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.