In an 8-1 (or 7-2 -- will explain) decision of the Supreme Court of the United States today, the Court held that disclosure of signers of political referenda did not generally violate the First Amendment, but that maybe such signers could prove specific harms that would fall upon them such that privacy rights outweighed the public's right to know.
I've been writing about this case since last August, so hopefully you'll recall the facts: signers of an anti-gay referendum in Washington State claimed fear of harassment and want to have their names shielded from public scrutiny, ran to the Courts, where Justice Scalia basically called them babies in oral argument.
The Chief Justice, writing for himself and Justices Kennedy, Ginsburg, Breyer, Alito and Sotomayor, maintained court precedent which held that such compelled political disclosure “requires a ‘substantial relation’ between the disclosure requirement and a ‘sufficiently important’ governmental interest.” Washington offered two justifications here: "(1) preserving the integrity of the electoral process by combating fraud, detecting invalid signatures,and fostering government transparency and accountability; and (2) providing information to the electorate about who supports the petition," and the court found the first compelling enough that it didn't bother looking at the second:
The State’s interest is particularly strong with respect to efforts to root out fraud, which not only may produce fraudulent outcomes, but has a systemic effect as well: It “drives honest citizens out of the democratic process and breeds distrust of our government.”
The threat of fraud in this context is not merely hypothetical; respondents and their amici cite a number of cases of petition-related fraud across the country to support the point... But the State’s interest in preserving electoral integrity is not limited to combating fraud. That interest extends to efforts to ferret out invalid signatures caused not by fraud but by simple mistake, such as duplicate signatures or signatures of individuals who are not registered to vote in the State. That interest also extends more generally to promoting transparency and accountability in the electoral process, which the State argues is “essential to the proper functioning of a democracy.
And because citizens themselves are in the best position to ferret out forgery or "bait and switch" (i.e, you didn't tell me that's what I was signing) 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. Public disclosure also promotes transparency and accountability in the electoral process to an extent other measures cannot. In light of the foregoing, we reject plaintiffs’ argument and conclude that public disclosure of referendum petitions in general is substantially related to the important interest of preserving the integrity of the electoral process
So, what do the signers have to prove? Disclosure would be unconstitutional, the Court holds, "if there were a reasonable probability that the group’s members would face threats, harassment, or reprisals if their names were disclosed."
[The case produced seven opinions today (though there's a clear six-justice majority) and I'm only skipping one of them.]
Justices Sotomayor, Stevens and Ginsburg write separately to make the federalist argument:
These mechanisms of direct democracy are not compelled by the Federal Constitution. It is instead up to the people of each State, acting in their sovereign capacity, to decide whether and how to permit legislation by popular action. States enjoy “considerable leeway” to choose the subjects that are eligible for placement on the ballot and to specify the requirements for obtaining ballot access (e.g., the number of signatures required, the time for submission, and the method of verification).
And to weigh in strongly for disclosure:
While campaign-finance disclosure injects the government into what would otherwise have been private political activity, the process of legislating by referendum is inherently public. To qualify a referendum for the ballot, citizens are required to sign a petition and supply identifying information to the State. The act of signing typically occurs in public, and the circulators who collect and submit signatures ordinarily owe signers no guarantee of confidentiality. For persons with the “civic courage” to participate in this process, post, at 10 (opinion of SCALIA, J.), the State’s decision to make accessible what they voluntarily place in the public sphere should not deter them from engaging in the expressive act of petition signing. Disclosure of the identity of petition signers, moreover, in no way directly impairs the ability of anyone to speak and associate for political ends either publicly or privately.
And the trio looks deeply disfavorably upon the as-applied challenge route:
Case-specific relief may be available when a State selectively applies a facially neutral petition disclosure rule in a manner that discriminates based on the content of referenda or the viewpoint of petition signers, or in the rare circumstance in which disclosure poses a reasonable probability of serious and widespread harassment that the State is unwilling or unable to control. Cf. NAACP v. Alabama ex rel. Patterson, 357 U. S. 449 (1958). Allowing case-specific invalidation under a more forgiving standard would unduly diminish the substantial breathing room States are afforded to adopt and implement reasonable, nondiscriminatory measures like the disclosure requirement now at issue. Accordingly, courts presented with an as-applied challenge to a regulation authorizing the disclosure of referendum petitions should be deeply skeptical of any assertion that the Constitution,which embraces political transparency, compels States to conceal the identity of persons who seek to participate in lawmaking through a state-created referendum process.
