Constitutional Law Prof Blog

Seventh Circuit Dismisses Free Speech, Patronage Case

The Seventh Circuit today rejected the free speech claim of a frustrated candidate for promotion in the Cook County Sheriff's Office.  The case, Brown v. County of Cook, arose out of a sargeant's claim that he was denied promotion to lieutenant after he failed to support the Sheriff--and indeed supported his opponent--in the Sheriff's earlier election and re-election campaigns.

The plaintiff, Thomas Brown, brought the case under Rutan v. Republican Party of Illinois, another political patronage case coming out of Illinois, holding that "[u]nless these patronage practices are narrowly tailored to further vital government interests, we must conclude that they impermissibly encroach on First Amendment freedoms."

But Brown didn't even get that far.  Instead, the case turned on whether patronage was even a motivating factor.  Judge Posner wrote that the Seventh Circuit just this month affirmed its burden-shifting approach to that question:

If Brown presented evidence at the summary judgment phase of the litigation that could convince a reasonable jury that his political affiliation was a motivating factor in his being passed over, the burden would shift to [Sheriff] Sheahan to present evidence that could convince a reasonable jury that Brown's political affiliation was not a "but for" cause of the discrimination. . . .

To restate [our standard] in simpler terms, if Brown can prove that he would have been denied promotion because of his political affiliation alone, then to avoid an adverse judgment Sheahan would have to show that even so Brown would have been denied promotion for some other reason, in which event his political affiliation had no causal significance.  If Sheahan can meet that burden, it is as if he had told Brown "I can't promote you because there's no opening for another lieutenant, but if there were I still wouldn't promote you, because you made a donation to my opponent five years ago."  There would be no constitutional violation because if Sheahan was being truthful Brown would not be worse off as a result of his political affiliation than if he'd contributed to Sheahan's campaign instead.

Op. at 2-3.

The problem here: Brown had no evidence.  None.  And what he did produce did far more to entertain Judge Posner than it could ever do to prove his case.  The opinion's a good read, and the case is a good lesson in how not to win a First Amendment claim under Rutan.

SDS

Occupy Switzerland?: European Court of Human Rights Finds A Violation of Free Association Rights of RHINO

RHINO - - - an acronym for two alternative French slogans, translated as “Vacant buildings inhabited again” and “Let’s carry on living in the buildings we occupy” - - - was an association established in Geneva, Switzerland in 1988.  

After years of activities consistent with its slogans, including squatting in a building with its famous "red horn" (pictured left), legal action terminated not only the possession but the organization itself.  Owners of the occupied properties sought a dissolution of the RHINO association "on the grounds that its aims were unlawful."  The Swiss courts agreed to dissolve the association. 

The European Court of Human Rights, however, has held that the dissolution violated Article 11, "freedom of association," of the European Convention on Human Rights.  The dissolution of the association was not proportionate and necessary in a democratic society, and there was no showing that alternative less restrictive measures were available to prevent "disorder."  The Court therefore ordered money damages (65,651 euros) and costs to be paid by Switzerland to RHINO.

The opinion is only available in French, but there is an official English press release.

There were also related eviction proceedings in the Swiss courts; these are also before the European Court of Human Rights.

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[image via]

Wisconsin Law School Conference: The Constitutionalization of Labor and Employment Law?

Wisconsin has recently been the site of several recent controversies regarding labor law, including academic labor, and the University of Wisconsin Law School Conference, The Constitutionalization of Labor and Employment Law?, on October 28-29, 2011 in Madison is sure to address some of these issues. 

Additionally, the conference organizers note that recent "U.S. Supreme Court cases have contained much legal discussion at the intersection of constitutional law concepts and the law of the workplace – both in the public-sector workplace where constitutional state action exists and in the private-sector workplace where it does not. Recent cases include: Garcetti v. Ceballos, Christian Legal Society v. Martinez, City of Ontario v. Quon, NASA v. Nelson, Engquist v. Oregon Dept. of Agricultural, and Ricci v. DeStefano."

