Yesterday, in Doe v. Reed, Federal District Judge Benjamin Settle rejected an as-applied challenge on First Amendment grounds to a Washington state law requiring the public disclosure of the names of initiative signers. The initiative in question would have blocked the legislatively approved recognition of domestic partnerships. (The initiative made it onto the state ballot but lost, the first time voters in a statewide ballot contest supported same-sex partnerships.) A year ago, the Supreme Court rejected, 8-1 (Thomas dissenting), a facial challenge to the same law.
Judge Settle reviewed the evidence gathered over two-plus years supporting the argument that petition signers had been subjected to threats and harassment. The claims followed a theme developed by anti-SSM activists nationwide. Highlighting such incidents has been part of the ongoing effort to find some “harm” caused by the SSM movement. The evidence in Washington state comprised allegations by initiative supporters, including:
*one supporter received an angry text message from his brother; was “mooned” by someone in a passing car; and was “flipped off” by some people in passing cars;
*one preacher was told by someone that his church would be picketed in an “appropriate” way, although no picket occurred;
*while collecting initiative signatures in a public place, one was glared at by two women who told him, “we have feelings too”;
*several had their pictures taken while in public places;
*some were sent notes containing vulgar language;
*one claimed a death threat was made on a website, but could not identify any such threat on the site, and withdrew the claim.
Other claims involved “bothersome” phone calls, and name-calling using words like “homophobe” and “fascist.” A couple of claims involved alleged physical threats, which were reported to police. There were, however, apparently no prosecutions, much less convictions, for actual threats. There was no actual physical violence. Most of the alleged incidents could not be tied to the initiative, since they were not directed at mere petition signers but to leaders and spokespersons opposed to gay rights over several years.
In Washington, the evidence of intimidation and harassment was unimpressive. The plaintiffs’ attorneys had access to the names and addresses of all those who signed the petition, and all those who contributed funds to the drive, but produced no evidence beyond that pertaining to a few very high-profile individuals. This omission was itself significant, since it suggested the incidents, such as they were, and disputed as they were, were very episodic and isolated. It hardly amounted to a campaign of intimidation by gay-marriage supporters. The court concluded that “the evidence supplied by Doe purporting to be the best set of experiences of threats, harassment, or reprisals suffered or reasonably likely to be suffered by [petition] signers cannot be characterized as ‘serious and widespread.’”
Of course, as the district court noted, it is troubling any time a person is threatened with physical violence. Those cases can, and should, be prosecuted, and there is nothing in the First Amendment that prohibits such prosecution. But in Washington state, at least, there appears to have been little or no evidence of such threats. The rest of the evidence suggested only that some of the people who were about to have any recognition and legal protection of their relationships stripped away had strong feelings about that; that some of them confronted those who were sponsoring such efforts against their families in a public setting where signatures were being gathered; that some of that hostility was expressed strongly, and was experienced as hostile and unwelcome by those who were confronted; and that on a few occasions — out of countless public discussions of the issue – the feelings of gay-marriage supporters were indeed stated in an overbearing (though not illegal) way.
The law protects us from violence and threats of violence. But it does not protect us from criticism, even harsh criticism, when we take public positions on public matters. It does not protect us from having our feelings hurt or from having others think poorly of us. The point goes beyond the narrow First Amendment claim, however, and touches on a larger cultural and democratic interest in wide-open, robust, and sometimes even impolite debate. Justice Scalia said it best in a concurring opinion at an earlier stage of this very litigation:
There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.