Public Disclosure Under Attack or True Free Speech? R-71 Goes Before the Supreme Court
This week, the U.S. Supreme Court takes up a case that asks the fundamental question of whether, when a citizen signs a petition to place an initiative on the ballot, is his or her privacy protected by the First Amendment as political speech, and if so, should aspects of Washington’s public disclosure law allowing for the release of petitioners’ identities be struck down?
The case in question is Doe v. Reed. More commonly known as the Referendum 71 (R-71) case, the name being taken from the 2009 Washington ballot measure that the legal action originates from, the case contends that petitioners’ names should be shielded from disclosure as part of protected political speech to prevent those signatories from being harassed, while the defense in the case argues that disclosure is paramount for transparency, accountability and fraud protection.
Referendum 71 was a ballot initiative brought by “traditional” marriage advocates Protect Marriage Washington that aimed to overturn Washington’s expanded domestic partnership law that they claimed undermined marriage. The measure narrowly qualified for the ballot. However, voters chose to approve the domestic partnership law by 53.2%.
During this time, some gay rights supporters requested the disclosure of the names of the 13,800 petitioners who signed to put the domestic partnership law on the ballot, saying that they would like to make this information public so that they could find out exactly who supported Referendum 71.
Washington Secretary of State Sam Reed said that he would comply with such a request as the information is subject to public disclosure under the Public Records Act, an initiative that was approved by a 72% majority in 1972.
However, Protect Marriage Washington launched a legal action to block the release of such details, saying that petitioners feared that they could be targets for harassment and possible violence given that some advocates of the domestic partnership law had indicated that they would put those details on the Internet.
This charge of potential harassment was denied by the gay rights groups who countered that, by choosing to support putting the domestic partnership law on the ballot, petitioners had knowingly made a public statement of their conviction that was subject to disclosure. They claimed that access to this information fell under government oversight and transparency and as such it was their right to be able to view the requested details.
A lower court sided with Protect Marriage Washington and ruled to temporarily block the release of the names in September 2008, agreeing that releasing such information could chill free speech.
This is an argument that Protect Marriage Washington perpetuated when the case was taken up by the 9th U.S. Circuit Court of Appeals. This time the argument failed. As such, they appealed again and the United States Supreme Court agreed to take on the case.
Who is Involved?
Representing the Protect Marriage Washington side is the somewhat infamous James Bopp Jr., a conservative lawyer from Indiana who has embarked on a self-proclaimed mission to dismantle the country’s campaign finance and disclosure laws. He also appears to favor using anti-marriage equality and so-called “traditional marriage” cases to try and accomplish this, which may indicate where most of his support comes from.
Regardless, many readers may be familiar with Bopp as a result of his marked victory earlier in 2010 when his side prevailed in the controversial Citizens United case that tore through legal precedent to delete significant portions of campaign finance rules, declaring therein that the government can not ban political spending by corporations in candidate elections. Read more about the Citizens United case here.
For the opposing side, Washington State Attorney General Rob McKenna will be arguing for disclosure and will therein defend Washington’s Public Records Act. He is joined by dozens of groups who support disclosure laws, including the Associated Press, as well as states like Florida, South Carolina and Idaho all of whom have similar laws and have thus submitted friend-of-the-court briefs in support.
What are the Core Arguments?
It is expected that Bopp will argue before the court that petition signers are “sovereign citizens” (Bopp’s phrase, not mine) exercising their right to hold public votes on legislation they feel should be taken out of the hands of legislators. He will advance that, as in voting, secrecy is necessary so that the opponents of a particular public referendum can not use such information to harass, bully or coerce.
In a Seattle Times opinion piece, James Bopp alleges the following as a reason why public disclosure must be curtailed:
IN 2008, California voted to define marriage as between one man and one woman. The election was plagued by threats and intimidation levied against supporters of traditional marriage, and the harassment was facilitated by a law requiring contributors of $100 or more to publicly disclose their names, addresses, occupations and employers.
This personal information was even combined on the Internet with maps, providing would-be harassers with directions to supporters’ homes. And the retaliation was as much about the next vote on same-sex marriage as the election in California.
… Rather than embrace the opportunity to publicly debate the merits of the domestic-partnership law, opponents vowed to obtain copies of the petition, hoping to place the names and addresses of the signers on the Internet to encourage “uncomfortable conversations.”
However, while Bopp’s side may allege that intimidation can result from public disclosure, four political science professors have submitted an opposing brief to the court suggesting the contrary, saying that they found no evidence that harassment has ever manifested as a direct result of petitioners’ names being released, either in Washington or elsewhere.
Washington Attorney General Rob McKenna, who will be arguing for the disclosure law, has also written an opinion piece for the Seattle Times in which he counters Bopp’s argument thus:
The petitioners in this case suggest the public should not have access to information about who signed Referendum 71, a 2009 ballot measure regarding domestic partnerships. They worry that if the names and addresses of those who signed are publicly available, people will shy away from participating in the referendum process.