The 5 panels are Equal Protection, 13th Amendment, Workplace Privacy, Freedom of Association and Freedom of Speech.  

More information, including registration information is here.  The "symposium fee is waived for full-time members of academia," pre-registration is required and the deadline is October 18. 

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Planned Parenthood of Kansas v. Brownback: Federal Judge Issues Preliminary Injunction

 In a Memorandum and Order today, Judge J. Thomas Marten of the United States District of Kansas, enjoined the enforcement of the Kansas defunding of Planned Parenthood statute, Section 107(l) of H.B. 2014, 84th Leg. (Kan. 2011).  The judge enjoined the Kansas state defendants from any further enforcement or reliance on  athe state statute and directed them to allocate all Title X funding for State Fiscal Year 2012 without reference to Section 107(l), and to provide continuation grant funding to the Planned Parenthood.

The Kansas statute, Section 107(l) of H.B. 2014, which took effect on July 1, 2011, defunds Planned Parenthood by providing that Kansas subgrants of Title X funds are "exclusively prioritized" to public entities, or secondly, to hospitals or federally-qualified health centers (FQHCs). As Planned Parenthood is a private entity which is neither a hospital nor a FQHC, it cannot successfully apply to Kansas to receive Title X funds.

Planned Parenthood argued that the statute violated the Supremacy Clause, in that in conflicted with federal law under Title X, and that the statute violated its First Amendment rights.  The judge found there was a substantial likelihood of success on both of these claims.

First, however, the judge considered the state's argument that any relief was barred by the Eleventh Amendment.  The state defendants argued that the requested relief therefore must include an order for the State to sign a contract with and pay money to Planned Parenthood, thereby violating the State’s sovereign immunity.  Rejecting this argument, the court stated that it found "the injunctive relief sought by Planned Parenthood will not violate the Eleventh Amendment, as it seeks an order which would simply preclude the defendants from any decision allocating Title X funding on the basis of the allegedly unconstitutional Section 107(l).”

As to Planned Parenthood's pre-emption claim, the judge noted that there were several cases holding that a state's imposition of additional eligibility requirements under Title X are invalid as creating an unconstitutional conflict.  The state statute did not simply render uncertain whether or not Planned Parenthood could receive state funding; it made it impossible for the organization to be funded. 

Regarding Planned Parenthood's First Amendment claim, the judge distinguished it from unconstitutional conditions cases such as Rust v. Sullivan.  Here, it was not that there were conditions attached to the funding, but that an organization was deemed ineligible based entirely on "participation in unrelated political conduct. This punitive aspect of the statute, arising from the plaintiff’s protected association with abortion related services, renders the statute unconstitutional."  Thus, the judge focused on the First Amendment right of association.

Discussed in both of the Planned Parenthood claims was the legislative intent of the statute.  Was the intent of the statute directed at Planned Parenthood?  The judge soundly rejected the state defendants "suggestion that the statute was simply designed to prioritize funding to entities who have a higher percentage of poor clients" as a post-hoc, “litigation-spawned” attempt to find some alternative, benign rationale for the statute.  The judge also considered the statement of the amendment's sponsor, Lance Kinzer, including on the floor of the House and on his facebook page:

Delighted to announce that the KS House just approved my floor amendment to deny Title X funding to Planned Parenthood for the balance of FY2011. The vote was 91-26, a great victory on the first pro-life floor vote
of the session.

Similarly, Governor Brownback, who signed the statute into law, was quoted by The Lawrence, Kansas Journal-World as hailing the Kinzer amendment on the grounds that it would “zero out funding of Planned Parenthood.”  The judge found these were not isolated statements, but indicative of legislative intent both to "punish" Planned Parenthood in contravention of its free association First Amendment rights and to contradict the direct mandate of the federal law.

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Legislative Vote is not Protected Speech, Court Rules

The Supreme Court ruled today in Nevada Commission on Ethics v. Carrigan that a legislative vote is not protected speech under the First Amendment and that a state recusal statute therefore did not violate the Constitution.

