Wednesday, June 30, 2010

Disclosure and the First Amendment: An Explanation of Doe v. Reed for Lay Readers

The Supreme Court recently decided in Doe v. Reed that the First Amendment does not prevent the State of Washington from publicly disclosing the names and addresses of individuals who signed a referendum petition.  This is one of those rare cases where the issues are intellectually appetizing and the Justices are firing on all cylinders.  There were seven opinions each of them fascinating. The majority opinion was written by Justice Roberts and only Justice Thomas dissented.  Justice Scalia concurred in the judgment only.  Justice Alito wrote a concurrence (that should really be a dissent). Justice Breyer wrote a short concurrence, Justice Stevens wrote a concurrence that was joined by Justice Breyer.  Justice Sotomayor wrote a concurrence that was joined by Justices Stevens and Ginsburg. If you're keeping score at home, only Kennedy and Ginsburg did not write on this one.

The Facts
In the State of Washington if a voter is unhappy with a law passed the legislature, she can challenge the law by referendum.  The voter must circulate a petition and a get a requisite number of fellow citizens (about 4% of the State's voters) to sign the petition to put up the law for a vote.  As required by Washington's election laws, petition signers must include their names and addresses on the petition sheets.  As interpreted by Washington officials, the names and addresses of individuals who sign these petitions are public records under the State's public records statute, which means that they can be made publicly available by the State.  Anyone can find out if you've signed a petition and where you live.

In Doe, some voters were unhappy with a law extending benefits to same-sex couples, so they acquired the relevant number of signatures to put the issue up for a referendum. The petition as R-71.  As it happened, they lost.  But in the meantime those who opposed the petitions sought the names and addresses of the individuals who signed the petition.  The plan was to put the names and addresses on the web in a searchable format.  Some of the individuals who signed the petition sued to prevent Washington from disclosing the names and addresses of the petition signers.

The Majority Opinion
For our purposes, the Complaint alleged two primary challenges.  First, the plaintiffs alleged that the First Amendment does not allow Washington to publicly disclose signatures and addresses of the people who sign referendum petitions.  The Court characterized this claim as a facial challenge, which means that the plaintiffs are saying that the statute, on its face and in all of its applications, is unconstitutional.  Second, the plaintiffs argued that public disclosure of the names and addresses of the individuals who signed R-71 would violate their First Amendment rights. The Court characterized the second challenge as an as-applied challenge, which means that the plaintiffs are saying that the law as applied to them in their particular circumstances is unconstitutional.  The Supreme Court only dealt with the first allegation and sent the case back down for the lower court to address the second allegation.

In the majority opinion, C.J., Roberts concluded that voters do have a First Amendment right, but that right is not violated by public disclosure of the names and addresses of the petition signers.  The Court basically balances the interests of the state (the reasons for promulgating the statute) against the burden on the plaintiffs and concluded that the state interests outweigh the potential burdens. Roberts maintained that an "individual expresses a view on a political matter when he signs a petition" and that political expression is covered under the First Amendment.  Of course, the fact that the individual has a right of expression does not mean that the right is violated when the state discloses her name and address.  Roberts writes that the state must have a good reason (a "sufficiently important governmental interest") and the reason must be substantially related to the disclosure requirement.  In other words, the questions are whether the state has a good enough reason to require disclosure and whether the state's statute is designed to respond to the state's reason for requiring disclosure.

Washington offered two reasons for requiring disclosure: protecting the integrity of the electoral process and providing information to voters.  The Court focused on the first justification and because it concluded that the first justification was adequate to support the disclosure requirement, the Court did not address the second justification.

The Court concluded that Washington's interest in protecting the integrity of the electoral process is "undoubtedly important."  In this case, protecting the integrity of the electoral process means a number of different sub-interests.  It means combating fraud, which means individuals who sign a petition under fictitious names.  Integrity also includes identifying instances where signatures are invalid not because of fraud but because of legitimate mistakes.  Further, integrity "also extends more generally to promoting transparency and accountability in the electoral process."

The Court then concluded that those interests were sufficiently related to the disclosure requirements.  For example, broad disclosure enables an individual whose signature was forged on a petition to discover and rectify that fraud.  "Public disclosure thus helps ensure that the only signatures counted are those that should be, and that the only referenda placed on the ballot are those that garner enough valid signatures."

The Court then addressed the plaintiffs' argument that disclosure subjects the signers of petitions to harassment.  The Court acknowledged that this might happen in particular cases (in which the plaintiffs would be entitled to an as-applied challenge), but concluded that the plaintiffs did not offer evidence to support their contention that harassment.  "Faced with the State's unrebutted arguments that only modest burdens attend the disclosure of a typical petition, we must rejects plaintiffs' broad challenge" to the statute.

The Court did leave the plaintiffs the option of continuing their challenge that the law as applied to them was unconstitutional.

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