“Let the sunshine, let the sunshine in”
The Supreme Court of the United States today decided Doe v. Reed, rejecting by an 8-1 vote a facial challenge to a Washington state law treating referendum petitions with signatory information as public records available for inspection and copying. The anonymous challengers did not want disclosed the signers of a petition that unsuccessfully attempted to overturn improvements to Washington’s domestic partnership law. The Court held that they will have a chance when the case returns to the trial court to argue that as applied to Referendum 71 (R-71), Washington’s disclosure requirement violates the First Amendment. But it is not clear that the challengers will be able to succeed.
Chief Justice John Roberts wrote the majority opinion, which held that signing such petitions was activity protected by the First Amendment that therefore could be regulated by states only if they have “a sufficiently important governmental interest.” Here, the Court accepted Washington’s interest in protecting the integrity of elections as adequate to make the disclosure requirement generally constitutional as to referendum petitions. The Court remanded the case to the trial court, however, so that the plaintiffs could try to establish their other First Amendment argument: that the signers of R-71 should not be disclosed because they would be subjected to harassment (now, even though the election has passed and the repeal effort was voted down).
Justice Clarence Thomas dissented from the Court’s decision to uphold the petition disclosure requirement on its face and can be counted on to hold it unconstitutional as applied to R-71. Justice Sam Alito joined the majority opinion but wrote separately to urge that the challengers should have a very light burden of proof to establish a likelihood that disclosure would subject them to harassment, so he too would likely vote for the challengers if the case returns.
However, Justice Antonin Scalia, who did not join the majority opinion but agreed that the disclosure requirement was constitutional on its face, did not think that the First Amendment offers any secrecy protection for legislative acts. Governance by initiatives and referenda is as much lawmaking as is governance by legislatures passing bills, and in Justice Scalia’s plausible view no one is constitutionally entitled to engage in these actions in secret. Therefore, he has made clear that he would not vote to hold Washington’s disclosure requirement unconstitutional.
In addition, Justice Sonia Sotomayor, who did join the majority opinion, wrote a separate concurrence joined by Justices John Paul Stevens and Ruth Bader Ginsburg, who did not join the majority, making clear their disagreement with Justice Alito. In their view, those seeking to challenge disclosure of petitions would have a heavy burden under the First Amendment, and would have to show threats of harassment as serious as those faced by the NAACP in the Jim Crow South. Justice Stephen Breyer also filed a concurring opinion, and joined another concurring opinion by Justice Stevens, making clear that they too believed that the challengers would not have an easy burden at trial.
So, a majority of the Court (Justices Stevens, Scalia, Ginsburg, Breyer, and Sotomayor) all either doubt or deny that the challengers will succeed in arguing that disclosure of the R-71 petitions would violate the First Amendment. Given the paucity of actual evidence of constitutionally unprotected reprisals in the Referendum 71 campaign (see the excellent amicus brief by Lambda Legal, GLAD, NCLR, HRC, and the NLGTF amplyifying this point), this is as it should be.