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Gay Rights Group Planning to Publicly Out Signers of Referendum Petition:

The Spokane Spokesman reports:

Petitions were being printed Tuesday for Referendum 71, which asks Washington voters to overturn a new law granting same-sex domestic partners many of the rights of spouses.

But those who sign the petitions may be in for a surprise. Some R-71 opponents have put up a Web site --- www.whosigned.org --- where they intend to post the names of all the required 120,577 signers.

Washington law apparently makes the names of petition signers publicly available, and if that's so then those who disagree with the petition certainly have a First Amendment right to publicize those names. To be sure, such public identification of people's political actions can deter people from exercising their political rights, and might even be intended to have that effect. (But the use of speech to pressure people through threat of social ostracism is constitutionally protected. And this is so even if the speech may have the effect of stimulating illegal discrimination against people -- Washington law prohibits employers from discriminating against employees based on their political activities -- and conceivably even violence.

(The site organizers are quoted as saying that "We think that it will help neighbors talk to each other," and the site also says that the publicity can help people verify the accuracy of the petitions. But I'm pretty sure that these won't be the main effects of the site's operation, and I suspect that they weren't the sole reasons for the site to be put up.)

Yet the rise in such outing tactics -- especially now that people can use the Internet to easily turn formally public records that are practically inaccessible into records that are truly available to everyone in seconds -- raises the question of just what records the government should make public, especially in unrestricted ways. Even if the government wants to let challengers check the validity of petition signatures, it can do so in ways that reveal less information, for instance by revealing only small but statistically valid samples, or (possibly) by requiring people who access the information to promise not to redistribute it (see, e.g., Seattle Times Co. v. Rhinehart, upholding such a protective order as to information released for purposes of litigation).

So my questions: Should referendum, initiative, recall, and candidate nomination signatures be treated more like voters' ballots, which are expected to be kept secret? Or should they be treated more like legislators' votes for proposed bills, which are expected to be made public? For that matter, how should we treat other political information, such as voters' party registration and the record of people's large campaign contributions, which is generally made public now? And what should be our ethical judgment about people's publicizing others' low-level political activity of this sort?

175 Comments

Federal Judge Temporarily Restrains Release of Names of Anti-Domestic-Partnership Petition Signers in Washington States:

Today's order, in Doe v. Reed, No. 09-5456BHS (W.D. Wash. July 29, 2009), reads in relevant part:

Plaintiffs seek to enjoin Defendants from releasing copies of the Referendum 71 petition to any third party. Specifically, Plaintiffs seek to prevent Defendants from releasing the names, addresses, and other contact information of individuals who signed the petition. Plaintiffs contend that release of this petition would result in a violation of Plaintiffs , and others' First Amendment rights....

To obtain preliminary injunctive relief, the moving party must show: (1) a likelihood of success on the merits; (2) a likelihood of irreparable harm to the moving party in the absence of preliminary relief; (3) a balance of equities tips in the favor of the moving party; and (4) that an injunction is in the public interest.

Having considered Plaintiffs' motion, Defendants' failure to appear or otherwise object to Plaintiffs' motion, and the remainder of the record herein, the Court concludes as follows:

1. For purposes of deciding Plaintiffs' motion for a temporary restraining order only, Plaintiffs have pled a colorable First Amendment claim, and have sufficiently demonstrated a reasonable likelihood of success on the merits.

2. Plaintiffs have demonstrated a reasonable likelihood of irreparable harm if Defendants release the contact information of those individuals who signed the Referendum 71 petition.

3. The balance of equities weighs in favor of Plaintiffs. Defendants and interested third parties will not be unduly prejudiced by delaying the release of this information until after this matter has been fully briefed, should Defendants ultimately prevail on Plaintiffs' motion for preliminary injunction.

4. A temporary restraining order is in the public interest. Plaintiffs' complaint raises constitutional issues potentially affecting over 100,000 voters....

