On April 28, 2010, the U.S. Supreme Court heard arguments in the case of Doe v. Reed. Friends of the court on one side included the Cato Institute, the Institute for Justice, the Justice and Freedom Fund, Liberty Counsel, and a Washington state group called Voters Want More Choices. These were conservative or libertarian groups. On the other side were a gay-rights organization, some professors of political science, the newspaper industry, several state governments, and the left-leaning City of Seattle.
At issue was whether a state can name the names and addresses of all signers of an official petition, or whether the First Amendment to the Constitution gives signers a privacy right.
I use the term “naming names” because it recalls the late 1940s and early 1950s, when American liberals fervently objected to leftists being put under oath and asked to “name names” of members of the Communist Party. The parallel with petition signers is not exact, but there is a flavor of it in the story behind Doe v. Reed. This is a case about the government, political opponents, and a hostile media taking an interest in the political activity of citizens with unpopular views.
Sixty years ago, American liberals defended privacy. Now, in this area, they don’t. Perhaps that is because it is not their ox being gored. Perhaps it is because they have learned to love government, particularly when their people are running it.
Perhaps it is both. To the case. The “Reed” in Doe v. Reed is the chief elections official of Washington state, Sam Reed, a moderate Republican. He is a champion of public disclosure and wants the names disclosed. “Doe” is the stand-in name for two opponents of same-sex marriage who signed a petition to put Washington’s new same-sex unions law on the 2009 ballot. The two Does want to win a constitutional right to stay anonymous.
Referendum 71 did make the ballot. To the disappointment of the people who put it there, Washington voters approved same-sex unions, making the Evergreen State the first to do so by public vote. (See “Man and Groom,” Liberty, January– February 2010.) Doe v. Reed is not an attempt to roll back gay unions in Washington, though it was brought by the people who would like to block gay unions in other states. Doe v. Reed is about signatures on any petition to put a thing on a ballot.
In some states, such as California, these signatures are not disclosed. If the plaintiffs win, California’s rule will apply to all 27 states with citizen-sponsored ballot measures.
Here is how this case came about. On May 18, 2009, Gov. Christine Gregoire, Democrat, signed a bill granting same-sex couples all the rights and privileges of marriage in Washington. The new law was to go into effect July 26. But a conservative group called Protect Marriage Washington began circulating a petition of referendum, which would refer the law to the people. To do this, they needed 120,577 signatures — 4% of the votes in the most recent election for governor.
Gay activists were furious. After years of their effort for equality, the state had recognized their rights. Except for the name, “marriage,” their fight was over. They had won. Then suddenly they had not won. Their opponents, whom they had beaten in the legislature, popped up with a drive to put the issue to a public vote, a vote of the kind that gays had been losing all over America. Gays started a don’t-sign campaign, portraying the signing of Referendum 71 petitions as an act of hate.
One such activist, Brian Murphy, publicly threatened to “out” everyone who signed. He requested a CD of all the signers’ names and home addresses from Secretary Reed and said he would post them as a searchable database at his web page, WhoSigned.org. Another web page, Knowthyneighbor.org, had done this in Arkansas, Florida, Massachusetts, and Oregon. Murphy would do it in Washington and encourage his supporters to have “personal” and “uncomfortable” conversations with people they knew. Several others requested that CD, including the director of the gay-unions campaign, a self-employed political consultant and a former Republican legislator.
Protect Marriage Washington sued, beginning the case that has reached the Supreme Court.
Few defended Murphy’s tactic as decent or acceptable. George Will denounced him as an agent of “thuggish liberalism.” But the media and political establishment of Washington — a “blue” state — defended the decision of Secretary Reed to release the signers’ names and addresses. And they did have an argument. Public disclosure laws are crucial for citizens to keep tabs on their government. And it is hard to maintain that individuals have a constitutional right to be protected from “personal” and “uncomfortable” conversations. In oral arguments, Justice Antonin Scalia asked sarcastically whether Americans were “oh, so sensitive” and “touchy-feely” that disclosure of their names was “too much of an imposition upon people’s courage.” And he said, “You can’t run a democracy this way, with everybody afraid of having his political positions known.”
