The Supreme Court ruled today in Doe v Reed that individuals who sign referendum petitions generally do not have a First Amendment right to remain anonymous. But the Court also held that courts should consider the particular facts in any given case to determine whether
anonymity is constitutionally required.
Blocking disclosure would be constitutional, the Court holds, "if there were a
reasonable probability that the group’s members would face threats,
harassment, or reprisals if their names were disclosed."
Reed arose when a group called Protect Marriage sought to block release of the names of those who had signed a petition to put R-71 - a measure to stop the implementation of a state domestic partners law - on the ballot. (Voters defeated R-71 in the 2008 election, allowing the partner registration system to take effect.) A generally applicable state public records law authorizes the release of the names and addresses of those who sign referenda petitions, and several pro-lgbt groups requested that information. (More background here and here.)
Protect Marriage argued that individuals who oppose lgbt rights fear harm because of possible retaliation by lgbt advocates, and therefore should have their identities kept private. The Court ruled that release of names and addresses of petition signers was normally justified by the state's interest in protecting against election fraud, i.e., against individuals signing a petition multiple times and/or using forged or invented names.
The case will now go back to the lower courts for a determination of whether there is a reasonable probability that signers of this petition would suffer harm if their identifying information is released. Key to that assessment will be evidence that the fear of such harm is exaggerated or fabricated. An excellent amicus brief filed by Lambda Legal and several other lgbt organizations was before the Court in Reed, and was doubtless a factor in producing some of the strong language in the Sotomayor and Stevens opinions (see below).
Although the bottom line result was a lopsided 8 to 1 split among the Justices (Thomas dissented), the reasoning was fragmented. The opinion of the Court, written by Chief Justice Roberts, stressed that the state had ample justification for treating referendum petitions as releasable public records, absent a showing of special circumstances. Justice Scalia, on the other hand, concurred in the result but wrote separately to make clear that he believed that there never should be an exception made to the law providing for name disclosure. Other concurring opinions favoring disclosure, and suggesting that this would hold true for the R-71 names, were written by Justices Sotomayor and Stevens.
Justice Sotomayor, joined by Justices Stevens and Ginsburg, wrote:
...[T]he process of legislating by referendum is inherently public. To qualify a referendum for the ballot, citizens are required to sign a petition and supply identifying information to the State. The act of signing typically occurs in public, and the circulators who collect and submit signatures ordinarily owe signers no guarantee of confidentiality. For persons with the “civic courage” to participate in this process, (opinion of Scalia, J.), 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. Disclosure of the identity of petition signers, moreover, in no way directly impairs the ability of anyone to speak and associate for political ends either publicly or privately.
This three-some believes that persons seeking anonymity have to demonstrate that they face the kind of threats experienced by civil rights workers 50 years ago:
Case-specific relief may be available when a State selectively applies a facially neutral petition disclosure rule in a manner that discriminates based on the content of referenda or the viewpoint of petition signers, or in the rare circumstance in which disclosure poses a reasonable probability of serious and widespread harassment that the State is unwilling or unable to control. Cf. NAACP v. Alabama ex rel. Patterson, 357 U. S. 449 (1958). Allowing case-specific invalidation under a more forgiving standard would unduly diminish the substantial breathing room States are afforded to adopt and implement reasonable, nondiscriminatory measures like the disclosure requirement now at issue. Accordingly, courts presented with an as-applied challenge to a regulation authorizing the disclosure of referendum petitions should be deeply skeptical of any assertion that the Constitution,which embraces political transparency, compels States to conceal the identity of persons who seek to participate in lawmaking through a state-created referendum process.
Justice Stevens (joined by Justice Breyer) expresses even deeper skepticism:
Any burden on speech that petitioners posit is speculative as well as indirect. For an as-applied challenge to a law such as the [Public Records Act] to succeed, there would have to be a significant threat of harassment directed at those who sign the petition that cannot be mitigated bylaw enforcement measures. Moreover, the character of the law challenged in a referendum does not, in itself, affect the analysis. Debates about tax policy and regulation of private property can become just as heated as debates about domestic partnerships. And as a general matter, it is very difficult to show that by later disclosing the names of petition signatories, individuals will be less willing to sign petitions. Just as we have in the past, I would demand strong evidence before concluding that an indirect and speculative chain of events imposes a substantial burden on speech. A statute “is not to be upset upon hypothetical and unreal possibilities, if it would be good upon the facts as they are."
Justice Alito also concurred in the result, but would use a far more lenient standard to assess whether Protect Marriage should be given an exemption from the disclosure rule. Noting that the Court was quite sympathetic to the concerns of potential witnesses in Perry v. Schwarzenegger when it blocked the televising of the trial, Justice Alito wrote that:
The widespread harassment and intimidation suffered by supporters of California's Proposition 8 provides strong support for an as-applied exemption in the present case...[I]f the evidence relating to Proposition 8 is not sufficient to obtain an as-applied exemption in this case, 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.
The only Justice who did not write or join an opinion other than the opinion of the Court was Justice Kennedy.
In sum, this battle isn't over yet, although Protect Marriage will have to meet an extremely high standard to block the release of names. In my view, this is exactly the right result. I would not have been comfortable with a ruling declaring that there could never be constitutional protection for keeping the identities of petition signers private. At the same time, four Justices make quite clear that they are suspicious that the manufactured hysteria over fear of gay retribution is just that.