The ruling leaves untouched the widespread practice in states and Congress to require legislators to recuse themselves from voting when they have a conflict of interest.  The Nevada law at issue here reached farther than most--perhaps any--other recusal law.  And so the ruling, unanimous on the core holding that recusal laws do not violate the First Amendment, gives wide latitude to states and Congress in their efforts to enact and enforce aggressive and expansive recusal laws.

The case involved Nevada's Ethics in Government Law, which requires public officials to recuse themselves from voting on, or advocating the passage of or failure of, "a matter with respect to which the independence of judgment of a reasonable person in his situation would be materially affected by . . . [h]is commitment in a private capacity to the interests of others."  Under the Law, such commitment includes, e.g., a member of the officer's household or the officer's relative and--at issue here--"[a]ny other commitment or relationship that is substantially similar."

Petitioner Michael Carrigan was an elected member of the Sparks City Council.  As a Commissioner, Carrigan voted to approve an application for a hotel and casino project, the "Lazy 8."  But, as it turned out, Carrigan's long-time friend and campaign manager, Carlos Vasquez, was a paid consultant for the Red Hawk Land Company, which proposed the Lazy 8 project and would benefit from it.  Thus the conflict.

 

Before the vote, Carrigan consulted with the City Attorney, who advised him that disclosing the relationship would satisfy his obligations under the Law and that he could go ahead and vote on the measure.  But after Carrigan voted, the Nevada Commission on Ethics initiated an investigation and found that Carrigan violated the Law. 

Carrigan sued in state court, arguing that the Law violate the First Amendment.  A divided Nevada Supreme Court agreed, applied strict scrutiny, and ruled the Law unconstitutionally overbroad.

The Supreme Court reversed.  In a unanimous opinion by Justice Scalia, the Court held that the Law did not violate the Speech Clause in the First Amendment.  All but Justice Alito joined Justice Scalia's opinion that Carrigan's legislative vote wasn't even protected speech; Justice Alito concurred in part and concurred in the judgment, but wrote that Carrigan's legislative vote was speech (but that the Law did not violate the First Amendment).

Justice Scalia wrote that early congressional recusal laws and rules--including laws and rules that were in place when Congress voted on the First Amendment--along with the absence of any objection to such laws on speech grounds suggest that recusal laws are consistent with the First Amendment.  Moreover, states have a long tradition of enacting recusal laws. 

Justice Scalia wrote that Carrigan's vote wasn't speech, because he was simply channeling the will of his constituents (and not engaging in an independent expressive act):

[A] legislator's vote is the commitment of his apportioned share of the legislature's power to the passage or defeat of a particular proposal.  The legislative power thus committed is not personal to the legislator but belongs to the people; the legislator has no personal right to it. . . .  In this respect, voting by a legislator is different from voting by a citizen.  While "a voter's franchise is a personal right," "[t]he procedures for voting in legislative assemblies . . . pertain to legislators not as individuals but as political representatives executing the legislative process.

Op. at 8.

Justice Alito concurred in the judgment, but disagreed that a legislative vote isn't speech.  Referencing Doe v. Reed (2010), holding that disclosure of signatures on referendum petitions does not violate the First Amendment, Justice Alito wrote,

Just as the act of signing a petition is not deprived of its expressive character when the signature is given legal consequences, the act of voting is not drained of its expressive content when the vote has a legal effect.  If an ordinary citizen casts a vote in a straw poll on an important proposal pending before a legislative body, that act indisputably constitutes a form of speech.  If a member of the legislative body chooses to vote in the same straw poll, the legislator's act is no less expressive than that of an ordinary citizen.  And if the legislator then votes on the measure in the legislative chamber, the expressive character of that vote is not eliminated simply because it may affect the outcome of the legislative process.

Op. at 3 (op. of Justice Alito).  But Justice Alito came to the same result as the others--that the recusal law did not violate the First Amendment--because of Justice Scalia's evidence from early Congresses and from state practices. 