Well, yes. If there is going to be democratic voting, some people have to make their views known. But did all 138,500 signers have to be “outed”? By naming names, would the state be taking away their First Amendment rights?
The argument on the “yes” side begins by comparing the signing of a petition to voting. When you vote, your ballot is secret. One of the principal reasons for secrecy is to free you from intimidation, so that you will vote the way you want. This is the argument cited by earlier Washington secretaries of state for not releasing signatures, which was the Evergreen State’s policy for 80 years. But the comparison to voting is not a constitutional argument. The secret ballot is nowhere in the Constitution. It came from Australia and was not used in all U.S. states until the election of 1892.
During oral arguments, Chief Justice John Roberts asked Washington’s attorney general, Rob McKenna, whether there were any First Amendment “interests” in the secret ballot.
“Yes,” McKenna said. There might be “a potential chill from voting,” he said, “if you know your vote is going to be revealed.”
The chief justice followed with the obvious question: might there be also a potential chill from signing a petition if you know your signature is going to be revealed?
“Some chill may result, just as some chill may result from having your campaign contributions disclosed,” the Washington attorney general said, “but we do not think that it is significant enough.”
What would be significant enough? Evidence of intimidation? There was evidence from California’s fight over a same-sex marriage law there. ProtectMarriage.com, a conservative group, said in its friend-of-the-court brief that “supporters of Proposition 8 were subjected to economic reprisal, loss of employment, blacklisting, verbal abuse, racial and religious scapegoating, vandalism, threats of physical violence, actual physical violence, death threats, and other manifestations of public and private hostility.” The California victims, however, were donors and sponsors, not mere petition signers. California doesn’t name signers. Washington does, though for Referendum 71 it didn’t because of the lawsuit. That meant the chilling effect of naming signers had to be imagined. One side wanted to imagine it and the other didn’t.
On the other side, the Lambda Legal Defense and Education Fund, which defends same-sex marriage, called the California experience “a handful of incidents” that did not amount to a “systematic victimization crusade.” The privacy side was try- ing to puff up its “mere discomfort at the zealous but constitutionally protected speech” of gay activists.
The WhoSigned.org threat did seem to come down to “discomfort” at “zealous speech” — and probably more at the thought of it than at the reality. But did that make it insignificant?
The answer might depend on the importance of the thing affected. If signing a petition were like voting, then a small effect was significant because voting is “core political speech.” It is subject to the “strict scrutiny” of the Court, which intends to allow very little of it. Circulating a petition has also been declared — in Meyer v. Grant (1988) — to be core political speech. But signing a petition has not been declared that — at least, not yet.
In Doe v. Reed, the State of Washington argued that signing a petition is “without significant expressive content” because the signer puts his name on other people’s words. But what about the signature gatherer? The petition isn’t in his words, either. He’s just a worker, typically paid a dollar or two a signature. The state argued gamely that gathering signatures “is core political speech because it involves interactive communication between the signature gatherer and the voter.” It implied, without saying, that signing petitions does not involve this.
If signing a petition to change the law is not political speech, what is it? It is legislating, the state said. Petition signers were acting as legislators — all 138,500 of them. And legislators’ votes are public. As Lambda Legal said, citizens have a right to “to lobby, through personal advocacy, the people who legislate.”
The comparison of petition signers to legislators falls over if you push on it. Legislators are government employees. They are public figures. They crave publicity. They are popularly elected. They represent citizens, and citizens need to know how they vote because citizens can vote for or against them. Petition signers are voters. Private citizens. They represent only themselves. “Disclosures about private speakers do not promote government transparency,” said the brief from the Justice and Freedom Fund.
Supporters of disclosure argued that voters have a right to know who is proposing to change the law by putting a measure on the ballot. I agree. But the people proposing to change the law are the sponsors. For Referendum 71 that would be the officers of Protect Marriage Washington, who filed the petition for referendum. Their names are on TV and in the newspapers. People know their names. What was the people’s need to know the names of the 138,500 signers of Referendum 71?
