First Amendment No Shield for Petitioners' Names

PUBLIC INFORMATION -- "In a case triggered in part by the battle over same-sex marriage in California, the Supreme Court ruled Thursday that disclosing the names of people who signed initiative petitions generally did not violate their right to free speech," reports Kathleen Hennessey in the Los Angeles Times. The decision will have little effect in California, where the names of those who petition to put measures on the ballot for an initiative or referendum or to recall public officials are exempt from disclosure under the Public Records Act.

The 8-1 decision is a partial victory for gay rights advocates who have used the "outing" of same-sex marriage foes as a political tactic. Same-sex marriage opponents in Washington state had argued that the signatures should remain secret — like ballots — under the protection of the 1st Amendment. They also claimed that, given the controversial topic, they faced a particular threat of harassment and intimidation that required anonymity.

Writing for the majority, Chief Justice John G. Roberts Jr. came down on the side of disclosure, ruling that in most cases the benefit of public petitions outweighed the "only modest burdens" that come with the disclosure. The justices left it to a lower court to decide whether privacy is warranted in this particularly controversial petition; however, a majority of justices seemed unsympathetic to the argument. Justice Clarence Thomas dissented.

The decision in Doe et al vs. Reed was somewhat of a surprise, given that many had believed that by taking up the case the high court had indicated it was partial to the 1st Amendment argument.

The case arrived at the court after a gay rights group said it planned to publicize the names of those who signed a Washington state petition seeking to repeal a same-sex domestic partner law. The names were public record under state law, and the group, KnowThyNeighbor.org, said the move was an attempt to generate useful discussion between political adversaries.

After the U.S. 9th Circuit Court of Appeals ordered the state to release the petition, the Supreme Court agreed to hear the claim, blocking the release of about 138,000 names just before election day.

The advocacy group Protect Marriage Washington appealed to the court, saying signers of the petition had reason to fear retaliation for their political views. They pointed to reports of harassment, scorn and verbal abuse lodged at those who signed initiative petitions for California's Proposition 8 ban on gay marriage.

But in his decision, Roberts wrote that plaintiffs did not present enough evidence that such concerns applied to the vast majority of petitions used to change state laws. Disclosing the names of signers can prevent fraud and promote open government, Roberts wrote."Public disclosure thus helps ensure that the only signatures counted are those that should be, and that the only referenda placed on the ballot are those that garner enough valid signatures," Roberts wrote. "Public disclosure also promotes transparency and accountability in the electoral process to an extent other measures cannot."

KnowThyNeighbor Executive Director Tom Lang said the decision affirmed the group's attempts to make the petition process "as open and transparent as possible."Roberts suggested that there might be some cases in which the possibility of harassment and retribution could justify secrecy, but he did not explain in detail.

Protect Marriage Washington attorney James Bopp said his group planned to continue to seek that protection in district court."We are looking forward to returning to Washington and showing the court that supporters of traditional marriage should have their personal information protected from disclosure," Bopp said in a statement.

But five justices — conservative Antonin Scalia and the four liberals on the court — suggested they would not look favorably on Bopp's case if it were to come before the court again.