So do Justices Stevens and Breyer:
In my view, this is unlikely to occur in cases involving the [Public Records Act]. Any burden on speech that petitioners posit is speculative as well as indirect. For an as-applied challenge to a law such as the PRA to succeed, there would have to be a significant threat of harassment directed at those who sign the petition that cannot be mitigated bylaw enforcement measures. Moreover, the character of the law challenged in a referendum does not, in itself, affect the analysis. Debates about tax policy and regulation of private property can become just as heated as debates about domestic partnerships. And as a general matter, it is very difficult to show that by later disclosing the names of petition signatories, individuals will be less willing to sign petitions. Just as we have in the past, I would demand strong evidence before concluding that an indirect and speculative chain of events imposes a substantial burden on speech. A statute “is not to be upset upon hypothetical and unreal possibilities, if it would be good upon the facts as they are.”
Justice Scalia concurs separately to disparage the notion that the anti-gay petition signers had any right to anonymity at all:
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 performance of an act with governmental effect. “A governmental practice that has become general throughout the United States, and particularly one that has the validation of long, accepted usage, bears a strong presumption of constitutionality.”
Justice Scalia reviews a great deal of history regarding town meetings, public voting and other public aspects of our democracy over time, before the voluntary decision to adopt the Australian (secret) ballot (to Scalia, there's not a "right" to a secret ballot), and concludes:
Plaintiffs raise concerns that the disclosure of petition signatures may lead to threats and intimidation. Of course nothing prevents the people of Washington from keeping petition signatures secret to avoid that—just as nothing prevented the States from moving to the secret ballot. But there is no constitutional basis for this Court to impose that course upon the States—or to insist (as today’s opinion does) that it can only be avoided by the demonstration of a “sufficiently important governmental interest." And it may even be a bad idea to keep petition signatures secret. 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 (McIntyre) 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.
Justice Alito concurs separately in something that reads more like a dissent -- because he wishes to seek protection-in-advance for signers of controversial petitions, and believes that the signers should win their as-applied challenge -- arguing that political behavior will be chilled if folks have to wait until after a petition is signed to find out if their signing will remain private:
To avoid the possibility that a disclosure requirement might chill the willingness of voters to sign a referendum petition (and thus burden a circulator’s ability to collect the necessary number of signatures, voters must have some assurance at the time when they are presented with the petition that their names and identifying information will not be released to the public. The only way a circulator can provide such assurance, however, is if the circulator has sought and obtained an as-applied exemption from the disclosure requirement well before circulating the petition. Otherwise, the best the circulator could do would be to tell voters that an exemption might be obtained at some point in the future. Such speculation would often be insufficient to alleviate voters’ concerns about the possibility of being subjected to threats, harassment, or reprisals.
And he doesn't buy the state's "informational interest":
The implications of accepting such an argument are breathtaking. Were we to accept respondents’ asserted informational interest, the State would be free to require petition signers to disclose all kinds of demographic information, including the signer’s race, religion, political affiliation, sexual orientation, ethnic background, and interest-group memberships. Requiring such disclosures, however, runs headfirst into a half century of our caselaw, which firmly establishes that individuals have a right to privacy of belief and association....
If this information is posted on the Internet, then anyone with access to a computer could compile a wealth of information about all of those persons, including in many cases all of the following: the names of their spouses and neighbors, their telephone numbers, directions to their homes, pictures of their homes, information about their homes (such as size, type of construction, purchase price, and mortgage amount), information about any motor vehicles that they own, any court case in which they were parties, any information posted on a social networking site, and newspaper articles in which their names appeared (including such things as wedding announcements, obituaries, and articles in local papers about their children’s school and athletic activities). The potential that such information could be used for harassment is vast.
Which leaves us with our lone dissenter, Justice Thomas, who holds that public disclosure of petition signers as a general rule severely burdens political rights and chills citizen participation in the referendum process, and that there's always a less intrusive alternative. He basically argues that the state can verify petition signatures itself, and that the public's right to know was minor:
People are intelligent enough to evaluate the merits of a referendum without knowing who supported it.
To be sure, a referendum signer may be more willing to disclose to the general public his political association with persons signing certain referendum measures than his association with others. But that choice belongs to the voter; the State may not make it for him by ascribing a lower level of First Amendment protection to an associational interest that some think a voter may be (or should be) more willing to disclose.
So, in summary: signatures are presumptively public, but signers can try to prove that as applied to them public disclosure requirements are more likely to yield harassment than necessary information. And Justices Scalia and Thomas are decidedly not the same person.