whether people who sign such petitions have any First Amendment interest in keeping their names and addresses secret from the public. The Court accepted the plaintiffs’ argument that there was a First Amendment interest here, but not an absolute one, and subject to balancing against the state’s interests in disclosure of such information. The Court found that the state’s interests in preventing fraud and providing transparency in its referendum process are strong enough to outweigh, in general, any free speech interests that petition signers might have in remaining anonymous, while conceding that publicizing the names and addresses of signers might have the incidental effect of deterring some people from signing petitions.
It was this approach of balancing interests that led the Court to conclude that in a particular case petition signers might have a valid claim that their First Amendment interests outweighed the state’s interest, requiring a constitutional exception to the disclosure requirement. When interests are to be balanced, of course, it makes a difference how much weight one assigns to the interests at stake. As to this, Chief Justice Roberts’ opinion is relatively non-committal, quoting prior cases to the effect that plaintiffs might prevail by showing a "reasonable probability" that disclosure would lead to "threats, harassment or reprisals" against the signers. Of course, this comment was what lawyers call "dicta," not necessary to decide the specific question before the Court.
Roberts had to be non-committal in discussing the plaintiffs’ remaining "exception" claim, since any attempt to be more specific would have lost several of his opinion signers, depending on how he would advocate weighting the interests at stake. Justices Sotomayor, Stevens, Ginsburg and Breyer, to judge by their various concurrences and the concurring opinions they signed, would lean towards rejecting an exception in the absence of strong evidence of serious consequences to petition signers, while Justice Alito suggested that the evidence the plaintiffs had already presented in support of their first claim would probably suffice. Justice Scalia found little support for the argument that the plaintiffs had a serious First Amendment interest at stake, and, as at oral argument, was sarcastic about the plaintiffs’ claims. Of course, as Justice Thomas found the statute to be unconstitutional, he would have upheld the district court’s injunction.
Plotting out the various concurrences and dissents one comes to the conclusion that there is no majority view on the Court concerning the circumstances under which a constitutional exception to the statute would be required, but when Justice Scalia’s view that plaintiffs have no viable First Amendment claim is cumulated with the views of Justices Stevens, Breyer, Ginsburg and Sotomayor, it appears that the plaintiffs would probably fail on their second claim, since their evidence about potential harm was heavily speculative, the referendum is now long past, and tempers in Washington State have undoubtedly cooled since the November balloting. Sotomayor, Stevens, Breyer and Ginsburg all agree that the plaintiffs could not prevail without presenting significant evidence of serious harm were the petitions to be disclosed. Roberts and Justice Anthony Kennedy signed the majority opinion but none of the concurrences, so presumably their views on this are somewhere between those of Alito and the liberal concurrers.
To me, the most interesting opinion was, as is frequently the case, Justice Scalia’s. Scalia is a proponent of "originalism" in construing constitutional text, so he provides a history lesson about referenda and voting in America. He starts from the proposition that a referendum process devoted to enacting or repealing bills is actually a form of legislating, and when individuals sign petitions to put such referenda on the ballot, they are really acting as legislators, not just voters. In that case, the Constitution tips heavily towards disclosure, since there is no tradition of conducting legislative activities in secret. Indeed, as he points out, the Constitution requires each house of Congress to publish a journal of its proceedings, recording and reporting the votes of their members on questions before the house.
Scalia also points out that from the time the First Amendment became part of the Constitution in 1791 until well into the 19th century, there was no established practice of anonymous voting in the United States. Paper ballots came into use gradually through the 19th century, voting machines later still, and the custom in many parts of the country in the early years was for voters to come to the polls and announce their votes out loud. That being the case, if one accepts the proposition that the Constitution’s text should be construed to mean what the generation that adopted it would have thought it meant, it would be hard to find any sort of right to anonymous voting or legislating in the First Amendment.
"There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self governance," wrote Scalia. "Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave."
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