At issue: privacy vs. openness in ballot petitions

Tuesday, January 19, 2010

WASHINGTON — The Supreme Court has agreed to review a case that presents the classic tension between public disclosure and personal privacy but with the added twist of the Internet.

In a case from Washington state, Doe v. Reed, the Court will consider whether the right to privacy implied in the First Amendment's protection of freedom of speech and association is violated when the state discloses the names of those who sign petitions seeking to place a referendum question on the ballot. The high court announced Jan. 15 that it would review the case, with arguments likely in April.

The issue arises in the context of Washington’s Referendum 71 last fall, in which groups supporting traditional marriage sought to overturn a law that extended rights and benefits given to same-sex domestic partnerships.

Sponsors of the ballot initiative went to court to keep the names from being released under the state’s Public Records Act, claiming disclosure would violate their right to anonymous speech and to association and would subject signers to threats and harassment. They pointed to Web sites that promised to post the names on the Internet with the goal of encouraging gay-rights supporters to have “uncomfortable” conversations with petition signers.

James Bopp Jr., lawyer for the group that seeks to prevent disclosure of the names, said the Court had recognized a right of “associational privacy” in some cases, especially when it relates to joining organizations or taking positions on controversial matters.

“The issue is arising with greater frequency across the country,” wrote Bopp, because changes in technology are making it easier to publicize names and to subject advocates to “harassment and intimidation.”

A district judge issued an injunction barring release of the names last September, but the 9th U.S. Circuit Court Appeals reversed. The names could have then been released, but on an emergency appeal, Justice Anthony Kennedy granted a stay of the injunction. The 9th Circuit then ruled more fully, in favor of disclosure, but it preserved the stay pending Supreme Court action.

Bopp, lawyer for Protect Marriage Washington, which brought the suit, said Jan. 15 in a statement, “We are pleased that the Supreme Court has agreed to hear this case that seeks to protect the rights of citizens who support a traditional definition of marriage to speak freely and without fear. No citizen should ever worry that they will be threatened or injured because they have exercised their right to engage in the political process. The First Amendment protects citizens from being required to disclose their identity when they are engaged in political speech.”

Bopp asserts that laws like Washington state’s, which require public disclosure, should be subjected to “strict scrutiny,” the most difficult standard of review, because of the importance of the privacy rights of petition signers.

Washington Secretary of State Sam Reed, who is defending disclosure of the names, also issued a statement: “We welcome an opportunity to go to the highest court in the land to defend Washington citizens’ strong desire for transparency, openness and accountability in government, and the public’s belief that our state and local public documents must be available for public inspection.”

Reed added, “It is not surprising that the Supreme Court would be intrigued by a nationally-watched case dealing with disclosure, First Amendment considerations and public discourse during the Internet era.”

In his statement and in his brief, Reed also said the petition process was public throughout, giving signers no expectation of privacy. He also argued that petitioning for a referendum to be placed on the ballot amounts to a legislative act, which should be public.

The Supreme Court’s action on the Washington case is the second time last week that it considered privacy issues relating to anti-gay-rights referenda. By a 5-4 vote, the Court last week barred broadcast of the San Francisco trial on the Proposition 8 ballot initiative in California that banned same-sex marriage there.

In that case, as with the Washington state dispute, opponents of gay marriage asserted that publicity about their identities would subject them to harassment and threats. The high court ruling in the California case sympathized with that assertion, stating that “applicants have demonstrated the threat of harm they face if the trial is broadcast.”

The Court has recognized the right of privacy and anonymity in disputes related to associational rights. In the landmark case NAACP v. Alabama in 1958, the Court said the civil rights group could not be compelled to release its membership lists. In McIntyre v. Ohio Elections Commission in 1995, the Court said those circulating campaign literature could not be compelled to identify themselves to the state.

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