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.'ê 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'ê71 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'ê71 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 'êsigning 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."
Other justices did see how that might be so. Despite the blizzard of concurring opinions, Stevens wrote, 'êThis is not a hard case. It is not about a restriction on voting or on speech.'ê And, Stevens said, 'êthe application of the PRA (the state's Public Records Act) to referendum petitions does not substantially burden any individual'ês expression."
Sotomayor wrote, "Disclosure of the identity of petition signers . . . in no way directly impairs the ability of anyone to speak and associate for political ends either publicly or privately." And Scalia expressed his 'êdoubt whether signing a petition that has the effect of suspending a law fits within 'the freedom of speech' at all.: He bought the state's argument, writing, 'êWhen a Washington voter signs a referendum petition subject to the PRA, he is acting as a legislator."
The decision against Protect Marriage Washington can't have shocked anyone. Ever since oral arguments, smart money had been on the state. The justices' questions and statements from the bench implied that they had little sympathy for the plaintiffs' arguments.
While the petitioners' lawyer, James Bopp, was answering a barrage of questions, Scalia said: "Oh, this is such a touchy-feely, oh, so sensitive about — about any . . .'ê After the laughter subsided, he said: "You know, you can't run a democracy this way, with everybody being afraid of having his political positions known." At another point, he suggested that "the people of 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."
In his concurrence, Scalia reiterated the courage thing, saying: "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. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed."
Sotomayor agreed with him, writing that for anyone "with the 'civic courage' to participate in this process, the State's decision to make accessible what they voluntarily place in the public sphere should not deter them from engaging in the expressive act of petition signing."
Roberts flatly rejected the idea that the subject matter requires anonymity. Initiatives and referendums often involve controversial subjects about which people hold strong views, "but there is no reason to assume that any burdens imposed by disclosure of typical referendum petitions would be remotely like the burdens plaintiffs fear in this case."
Back in District Court, the plaintiffs will have to argue that these people — or people similarly inclined who spot the names on the Internet — will probably harass the petition signers and perhaps their families, and that criminal sanctions won't be enough to deter such behavior.
Roberts noted that the plaintiffs claimed the groups seeking disclosure wanted to "publicly identify those who had validly signed and to broadcast the signers' political views on the subject of the petition. Plaintiffs allege, for example, that several groups plan to post the petitions in searchable form on the Internet, and then encourage other citizens to seek out the R'ê71 signers. Plaintiffs explain that once on the Internet, the petition signers' names and addresses 'can be combined with publicly available phone numbers and maps,' in what will effectively become a blueprint for harassment and intimidation.'
Has the Internet changed the rules? Alito suggested that if the names were posted, "anyone with access to a computer could compile a wealth of information about all of those persons, including in many cases all of the following: the names of their spouses and neighbors, their telephone numbers, directions to their homes, pictures of their homes, information about their homes (such as size, type of construction, purchase price, and mortgage amount) . . . The potential that such information could be used for harassment is vast."
During oral argument, Ginsburg had asked McKenna if there was any example of petition signers in Washington actually being harassed. McKenna said there was not.
However, Bopp said, 'êthe campaign manager of this initiative had his family sleep in his living room because of the threats.'ê Scalia replied, 'êWell, that's bad . . . but just because there can be criminal activity doesn't mean that . . . you have to eliminate a procedure that is otherwise perfectly reasonable."
But mostly, the plaintiffs pointed at California as an example of what could go wrong. Roberts noted that 'êto support their claim that they will be subject to reprisals, plaintiffs cite examples from the history of a similar proposition in California,'ê Alito suggested that the example of California's Proposition 8 should be all the plaintiffs need. 'êIf the evidence relating to Proposition 8 is not sufficient to obtain an as-applied exemption in this case," he wrote, "one may wonder whether that vehicle provides any meaningful protection for the First Amendment rights of persons who circulate and sign referendum and initiative petitions."
But then, not all the justices were convinced that signers had any significant First Amendment rights. Stevens doubted that the plaintiffs could make a convincing case for hiding the names on any specific referendum petition. "For an as-applied challenge to a law such as the PRA to succeed," he wrote, "there would have to be a significant threat of harassment directed at those who sign the petition that cannot be mitigated by law enforcement measures."
These issues may make their way back up to the Supreme Court. Or the District Court may just decide the whole thing is moot.