Justice Kennedy concurred with Justice Scalia's opinion but wrote separately to warn that the Nevada Law could be applied to restrict or to chill protected speech and association.  But the problems he raised were not before the Court.

SDS

[Image: Sparks City Hall, City of Sparks web-site]

Draft EO Under Attack

President Obama's draft executive order requiring government contractors to disclose their political donations came under attack on two fronts today--in a joint hearing by the House Committee on Oversight and Government Reform and the House Committee on Small Business, and in a letter from a bipartisan quartet in the Senate.

The draft EO requires that "all entities submitting offers for federal contracts to disclose certain political contributions and expenditures that they have made within the two years prior to submission of their offer."  This was the White House's answer to the failure of the Disclose Act in the Senate--a modest attempt to shine light on the political activities of government contractors, the only sector over which the executive might require such disclosure without the aid of Congress.  (The Disclose Act itself was a modest attempt to shine light on the political activities of corporations in the wake of Citizens United v. FEC, the Supreme Court case last term that overturned spending limits on corporations and labor unions under the First Amendment, but that upheld disclosure requirements.)

But the draft EO hit a roadblock: Charges in Congress that it would polticize government contracting, and allow the administration to target its political enemies.

Those worries hit a high point today in the House joint committee hearing, titled "Politicizing Procurement: Will President Obama's Proposal Curb Free Speech and Hurt Small Business?"  The hearing was stacked with opponents of the draft EO, all of whom testified that the draft EO would, well, curb free speech and hurt small business.  The lone supporter (other than the OMB rep), representing the Women's Chamber of Commerce, testified that the draft EO would increase transparency and ensure that procurement is based on "fair competition and not unscrupulous, undisclosed "pay to play" campaign donations."  The administration sent OMB Administrator for Federal Procurement Policy Daniel Gordon as a compromise fter Jack Lew, the head of OMB, declined to appear (sparking threats of subpoena by the committee chairs).

At the same time, Senators Joe Lieberman, Claire McCaskill, Susan Collins, and Rob Portman sent a letter to President Obama opposing the draft EO because it would politicize procurement.

There were even some murmurings that President Obama lacked authority to issue the EO--that it wasn't sufficiently tied to federal procurement to come within executive authority.

The Hill provides political coverage here.  We last posted on disclosure in the wake of Citizens United here, on Rep. Van Hollen's suit against the FEC.

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Senate Judiciary Hearing on Fair Elections Now Act

The Senate Judiciary Committee Subcommittee on the Constitution, Civil Rights and Human Rights yesterday held a hearing titled, "The Fair Elections Now Act: A Comprehensive Response to Citizens United." 

The Subcommittee considered S. 750, the Fair Elections Now Act, which creates a public financing system for congressional elections.  The system would encourage campaigns based on small donations (under $100) from in-state contributors: candidates would need a certain number of such donations to qualify for public financing; and the system would match small donations up to five times the donation.  The Act would also cap the rates for television ads for participating candidates at 80 percent of the lowest charge during periods before the election and provide advertising vouchers for participating candidates.

According to Monica Youn of the Brennan Center, who testified yesterday, participants in public financing systems can compete in a post-Citizens United world, provided that the system offers candidates sufficient funds:

But the experiences of jurisdictions with public financing demonstrates that, as long as such systems offer candidates sufficient funds to run viable campaigns, publicly financed candidates can run competitive and successful races even in the face of high levels of hostile independent spending.

Under the Fair Elections Now Act, participating Senate candidates would get $1.25 million, plus another $250,000 per congressional district in their state, split 40 percent for the primary and 60 percent for the general.  But they would also qualify for matching funds at five times the contribution for each contribution of $100 or less from in-state contributors, up to three times the initial allocation for the primary, and again for the general.  And they would benefit from the television ad cap plus vouchers (worth $100,000 for each congressional district in their state).