But petitions are not secret ballots, like those we cast in an election. Petition signers put their names, addresses and signatures on the same sheet as dozens of others, often in front of a busy big-box or grocery store. These petitions are routinely copied by sponsors, who keep them for outreach purposes. In contrast, general election ballots are sealed in specially secured envelopes.
McKenna contends that the federal judge who blocked the release of the petitioners’ names “misapplied constitutional law” – as was also found by the 9th Circuit Court of Appeals – by wrongly finding that petitions amount to anonymous political speech. Why? McKenna adds:
We don’t allow legislators to secretly sponsor bills. Nor should we allow members of the public, when they substitute themselves for legislators, to sponsor laws in secret.
Speaking to The News Tribune, Secretary of State Sam Reed, who is named in the case, said that the welfare of petitioners was a concern, but claimed that this was “a separate issue” saying, “We have not heard of anyone who signed a petition being harassed. We would turn such a case over to the police.” As such, he commented that this alone does not outweigh the public interest in being able to access such information.
The Broader View of Doe v. Reed
Rather than just being about gay rights, this case goes to the very heart of public disclosure and government transparency, though its ramifications for such issues as gay rights and others that are frequently put to the ballot are considerable.
Fundamentally, the Public Records Act says that the public has a right to scrutinize the government’s work, and just as the public has the power to take legislation out of the hands of legislators and put it before the public vote, with that comes the balance of having the freedom to scrutinize and independently verify such petitions so as to ensure that these initiatives have been properly placed on the ballot in the first place and that no error has been made.
Taking R-71 as a case in point, the measure narrowly qualified for the ballot amid allegations of fraudulent signatures, a charge which was taken before the court by supporters of the domestic partnership law who aimed to block the ballot motion entirely, and while one judge ruled that potentially tens of thousands of invalid signatures may have been allowed to stand when the motion was accepted, the ballot was allowed to go ahead after a second judge ruled not to block the vote. More on that here.
Looking more broadly, one could take the example of the controversial 1978 anti-tax initiative Proposition 13 – known as the People’s Initiative to Limit Property Taxation – that has, in the years since it passed, received both ardent support and broad condemnation, as an example of why there may be legitimate public interest in petition disclosure.
Some blame the initiative for California’s current fiscal crisis, as Proposition 13 included a mandate that a two-thirds supermajority is required to pass property tax increases, something which is seen by many as a near insurmountable obstacle to proper budgeting. It is also attributed as having doomed California’s schools that were once resplendent at the top of the league tables, to the murky lower depths because state funding proved a poor substitute for the levels of finance that property tax had provided.
However, some have defended Proposition 13 as creating what has been termed “a second California gold rush” during the 1980s, while some conservative analysts argue that the measure has saved the average Californian homeowner tens of thousands of dollars in property tax payments and that the benefits outweigh the drawbacks. Opponents counter that the measure costs more than it saves.
Regardless, it seems clear that Proposition 13 was a game-changing piece of legislation and that the repercussions of its passing, whether unfavorable or otherwise, continue to be felt today. Unlike Washington and some 23 other states that allow disclosure, California does not treat petitions as public records, but it is not hard to see why, when such far reaching laws can be created from ballot initiatives, the burden of weighing transparency verses free speech is very pressing.
So what are the chances that the Supreme Court will rule in favor of anonymity for petitioners and strike down this aspect of the Public Records Act? As this article notes, the Supreme Court has a history of protecting anonymity in political actions like leafleting and handbills.
However, the bar has been set quite high in this case. Rather than confining their argument to the R-71 issue specifically, Bopp and the Protect Marriage Washington side appear to be framing the case so as to achieve a broader ruling that seeks to find that every single disclosure of public initiative information violates the First Amendment rights of the petitioners. Such a high threshold – requiring them to prove that under no circumstances can disclosure be constitutional – would seem problematic, and this is something that McKenna and the defense will no doubt put to the court as part of their arguments.
With the battle-lines drawn, all eyes now turn to the SCOTUS to see which way they will rule in a case that could have implications for many other states that allow voter enacted initiatives. In particular, this case will be scrutinized given the recent run of controversial decisions the court has made. Also noteworthy is the fact that this case will be Justice John Paul Stevens’ last as a member of the U.S. Supreme Court, so his legacy will no doubt be tuned to the pitch of this final ruling.
At this stage, few analysts are willing to make any solid guess as to the outcome of the case beyond the fact that this will be another controversial ruling whatever the court decides. However, early indications from Wednesday’s oral arguments seemed to demonstrate that the Justices were skeptical of the idea that the First Amendment protected petitioner information. You can read more here.
A decision is expected in June.