The strongest reason the state gave, and it was none too sturdy, was the prevention of fraud. In Washington, matching signatures on petitions to signatures of registered voters on file is the province of the secretary of state. That’s Sam Reed. Usually his staff checks only a sample of signatures, and projects whether there are enough. In close cases, the staff checks them all — and Referendum 71 was a close case. The law allows the pro and anti sides to post two observers each to watch the checking and file objections. There were some objections — is “D.J. Smith” an acceptable signature for Daniel Jerome Smith? But there was not a case for fraud.
The state also had an in-for-an-inch, in-for-a-mile argument: you sign a petition in public. In Washington, the petition sheet has space for 20 names and addresses, so maybe 19 signers see yours, plus some people who look at the petition and don’t sign. By giving your name and address away in public, the state argued, you gave up your claim to privacy.
But there are thousands of petition sheets; in a drive for 138,500 signatures, there would be at least 6,925 of them. Imagine your name and address on one. Maybe 25 people see it; and if they are fellow signers, they agree with you. “It is opponents that constitute the concern,” says the brief filed by Voters Want More Choices. Remember that Doe v. Reed began with a threat to allow anyone who opposed your signature to make an instant computer search for your name and address.
Of course the ballot measure’s private sponsor has that information already. You gave it to him. In some states, he cannot use his list of names and addresses for any private purpose, but in Washington he can. Still, that need not mean that the state can. The state is bound by the First Amendment. Private citizens are not.
The import of all these arguments is not in their relation to Referendum 71, but in where they go beyond that. Here the state was asking for names and home addresses. But what if it asked for more? Justice Samuel Alito asked Washington Attorney General McKenna: how about telephone numbers? Washington doesn’t ask for telephone numbers, but suppose it did. It might want to do that, Alito said, so that petition signers “could be engaged in a conversation about what they had done.”
There follows in the Supreme Court transcript:
A.G. McKenna: It would depend on the strength of the state interest in having the telephone number. The state does not have an interest in the telephone number on the petition form, because the state only needs to know from the petition form the name and the address in order to verify [the signature].
Justice Alito: I thought you were saying that one of the interests that’s served by this is to allow Washington citizens to discuss this matter with those who signed the petition. So putting down the telephone number would assist them in doing that.
A.G. McKenna: Yes, it probably would make it easier for people to contact.
Justice Alito: So you would endorse that?
A.G. McKenna: That would be a policy determination for the legislature to make.
Justice Alito: No, I’m not asking the policy question. I’m asking whether the First Amendment would permit that. A.G. McKenna: I believe it could . . .
Here McKenna is trying to wiggle away and Alito is try- ing to pin him down. McKenna is not asking that the state collect and disclose phone numbers. He doesn’t want anything to do with the idea. His job is to win a case for his employer, the State of Washington, and his colleague, Secretary Reed. Also, McKenna is the state’s highest elected Republican, and he is positioning himself to run for governor in 2012, which would make him the first Republican governor elected in 32 years. By championing open government, he reinforces his standing as a champion of clean government and a friend of the press. Justice Alito has different concerns. He is trying to knock down an argument by showing where some other people might take it.
The arguments in Doe v. Reed may be applied to other things, most obviously to political contributions. In the same month as the oral arguments, the Institute for Justice filed a new lawsuit in Washington state. It is challenging another part of the state’s public-disclosure law. That part requires any group spending $500 in any month to influence legislation to file reports with the state, including publicly disclosable information on each donor of $25 or more.
The Institute for Justice argues that such low ceilings chill grass-roots activism. One of the groups in its case is in a heavily minority area of Seattle where owners have been organizing to protect their property rights. Many are immigrants from communist countries, where they learned from experience not to lend their names and addresses to any group opposing the government.
In America they face a different variety of government, to be sure. But it is still a government. It is still jealous of its powers, and it still tends to put its own interests ahead of private citizens’. Look at it in that way, and you arrive at the position of Brad Smith, former chairman of the Federal Election Commission and current chairman of the Center for Competitive Politics. The Institute for Justice quotes Smith in its brief for Doe v. Reed: “What is forced disclosure but a state-maintained database on citizen political activity?”
And that is why libertarians should care about Doe v. Reed.