The Brookings Institution estimates that the average cost of a Senate seat in 2008 was $7,500,052.

In addition to Monica Youn, former Senator and co-chair of Americans for Campaign Reform Alan Simpson, and president of the Republican National Lawyers Association Cleta Mitchell also testified.

Supporters of the Fair Elections Now Act have a web-site that explains the bill.

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Federal Judge Dismisses Case Against Health Care Reform

Judge Norman Moon (W.D. Va.) today dismissed Liberty University v. Geithner, a case filed by state lawmakers, a doctor, Liberty University, and individuals challenging the federal healthcare reform legislation.  The plaintiffs argued that the legislation exceeds Congress's Article I authority, and that it violates the Tenth Amendment, the religion clauses, the Religious Freedom Restoration Act, equal protection, free speech and free association, Article I, Section 9's prohibition against unapportioned capitation or direct taxes, and the Guarantee Clause.

Judge Moon ruled that the state lawmakers lacked standing by virtue of their opposition to federal reform.  The doctor lacked standing, because his claims that reform may interfere with his ability to provide quality care for his patients were too vague.  Judge Moon ruled that other plaintiffs have standing; the case is ripe; and it's not barred by the Anti-Injunction Act.

On the merits, Judge Moon ruled that Congress acted within its authority under the Commerce Clause in enacting the individual health insurance mandate.  Judge Moon wrote that

The conduct regulated by the individual coverage provision--individuals' decisions to forego purchasing health insurance coverage--is economic in nature, and so the provision is not susceptible to the shortcomings of the statutes struck down by the Court in Lopez and Morrison.  Nearly everyone will require health care services at some point in their lifetimes, and it is not always possible to predict when one will be afflicted by illness or injury and require care.  The "fundamental need for health care and the necessity of paying for such services received" creates the market in health care services, of which nearly everyone is a participant." . . .  Far from "inactivity," by choosing to forgo insurance, Plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now, through the purchase of insurance.

Op. at 27 (quoting Thomas More Law Ctr., another challenge to federal health care reform).  Judge Moon had less trouble concluding that the employer mandate fell within Congress's Commerce Clause authority:

As defendants correctly point out, it is well-established in Supreme Court precedent that Congress has the power to regulate the terms and conditions of employment. . . .

The requirement imposed by the Act on employers to offer a minimum level of health insurance resembles the requirement imposed by the [Fair Labor Standards Act] on employers to offer a minimum wage upheld in Darby, and Plaintiffs fail to distinguish the two.

Op. at 31.

As to the Tenth Amendment, Judge Moon ruled that Congress had authority (and therefore the Tenth Amendment is no bar), Congress can regulate in the area of insurance (and therefore federal reform doesn't infringe upon an area reserved to the states, or upon state sovereignty), and state participation is voluntary (and therefore there's no commandeering of states or state officials).

As to the Establishment Clause, Judge Moon ruled that the religious exemptions to the individual mandate were permissible accommodations under Cutter v. Wilkinson.  The exemptions do not differentiate based on faiths, they are based upon a secular government purpose, and they do not lead to excessive government entanglement with religion.

As to Free Exercise and the Regligious Freedom Restoration Act, Judge Moon ruled that the federal law does not require the plaintiffs to pay for abortion, in violation of their religious practices.  "Indeed, the Act contains strict safeguards at multiple levels to prevent federal funds from being used to pay for abortion services beyond those in cases of rape or incest, or where the life of the woman would be endangered."  Op. at 43.

Judge Moon ruled that the religious exemptions also did not violate equal protection.  "Accordingly, with no reason to believe the exemptions were designed to favor or penalize a particular religious group, I proceed to analyze the exemptions under rational basis review."  Op. at 46.  The exemptions, toward the end of accommodating religion, clearly satisfied rational basis review.

