Thursday, June 24, 2010

Doe v. Reed Opinion Analysis: No Right to be Anonymous on a Ballot Initiative Petition?

In Doe v. Reed, the Court today rejected a facial First Amendment challenge to the disclosure of names on a petition seeking a ballot initiative. Chief Justice Roberts wrote the Opinion for the Court; only Thomas dissented, although there are several concurring opinions: Breyer, Alito, Sotomayor (joined by Stevens and Ginsburg), Stevens (joined by Breyer), and Scalia.

As we discussed in our post on the oral argument here, the background facts are bit confusing, as the situation involves the state of Washington's ballot initiative to negate SB 5688 (the "everything but marriage" for same-sex couples law) and the Washington Public Records Act (PRA),  RCW 42.56 that governs the disclosure of public records including petitions seeking a ballot initiative.

The Court's rather brief opinion - - - 13 pages - - - concluded that signing a petition for a ballot initiative is expressive political activity. (There was some discussion at oral argument that merely signing a petition doesn't really "express" anything).  The Court then noted two relevant considerations: that the setting is an  electoral one and that the state law is a disclosure requirement rather than a prohibition (citing Citizens United)

The Court articulated an "exacting scrutiny" standard:

requiring a ‘substantial relation’ between the disclosure requirement and a ‘sufficiently important’ governmental interest.”   To  withstand this scrutiny, “the strength of the governmental interest must reflect the seriousness of the actual burden on First Amendment rights.”

(Opinion at 7, citations omitted).  The Court found that the State's interest in "preserving the integrity of the electoral process by combating fraud, detecting invalid signatures, and fostering government transparency and accountability" sufficed to defeat the First Amendment challenge to disclosure of referendum signatures.  The Court therefore did not reach the State's other asserted interest, the so-called "informational interest."


Breyer's one paragraph opinion emphasized the balancing of interests, while Sotomayor's more extensive opinion stressed the character of initiatives and ballot referenda as creatures of state law.   Steven's opinion proclaims "This is not a hard case." 

Concurring, Scalia echoes some of his statements from oral argument and proclaims: "Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed," adding that "This does not resemble the Home of the Brave."  (Scalia, at 10).

Thomas, dissenting, takes the opposite view, arguing that the disclosure of referendum petitions chills citizen participation in the process.

The Court did not reach the "narrower challenge" of the plaintiffs that remains pending before the federal district court.   That challenge is an as-applied challenge contesting the disclosure of the names on this particular petition because it involves the controversial issue of same-sex marriage and relying on incidents in California.  (As the Court noted, however, the First Amendment challenge that the Court did reach might also be termed an "as-applied challenge" because it involves the application of the state's general public records act to the particular situation of ballot initiatives; the Court applied the standard for facial challenges because "plaintiffs’ claim and the relief that would follow— an injunction barring the secretary of state 'from making referendum petitions available to the public,'" — reach beyond the particular circumstances of these plaintiffs."  (Opinion at 5).

However, two concurring justices commented on the narrower challenge. 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."   (Alito at 3, emphasis added). 

On the other hand, Stevens (joined by Breyer) wrote that:

Any burden on speech that petitioners posit is speculative as well as indirect.  For an as-applied challenge to a law such as the PRA to succeed, 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. Moreover, the character of the law challenged in a referendum does not, in itself, affect the analysis. Debates about tax policy and regulation of private property can become just as heated as debates about domestic partnerships.  And as a general matter, it is very difficult to show that by later disclosing the names of petition signatories, individuals will be less willing to sign petitions.  Just as we have in the past, I would demand strong evidence before concluding that an indirect and speculative chain of events imposes a substantial burden on speech.

(Stevens Opinion at 4, emphasis added).

Thus, while the narrow as-applied challenge was not addressed by the Court, two concurring opinions seek to advise the federal district judge regarding a ruling on that challenge.


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Wouldn't you say that Scalia was also advising about the remaining claim when he his concurrence found no viable First Amendment right at stake for the petition signers? And, of course, Thomas, agreeing with the district court that the statute was unconstitutional, would undoubtedly agree that the plaintiffs qualify for an "exception" to the disclosure requirement.

Posted by: Art Leonard | Jun 24, 2010 11:43:55 AM

Yes! Although I found it noteworthy that the Alito and Stevens concurring opinions were so explicit on the matter.

More of Professor Art Leonard's terrific commentary on the case can be found at:

Posted by: RR | Jun 24, 2010 4:53:58 PM

This case is interesting indeed. The Ninth Circuit recently cited Doe v. Reed to disclose the identity of anonymous online speakers. ( I wonder how far courts will extend this compelled disclosure in light of the First Amendment.

Posted by: Scott Talkov | Jan 19, 2011 12:16:20 AM

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