Justices to hear case on disclosure of names on a petition

By Robert Barnes
Washington Post Staff Writer
Saturday, January 16, 2010

The Supreme Court on Friday intervened for the second time this week in a question of whether those who oppose expanding gay rights face threats and harassment by public disclosure of their views.

The court agreed to decide whether it was unconstitutional for the state of Washington to make public the names of 138,500 voters who signed a petition for a referendum on whether to overturn a state "everything-but-marriage" law. The statute expanded rights for those who entered into domestic partnerships, both homosexual and heterosexual.

The group that championed the referendum said rival organizations planned to make the petitioners' names available on the Internet and subject them to "threats, harassment and reprisals." Those groups denied such intentions, and the state said its public-records law required disclosure of the names as part of the transparency that comes with democratic participation.

Protect Marriage Washington was successful in getting the issue to referendum last fall, but not at the ballot box. Washington voters endorsed the law by a margin of 53 percent to 47 percent.

But the petition-signers' names have not been disclosed. The Supreme Court blocked the release in October while considering whether the case presented a significant question about political speech. The U.S. Court of Appeals for the 9th Circuit said Washington's public-records law did not violate constitutional protections.

"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," said Washington Secretary of State Sam Reed (R), who has defended the law.

The court earlier this week ruled 5 to 4 that a federal judge presiding over a trial in San Francisco contesting California's voter-approved ban on same-sex marriage may not transmit video of the proceedings to other courthouses. Proponents of Proposition 8 asked the court to act, warning of "harassment, economic reprisal, threat and even physical violence" against witnesses in the case if the video were widely distributed.

The conservative Christian group that started the petition drive in Washington is represented by James Bopp Jr., who has frequently challenged campaign finance laws before the Supreme Court. He told the justices in court papers the issue of whether confidentiality should be protected "is arising with great frequency across the country, as changes in technology have made it possible for individuals and groups seeking to prevent public debate from occurring to obtain the names and contact information of petition signers and post that information online to encourage harassment and intimidation."

He mentioned a group that has posted on its Web site information about those who signed petitions against same-sex marriage in Arkansas, Florida, Massachusetts and Oregon.

A district court judge agreed with the group that the disclosure violated constitutional protections of anonymous political speech. But a 9th Circuit panel said there was nothing anonymous about signing petitions -- other people who sign see the petitioner's signature, as do those who must check the accuracy of the information and representatives of both sides of the referendum question.

The appeals court said that Washington state had good reasons for its Public Records Act, and that there was no claim "that the state's interests are at all related to the suppression or regulation of expression."

The court has not said when it will hear the case, but the justices ordered a briefing schedule that would allow it to be included on the court's last oral arguments of the term, in April. The case is John Doe v. Reed.

The court also accepted four other cases Friday, including Monsanto v. Geertson Seed Farms, its first case about genetically engineered crops.

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