As to speech and association, Judge Moon ruled that federal reform does not require the plaintiffs to support or associate with individuals who obtain an abortion in violation of free speech and association.  "The Act does not require health plans to cover abortion, and it ensures that at least one policy offered through each health benefit exchange will not cover non-excepted abortion services."  Op. at 49.  Any required association is minimal.  And the federal act does not require the plaintiffs to speak on, or to support, abortion.

As to taxes, Judge Moon ruled that the penalties for noncompliance are not taxes; instead they are "mere incident[s] of the regulation of commerce."  Op. at 52 (quoting Head Money Cases.)

Finally, as to the Guarantee Clause, Judge Moon rejected the plaintiffs' claim that the federal act gives Congress the ability to veto private choices about health care and thus gives the federal government absolute sovereignty over the people.  "The Act does no such thing; nothing prevents the people and their representatives from amending or repealing the Act through the democratic process."  Op. at 53.

SDS

Inspector General Reviews FBI Investigations of Advocacy Groups

The Department of Justice Office of the Inspector General released a report today concluding that the FBI did not target five domestic advocacy groups and one individual on the basis of their protected First Amendment activities between January 2001 and December 2006.  But the report also concluded that the FBI opened some investigations with a weak factual predication, unnecessarily labeled some activities as domestic terrorism, and maintained irrelevant information about targets' protected First Amendment activities too long.   

While the OIG concluded that the FBI did not target groups for their protected activities, it noted that the investigations and classifications did have "practical impacts":

However, in some cases, we found that the FBI extended the duration of investigations involving advocacy groups or their members without sufficient basis.  This had practice impacts on subjects, whose names were maintained on watchlists as a result and whose travels and interactions with law enforcement were tracked.  For example, the FBI continued to collect information about the international travel of two subjects of a PETA-related investigation after the point that the underlying justification for the case ceased to exist.

. . .

The domestic terrorism classification had impact beyond any stigma resulting from the public release of the documents under FOIA.  For example, persons who are subjects of domestic terrorism investigations are normally placed on watchlists, and their travels and interactions with law enforcement may be tracked. 

The OIG concluded that the FBI's activities by and large did not violate the Attorney General's Guidelines for Domestic FBI Operations.  (There was an exception: The FBI violated the Guidelines when it sent an agent "to look for terrorism subjects at an anti-war rally."  The OIG called this an "ill-conceived project on a slow work day.")  But it also noted that the 2008 Guidelines loosened the standard for retention of information related to attendance at public events.  (The report recommended tightening them back up.)

The report included six recommendations, two of which addressed the "inconsistent and erroneous" statements about the Pittsburgh Field Division's surveillance of a Merton Center anti-war rally.  The report also recommended requiring identification of a federal crime as part of the predication that triggers an investigation, revising the Guidelines to prohibit the retention of irrelevant "First Amendment material" from public events, clarifying when "First Amendment cases" should be classified as terrorism cases, and conducting a review of recent domestic terrorism cases out of the Pittsburgh Division.

The report examined FBI activities related to six different organizations and individuals: The Thomas Merton Center of Pittsburgh; PETA; Greenpeace USA; The Catholic Worker; Glen Milner (an individual); and The Religious Society of Friends. 

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Eleventh Circuit Grants En Banc on Orlando's Prohibition of Feeding in the Parks

An Orlando, Florida Ordinance requires a permit for a "large group feeding" in a public park, and further provides that:

The Director of Families, Parks and Recreation or his/her designee shall issue a Large Group Feeding Permit upon application and payment of the application fee as established by the City. Not more than two (2) Large Group Feeding Permits shall be issued to the same person, group, or organization for large group feedings for the same park in the GDPD in a twelve (12) consecutive month period.

The Ordinance was challenged by the First Vagabonds Church of God and the nonprofit group Food Not Bombs, with the district court ruling in favor of the Church on its free exercise claim, in favor of Food Not Bombs on its as-applied free speech claim, and permanently enjoined the Orlando from enforcing the Ordinance against Plaintiffs.  The Eleventh Circuit reversed in an Opinion entered in early July, over a vigorous dissent by Judge Rosemary Barkett.