The order lasts until Sept. 3, 2009, which is the date set for the hearing on a longer-lasting preliminary injunction pending a full decision on the merits. The plaintiff's constitutional argument — which the court said has "a reasonable likelihood of success on the merits," but which the court has not more expressly endorsed (since this is just a temporary restraining order aimed at maintaining the status quo pending a full hearing), is here, and here is an excerpt:

KnowThyNeighbor.org and WhoSigned.org[] have stated that they intend to make the names of the 138,500 petition signers available and searchable on the internet in an attempt to encourage Washington citizens to have a personal and uncomfortable conversation with any individual that has signed the petition. Ironically, the creators of WhoSigned.org have exercised their First Amendment right to remain anonymous, a choice the petition signers cannot make because of the Public Records Act. A temporary restraining order and preliminary injunction are necessary to protect Plaintiffs from suffering immediate and irreparable deprivations of their First Amendment liberties that will occur if Defendants release copies of the petition pursuant to the Public Records Act. As shall be set forth below and in Plaintiffs' Verified Complaint, individuals whose names are already connected with Referendum 71 have been subjected to threats, harassment, and reprisals simply for exercising their First Amendment freedoms of speech and association. If a temporary restraining order and preliminary injunction are not issued, each of the 138,500 Washington residents who signed the Petition will suffer similar deprivations of their First Amendment liberties.

For more on the subject, see the prevailing lawyer's press release.

My thought: I think there are plausible arguments that voter signatures shouldn't be publicly released by the government. Just as we have a secret ballot for the ultimate votes, we could have at least a quasi-secret signature system for the signing of referendum, initiative, recall, and candidate nomination petitions. It might not be fully secret — for instance, the government would know what you signed, though it doesn't know how you voted, and it's possible that the signatures would be briefly visible as other people are signing the petitions (though that could be minimized, for instance if there's just one signature per page, and each page is concealed after it's signed). But there are good reasons why we might choose to make it as close to a secret ballot as possible.

Yet I don't think that such a system is constitutionally mandated by the First Amendment, just as I don't think that a secret ballot is constitutionally mandated by the First Amendment. Signing a petition is a legally significant act, and if the government chooses to publicize the names of people who have taken such an act, I don't think this abridges their freedom of speech even if the revelation might indeed have a deterrent effect on some people. Not all government action that deters people's exercise of their free speech rights is unconstitutional, and in particular government speech revealing signers' identities is not, I think, unconstitutional.

Even overt government condemnation of certain speakers is not a First Amendment violation, though such condemnation might deter speakers. The same is even more true, I think, of a simple release of over 100,000 names, though again I can't deny that there would be a deterrent effect. The judgment about how secret signatures or even ballots should be is a judgment that should be made legislatively (or by voter initiative). The First Amendment and First Amendment caselaw does not preclude either option.

81 Comments

Federal Judge Temporarily Restrains Release of Names of Anti-Domestic-Partnership Petition Signers in Washington States:

The decision, in Doe v. Reed, was just handed down yesterday, and is based on the signers' First Amendment rights to speak anonymously; the decision basically keeps in place the temporary restraining order handed down July 29, but is accompanied with a detailed opinion containing the court's reasoning.

That reasoning strikes me as unpersuasive, for the same reasons I mentioned in late July; I don't think that secrecy of signatures is constitutionally mandated by the First Amendment, just as I don't think that a secret ballot is constitutionally mandated by the First Amendment. True, the anonymous speech precedents bar the government from requiring that people sign their political statements. But political statements are just speech. Signing an initiative, referendum, or recall petition is a legally operative act — it helps achieve a particular result not just because of its persuasiveness, but because it is given legal effect by the state election law.

The government is surely entitled to require that people who want their signature to have such a legally operative effect must disclose their identities to the government. And I see no reason why the government might not then disclose those identities to the public, who after all are in charge of the government. To do that is to inform the people about who is taking legally operative steps to change the state's laws (or the state's elected representatives, in the case of a recall).

Informing the public about this might well deter such legally operative acts, though of course leaving people free simply to engage in persuasive speech, which can indeed generally be done anonymously rather than in legally significant signing of petitions. But I don't think that deterrence is unconstitutional, especially since the legal significance of the signature is there only because state law creates it. Even overt government condemnation of certain speakers is not a First Amendment violation, though such condemnation might deter speakers. The same is even more true, I think, of a simple release of over 100,000 names, though again I can't deny that there would be a deterrent effect.

