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June 24, 2010

Supreme Court: Disclosure of Referendum Petitions Does Not Violate First Amendment

The Supreme Court issued seven decisions this morning. Unfortunately, none of them are the Second Amendment incorporation case we've all been waiting for, McDonald v. City of Chicago or the First Amendment religion and schools case Christian Legal Society v. Martinez (Hastings) Those will be issued Monday at 10AM Eastern, and all signs point to Alito writing McDonald so warm up the skull.

The Court did get around to the Washington referendum case. This is the one where the petitioning groups sued to prevent Washington from disclosing their names under the state's Public Records Act, claiming that forced disclosure would burden their First Amendment speech rights. For background, see this post and poll from last fall.

Today the Court holds 8-1 that, generally, disclosure of the names of petition signers does not impermissibly burden rights protected by the First Amendment. The State's interest in preserving integrity of the petition process, preventing fraud, promoting transparency, a providing accountability outweigh the "modest burdens" of having one's name known for signing a referendum petition.

However, the Court notes that the only issue properly raised in the case so far is the facial First Amendment challenge to public disclosure of referendum petitions. The petitioners in this case also claimed that Washington cannot disclose their petitions because signers would be subjected to threats, harassment, and reprisals for signing. That claim was never decided by the district court originally and, therefore, not decided on appeal. The case now goes back on that issue.

The Chief Justice wrote the majority opinion (PDF). There are several concurring opinions, which I haven't had a chance to comb through yet. Justice Thomas dissented, stating that public disclosure of petitions would chill citizen participation in the referendum process.

Later: I just want to point out how radical Justice Thomas' solution here is. As we discussed last fall (top link, above), I think the states -- and their citizens -- should be able to decide how much or how little disclosure is appropriate. Some states presently do not allow disclosure of petitions. Some, like Washington, do. In fact, Washington's disclosure law was itself created by voter initiative, rather than the state legislature. Justice Thomas would disallow that and prevent all states from adopting disclosure laws.

Update: My own views most closely track with Justice Scalia:

In my view this is not a matter for judicial interest-balancing. Our Nation’s longstanding traditions of legislating and voting in public refute the claim that the First Amendment accords a right to anonymity in the perform-ance of an act with governmental effect...

When a Washington voter signs a referendum petition subject to the PRA, he is acting as a legislator. The Washington Constitution vests “[t]he legislative authority” of the State in the legislature, but “the people reserve to themselves the power . . . to approve or reject at the polls any act, item, section, or part of any bill, act, or law passed by the legislature.”...

Plaintiffs point to no precedent from this Court holding that legislating is protected by the First Amendment.3 Nor do they identify historical evidence demonstrating that “the freedom of speech” the First Amendment codified encompassed a right to legislate without public disclosure.This should come as no surprise; the exercise of lawmaking power in the United States has traditionally been public....

Legislating was not the only governmental act that waspublic in America. Voting was public until 1888 when theStates began to adopt the Australian secret ballot. See Burson v. Freeman, 504 U. S. 191, 203 (1992) (plurality opinion). We have acknowledged the existence of a First Amendment interest in voting, see, e.g., Burdick v. Taku-shi, 504 U. S. 428 (1992), but we have never said that it includes the right to vote anonymously. The history ofvoting in the United States completely undermines that claim.

The long history of public legislating and voting contradicts plaintiffs’ claim that disclosure of petition signatures having legislative effect violates the First Amendment. As I said in McIntyre, “[w]here the meaning of a constitutional text (such as ‘the freedom of speech’) is unclear, the widespread and long-accepted practices of the American people are the best indication of what fundamental beliefs it was intended to enshrine.” 514 U. S., at 378 (dissenting opinion). Just as the century-old practice of States’ prohibiting anonymous electioneering was sufficient for me to reject the First Amendment claim to anonymity in McIntyre, the many-centuries-old practices of public legislating and voting are sufficient for me to reject plaintiffs’ claim.

Between Thomas and Scalia, I know which way I'd go. I strongly recommend Scalia's concurring opinion. He wouldn't even allow the harassment claim to go back to the district court.

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posted by Gabriel Malor at 11:10 AM

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