Barkett wrote:

The members of Orlando Food Not Bombs (“Food Not Bombs”) began conducting weekly demonstrations in 2005 at a public park located in the heart of downtown Orlando in order to draw attention to society’s failure to provide food to all and express their opposition to war. They did so by displaying signs and wearing buttons and t-shirts with the Food Not Bombs’ logo and anti-war messages while simultaneously distributing free food to hungry and homeless persons. . . . .  this conduct constitutes expressive conduct entitled to First Amendment protection . . . .

Barkett distinguished Rumsfeld v. FAIR, on which the majority relied, and also considered the actions as a whole of Food Not Bombs rather than merely the handing out of food.  Barkett argued that a reasonable person viewing Food Not Bombs’ demonstrations would observe that they

• take place every week,
• at a centrally located public park,
• in an affluent neighborhood,
•  are visibly run by a group whose name itself, Food Not Bombs, conveys an unmistakable message,
• include activists holding signs or banners and wearing t-shirts and buttons to reinforce the group’s central Food Not Bombs message, and
• involve the distribution of food to the hungry and homeless in accordance with Food Not Bombs’ purpose.

A majority of the Eleventh Circuit judges have voted to grant en banc review, indicating that Judge Barkett's views will be seriously entertained by the full court.

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Trial Court Issues TRO in Second Round of Doe v. Reed

Judge Benjamin Settle (W.D. Wa.) last week issued a temporary restraining order to prevent the Washington Secretary of State from releasing names and addresses of supporters of R-71, the referendum measure to overturn Washington's domestic partnership law, until the court can schedule a hearing and rule on the merits.  Washington's domestic partnership law extends the benefits of marriage to state-registered domestic partners, including same-sex domestic partners.

The case is a continuation of the Supreme Court case Doe v. Reed issued earlier this summer.  In that case, the R-71 petition sponsor and certain signers argued that the Washington Public Records Act, which compelled disclosure of signers' names and addresses, violated the First Amendment for all referendum petitions (and not just the R-71 petition).  Plaintiffs alleged that petition signers would be subject to threats and harassment from supporters of Washington's domestic partnership law if their names and address were released.  The Supreme Court treated the claim as a facial challenge and rejected it.  The Court held that Washington had a sufficient interest in preserving the integrity of the electoral process, and that disclosure was sufficiently related to that interest because it complemented the Secretary's own signature verification process and thus helped to root out fraud and mistakes.  The Washington PRA thus satisfied the "exacting scrutiny" standard, requiring a substantial relation between the disclosure requirement and a sufficiently important government interest, in general.

The Court declined to rule on a second issue, whether the disclosure requirement violated the First Amendment as applied in this case.  (Plaintiffs raised this second issue in their original complaint, but the lower courts did not rule on it.)  The Supreme Court expressly noted that its ruling in Doe v. Reed did not foreclose success on this "as applied" challenge still pending at the district court.

After the district court reopened the plaintiffs' "as applied" challenge, plaintiffs moved for a TRO, alleging that threats and harassment directed toward supporters of Prop 8 in California would spill over into Washington and that some R-71 supporters received threats because of their opposition to Washington's domestic partnership law.  After briefing and argument, the district court granted the TRO, restraining the Secretary of State from releasing names and addresses of R-71 signers.

While the case still has to go to hearing, it's quite likely that the district court will rule in favor of the plaintiffs on the merits and bar the release of their personal information under the PRA: Judge Settle had to conclude that plaintiffs were likely to succeed on the merits as part of his TRO ruling (although the 2-page ruling doesn't contain this analysis), and he previously ruled that disclosure likely violated the First Amendment for all petitions in his preliminary injunction ruling that ultimately led to Doe v. Reed at the Supreme Court.

But however the case comes out on the merits, look for it to head next to the Ninth Circuit and perhaps again to the Supreme Court.

The Washington Secretary of State collects all the documents in this case, going back to the original complaint, here.

SDS