The U.S. Supreme Court has spoken, kind of. In what has been regarded, prematurely, as a victory for opponents of last year's Referendum 71 drive, the court said on June 24 that, in general, the state doesn't stifle free speech when it makes public the names of people who sign referendum petitions.
But in the specific case of people who signed petitions for R-71, who knows? The court sent the case back to the U.S. District Court to decide whether or not by requiring disclosure of the people who signed those petitions, the state's Public Records Act has impermissibly burdened political speech.
The majority opinion, written by Chief Justice John Roberts, got 8 votes, with only Clarence Thomas dissenting. Roberts said that signing a referendum petition is an expressive act protected by the First Amendment, but under most circumstances, the burden on speech is too trival to outweigh the state's interest in "preserving the integrity of the electoral process." Everyone but Thomas agreed that in general, the First Amendment doesn't keep the state from disclosing the names of signers. But not all the justices agreed that signing equals speech.
In fact, when it came down to the fine points, the justices were all over the map. Kennedy, Ginsburg, Breyer, and Sotomayor joined Roberts' opinion. Breyer and Alito filed concurring opinions. Sotomayor also filed a concurring opinion, in which Stevens and Ginsburg joined. Stevens filed an opinion concurring in part and in the judgment in which Breyer joined. And Scalia filed an opinion concurring only in the judgment. Even with a scorecard, it's hard to keep the players straight.
The political conflict from which the case arose is, of course, history. Last year, the legislature passed Senate Bill 5688, which the court explained "expand(ed) the rights and responsibilities' of state-registered domestic partners, including same-sex domestic partners.” The legislation said that "state registered domestic partners shall be treated the same as married spouses" and that "the terms spouse, marriage, marital, husband, wife, widow, widower, next of kin, and family shall be interpreted as applying equally to state-registered domestic partnerships."
Protect Marriage Washington immediately started collecting names on a petition for a referendum to repeal the law. R-71 apeared on the ballot last November. Voters approved the domestic partnership law 53 percent to 47 percent. But by Aug. 20, Reed "had received requests for copies of the R–71 petition from an individual and four entities, including Washington Coalition for Open Government (WCOG) and Washington Families Standing Together (WFST) . . . Two entities, WhoSigned.org and Know-ThyNeighbor.org, issued a joint press release stating their intention to post the names of the R–71 petition signers online, in a searchable format."
Protect Marriage Washington asked a federal court to enjoin Secretary of State Sam Reed from releasing the names. The District Court granted a preliminary injunction. The 9th U.S. Circuit Court of Appeals reversed the lower court decision. The Supreme Court heard oral arguments in April. The plaintiffs had originally argued both the general case (disclosing signers' names always violates the First Amendment, and the specific (disclosing signers' names violates the First Amendment in this case). But the lower courts had ruled only on the general question, so that's the only question the Supreme Court decided.
It was not the only question that the various justices addressed.
The state had argued that signing an initiative or referendum petition was an act of legislation, not speech, so it didn't qualify for First Amendment protection. The court majority disagreed: signing a petition is an expressive act, whether or not it has a legal effect. "An individual expresses a view on a political matter when he signs a petition," Roberts wrote, and "the expression of a political view implicates a First Amendment right."
It may not be purely expressive, but even though “signing a referendum petition may ultimately have the legal consequence of requiring the secretary of state to place the referendum on the ballot . . . we do not see how adding such legal effect to an expressive activity somehow deprives that activity of its expressive component."
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