I agree that there are plausible plausible arguments that voter signatures shouldn't be publicly released by the government. Just as we have a secret ballot for the ultimate votes, we could have at least a quasi-secret signature system for the signing of referendum, initiative, recall, and candidate nomination petitions. Both an election and a threshold signature requirement to put something on an election are generally aimed at accurately measuring public opinion. Such an accurate measurement is much more likely if the measurement is undistorted by people's fear of being attacked, fired, ostracized, or even annoyed by those who disagree with them.

To be sure, unlike with a secret ballot, a petition signature would not be fully secret -— for instance, the government would know what you signed, though it doesn't know how you voted, and it's possible that the signatures would be briefly visible as other people are signing the petitions (though that could be minimized, for instance if there's just one signature per page, and each page is concealed after it's signed). But there are good reasons why we might choose to make it as close to a secret ballot as possible.

Still, the judgment about how secret signatures or even ballots should be is a judgment that should be made legislatively (or by voter initiative). The First Amendment and First Amendment caselaw does not preclude either option, and the court's opinion here doesn't persuade me to the contrary.

38 Comments

From Not Dispositive To Irrelevant:

Here's a passage from Doe v. Reed, the opinion I criticized below. I don't think the court needed to reach this issue, because I think there's no need for strict scrutiny when state law chooses to disclose the names of people who take legally operative steps such as signing initiative, referendum, or recall petitions. But I want to set that aside here, and focus on the argument the court made -- an argument with a structure that I often hear (especially from law students), and that bears a bit of explicit analysis:

In the alternative, Defendants assert that there exists a second "compelling" interest in favor of disclosure. Defendants argue that the electorate is entitled to know "who is essentially lobbying for their vote, and thus, who likely will benefit from the measure." But this argument is unavailing because neither the Court nor the parties have the ability to identify whether an individual who supports referral of a referendum to the next ensuing general election actually supports the content of the referendum or whether that individual simply agrees that the referendum should be placed before the voting public. In other words, the identity of the person who supports the referral of a referendum is irrelevant to the voter as the voting public must consider the content of the referendum and be entitled to a process by which it can ensure that the petitions are free from fraud.

Note how the court argues here: (1) A person could sign a petition simply because he "agrees that the referendum should be placed before the voting public," and not because he "supports the content of the referendum." (2) "In other words," the identity of the petition signers "is irrelevant" to the voter who seeks to figure out "who is essentially lobbying for" the proposal.

But statement 2 is not at all just "other words" for statement 1. Statement 1 correctly asserts that signing a petition is not dispositive evidence of the signer's views on the merits. Some people do sign petitions because they think the public is entitled to vote on the question, even though they'll vote against the proposal; some people might expect the proposal to lose, and might sign the petition precisely because they want a statewide vote in which the proposal loses; some people might have deeper political reasons for signing, perhaps because they think the proposal's presence on the ballot will bring out voters who will vote the right way on some other measures or in candidate races; some people might just have been buffaloed into signing something; and so on.

But this hardly means that the identity of the signers is irrelevant to determining who is lobbying for the proposal. If, for instance, it turns out that 60% of a petition's signers are registered Democrats and 10% are registered Republicans, in a state that's generally split 50-50, voters can reasonably conclude that the petition is probably a project of Democrats, and would thus be more likely serve the interests of traditionally Democratic interest groups -- relevant information to many voters, especially if there's a dispute on what the law's effects likely will be.

Now if the argument were simply that the connection isn't strong enough to pass muster under strict scrutiny (the test that the court is applying here), that would be plausible. Likewise, if the argument were that the interest in getting such information about the initiative's backers wasn't compelling enough to satisfy strict scrutiny, that would be plausible, too. (My disagreement with the court on the bottom line stems from my view that strict scrutiny shouldn't apply here.) But this leap from (1) the signature being an imperfect proxy for backing the merits of the petition to (2) its being irrelevant to deciding who is backing the merits of the petition is not sound.

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