Wednesday, October 19, 2011
Doe v. Reed: On remand, federal district court rejects as-applied challenge and orders names disclosed
In a remand from the United States Supreme Court, the district court's opinion ordered disclosure of the names of those who signed an anti-same-sex marriage petition in Washington state in accordance with the state's usual processes.
Recall that in Doe v. Reed, decided by the United States Supreme Court in June 2010, the Court rejected a facial challenge to the state of Washington's Public Records Act (PRA), RCW 42.56 that governs the disclosure of public records including petitions seeking a ballot initiative. The ballot initiative at issue sought to repeal the "everything but marriage" law for same-sex couples and was spear-headed by the controversial Protect Marriage organization. The John Doe plaintiffs challenged the public disclosure of their names as a violation of the First Amendment.
The Court's opinion in Doe v. Reed was a clear rejection of the facial challenge, with only Justice Thomas dissenting, but two concurring opinions proffered views on the as-applied challenge to be decided by the district court on remand. Alito's concurrence contended that the plaintiffs have a "strong" First Amendment argument in light of the "widespread harassment and intimidation suffered by supporters of California’s Proposition 8." On the other hand, Stevens (joined by Breyer) wrote that " Any burden on speech that petitioners posit is speculative as well as indirect. . . . there would have to be a significant threat of harassment directed at those who sign the petition that cannot be mitigated by law enforcement measures."
United States District Judge Benjamin Settle agreed with Justice Stevens. In a careful and detailed 34 page opinion resolving the cross motions for summary judgment, Judge Settle considered all the evidence before him that the John Doe plaintiffs were harassed, which included "harassing" acts such as being "glared" at or receiving an angry text from one's own brother. Here is one of the more extensive examples:
Roy Hartwell, John Doe # 4. Roy Hartwell (“Hartwell) testified about R-71 [the referendum] in front of the Washington State legislature, gathered signatures for the petition in public places, and participated in television interviews regarding R-71. Stafford Decl., Ex. D (Hartwell Dep.) 7:13-8:18, 16:1-17:16, 25:17-23, 30:24-31:10. Hartwell testified in his deposition that one harassing incident involved two ladies that glared at him and one said “we have feelings too.” This occurred while Hartwell was collecting signatures for R-71 at a grocery store. Id. 18:3-12 (also discussing that the comment appeared to shake an older lady up, who signed the petition anyway). Hartwell also testified about others who he believed harassed him about the R-71 petition. See, e.g., id. 19:1-20:25 (discussing a woman who approached him at the grocery and asserted she would bring her friends to the church, which did not occur); 21:10-22:16 (discussing a lady who took Hartwell and Hartwell’s wife’s picture while they were collecting signatures at a Wal-Mart and said she would post them on Facebook to enable her friends to see what the Hartwells look like; Hartwell is unaware if the Facebook posting occurred); 22:23-23:10 (discussing a customer at Wal-Mart that asked a manager to ask the Hartwells to leave; the manager did not ask them to leave). In none of the events described by Hartwell did he feel the need to contact the police. See id. 23-11-25:9.
Judge Settle found that the John Doe plaintiffs did not produce the type of serious and widespread harassment necessary to prevail on their as applied challenge. Additionally, the John Doe plaintiffs "supplied no evidence that police were or are now unable or unwilling to mitigate any claimed harassment or are now unable or unwilling to control the same, should disclosure be made." While certainly people should be civil in their disagreements - - - the "very foundation of preserving a free and open society" - - - the judge found that the facts simply did not "rise to the level of demonstrating that a reasonable probability of threats, harassment, or reprisals exists as to the signers of R-71, now nearly two years after R-71 was submitted to the voters in Washington State."
The judge therefore lifted the injunction preventing the signers of the petition and granted summary judgment in favor of the defendants.