The U.S. Supreme Court on Wednesday appeared skeptical of the argument that signatures on a referendum to repeal Washington state’s domestic partnership law should be kept private.
The court heard the case Doe v. Reed, which arose when same-sex marriage opponents who sponsored the referendum said the names of petition signers should not be released under the state’s Public Records Act for fear of ensuing intimidation or harassment. Under Washington law, the names of individuals who sign initiatives or petitions seeking to adopt or revoke a law become public records.
James Bopp, the attorneys for Protect Marriage Washington and the anonymous petitioners in the case, asked the court to find that the First Amendment prevents the names of petition signatories from becoming public. Bopp argued that because petition signatories may suffer intimidation, harassment, and economic boycotts, people would be less likely to participate and it would have a "chilling effect" on political speech.
Several justices appeared unsympathetic to portions of Bopp’s harassment argument, believing that criticism of personal political views was a natural result of the American system of government.
"Running a democracy takes a certain amount of civil courage. The First Amendment does not protect you from criticism, or even nasty phone calls," Justice Antonin Scalia said.
Citing the fact that for the first "century of our existence" voting occurred out in the open, Scalia said that Bopp was asking the court to "go into a whole new field, where we’ve never gone before." Scalia later added that the argument was too "touchy-feely."
The justices agreed that threats and acts of violence because of political views were unacceptable, but did not appear convinced that the First Amendment was the correct mechanism to prevent these acts.
The court also appeared to carefully differentiate between participating in government through the legislative process — by signing a referendum petition, for example — and advocating political views by passing out leaflets. The court has previously decided that the First Amendment does protect people from having to disclose their names on political statements.
Several justices asked Bopp if voters would have a serious interest in obtaining the names of petition signers for various reasons, including detecting fraud. Justice John Paul Stevens, hearing his final argument before the court, inquired as to whether Bopp believed there was a legitimate public interest in knowing who signed a petition in order to engage them in public debate.
Bopp responded that such concerns were "marginal."
Washington Attorney General Robert McKenna opened his argument with an explanation of when the names became public information. Several justices broke in almost immediately to ask about what personal information could be publicly disclosed and still be consistent with the First Amendment.
McKenna was also questioned about the potential intimidation of voters. Justice Ruth Bader Ginsburg asked whether there was any history in the state of signers of controversial petitions being harassed. McKenna responded that there was no evidence of harassment, even over a measure allowing assisted suicide.
But Justice Samuel Alito seemed less convinced, asking McKenna whether his office was willing to give out the home addresses of its employees so people could visit and have "uncomfortable conversations" regarding controversial political views.
"We would not, Justice Alito . . . because they can come to the office and have uncomfortable conversations with them, which I can personally attest happens with some regularity," McKenna said before affirming Scalia’s query that some of the information, such as a name and office address, is considered a matter of public record under state law anyway.
The Reporters Committee filed a friend-of-the-court brief in the case, along with several other media organizations, arguing that citizens who utilize a state constitutional provision to repeal legislation are engaged in state action, not personal speech, and the public has an interest in holding state actors accountable.