The High Court: Ruling on naming petition signers leaves room for interpretation

Washington Post Staff Writer
Monday, June 28, 2010

Tea partiers, gay rights activists (and opponents), Internet political provocateurs, take note: The Supreme Court last week issued an opinion that reflects the justices' -- and society's -- conflicting views on your role in the political turmoil of our times and the messy aspects of democracy.

How to protect those who sign a petition expressing unpopular political views, either from a government whose actions are being challenged or from other members of the public using technology to confront petition signers in new ways, animated the court's deliberations in Doe v. Reed. It concerned an unsuccessful referendum that would have overturned the state of Washington's domestic partnership law for gay and older couples.

The court's ruling was deceptively lopsided: It held 8 to 1 that, in general, people who sign referendum petitions should not expect the First Amendment to protect disclosure of their names. The majority reasoned that there are legitimate reasons that states allowing referendums and initiatives would want to require the disclosure of names on a petition forcing the government to do something.

But the decision could be more of a beginning than an end. That's because the other way to look at the decision is that a majority of the court decided that signing one's name to a petition also is a form of political expression that, in some cases, warrants First Amendment protection.

The decision could carve out a much more active role for the judiciary in determining in certain instances whether disclosing names brings a reasonable probability of "threats, harassment or reprisals" from government officials or from other members of the public.

Thus, Chief Justice John G. Roberts's compact 13-page opinion concerning a petition drive in the state of Washington grew to 63 pages of conflicting viewpoints. Six of the nine justices wrote separately to express themselves.

Two were crystal clear. Justice Clarence Thomas said releasing the names of petition signers under Washington's public records law violates the First Amendment's protection of the right of association. The man on the court he agrees with most, Justice Antonin Scalia, said just the opposite.

"I doubt whether signing a petition that has the effect of suspending a law fits within 'the freedom of speech' at all," Scalia wrote. It is an act of legislating, he said, and certainly the First Amendment does not contain a right to legislate without public disclosure.

But within the extremes there was much disagreement. Washington said it had good reason to name those who sign petitions such as the one putting the state's "everything but marriage" act before voters. It helps ensure that there is no fraud involved in gathering the names for the petition and, separately, the public has an "informational" interest -- because the state's business should be conducted in the open.

Two groups, and KnowThyNeighbor, said they were going to compile the names into digital, searchable form and encourage "uncomfortable" conversations with those they said oppose gay rights. The names have yet to be disclosed, and the court's decision said petition signers still have the right to convince a lower court that releasing them would subject the signers to harassment.

Justice Samuel A. Alito Jr. said the petition signers should win that battle. He was the most outspoken in worrying about the power of the Internet to help assemble what the signers had called a "blueprint for harassment."

"Anyone with access to a computer" could assemble a dossier of information on signers including the purchase of their home, information on social networking sites, the names of their spouses, "directions to their homes," their telephone numbers and even "articles in local papers about their children's school and athletic activities," Alito wrote.

In the background of the case was California's Proposition 8, that state's successful move to ban same-sex marriage. California, notably, keeps petitions secret, but those who publicly supported or gave money to the cause were subjected to what Alito called "widespread harassment and intimidation."

Scalia replied that "civic courage" is required to be part of the democratic process in the "Home of the Brave." Others were only slightly more sympathetic. Justice Sonia Sotomayor, joined by two other justices, said participating in the process of "legislating by referendum is inherently public."

Recalling the court's rulings in cases involving the civil rights struggles, she said prohibiting disclosure might be available only when it could be shown the state was not being neutral, or when there is a "reasonable probability of serious and widespread harassment that the state is unwilling or unable to control."

Justice John Paul Stevens sided with the majority. He wrote separately to note "this is not a hard case."

The court has put itself in position to decide whether it will be so easy in future tests.

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