The Ninth Circuit order states that “An opinion setting forth the reasons for the court’s reversal of the Preliminary Injunction Order shall be issued expeditiously and in due course,” so I can’t speak directly to the Ninth Circuit’s reasoning. But for reasons I mentioned when the release of the signers’ names was first enjoined, I think the injunction was mistaken: There is no First Amendment right to block the state from releasing the names:
I don’t think that secrecy of signatures is constitutionally mandated by the First Amendment, just as I don’t think that a secret ballot is constitutionally mandated by the First Amendment. True, the anonymous speech precedents bar the government from requiring that people sign their political statements. But political statements are just speech. Signing an initiative, referendum, or recall petition is a legally operative act — it helps achieve a particular result not just because of its persuasiveness, but because it is given legal effect by the state election law.The government is surely entitled to require that people who want their signature to have such a legally operative effect must disclose their identities to the government. And I see no reason why the government might not then disclose those identities to the public, who after all are in charge of the government. To do that is to inform the people about who is taking legally operative steps to change the state’s laws (or the state’s elected representatives, in the case of a recall).
Informing the public about this might well deter such legally operative acts, though of course leaving people free simply to engage in persuasive speech, which can indeed generally be done anonymously rather than in legally significant signing of petitions. But I don’t think that deterrence is unconstitutional, especially since the legal significance of the signature is there only because state law creates it. 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.
I agree that there are plausible 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. Both an election and a threshold signature requirement to put something on an election are generally aimed at accurately measuring public opinion. Such an accurate measurement is much more likely if the measurement is undistorted by people’s fear of being attacked, fired, ostracized, or even annoyed by those who disagree with them.
To be sure, unlike with a secret ballot, a petition signature would 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.
Still, 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, and the court’s opinion here doesn’t persuade me to the contrary.
Thanks to Religion Clause for the pointer.
SgtDad says:
This doesn’t mean the names will go out. The same issue is before Judge Hicks in Thurston County (Olympia — State Capitol) Superior Court. He has deferred ruling until he sees what the 9th Circuit says. Hicks is pretty deferential to the gov’t, but he is also thoughtful, reads everything, and pretty insightful.
The undercurrent here is the intent of certain groups to “out” the signers and seek to subject them to harassment. If that happens, I can see an Initiative to amend the WA Public Disclosure Act getting real traction.
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October 19, 2009, 12:49 amRandy says:
I’ve signed lots of petitions, but I’ve never once believed that my signature is somehow secret. In fact, I assume that it’s all public knowledge, since it has to be verified by a person. That’s why I always try to print my name and address legibly, in the hopes that it will be verified.
I once signed a petition to allow gambling in DC, even though I am against gambling. I don’t really know why I did it, but I figured that if it gets to a ballot, I can vote against it. (It never did). If someone wants to bombard me with letters and postcards telling me I’m wrong about that, I can ignore it like I do all the other junk mail. If they want to harass me, there are laws against that.
In other words, it’s not a big deal, one way or another. But I think the ruling is correct — there is nothing to prevent their release.
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October 19, 2009, 1:03 amJoe says:
I have been presented with a few referendum petitions, but recall signing only one. I did so under the belief that my name might be made public.
(I’m against the referendum process so don’t usually sign them. I can’t even remember the one I signed, but probably did so simply to make a statement to the politicians.)
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October 19, 2009, 2:00 amgeokstr says:
Randy, are there laws against picketing your workplace or otherwise harassing your employer to have you fired, as happened in CA to some prop 8 supporters? If not, should there be?
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October 19, 2009, 8:28 amfirst history says:
I agree that petition signers, like campaign contributors, should be disclosed to the public. Groups that propose referenda and initiatives are using a publically financed process (an election) to further their policy objectives, and therefore should be subject to disclosure.
Gven the abuse of the initiative process in California, for example, it is vital that the public be aware of who is supporting such proposals, which can result in billions of tax dollars subsidizing corporations.
Individuals or groups who use the petitions (or contribution reports) to harass their opponents should be prosecuted to the fullest extent of the law.
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October 19, 2009, 8:38 amwm13 says:
As I recall, the Connecticut Supreme Court held that the First Amendment bars access fees to the Greenwich town beaches. (Someone might want to go the beach and speak, you see.) So I am simply unable to see the First Amendment as meaning anything more than whatever judges think is desirable minute to minute.
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October 19, 2009, 8:40 amegd says:
There should be a line between petition signers and petition proposers. The former should not be publicly disclosed while the latter should be.
If the Prop. 8 situation has taught us anything it is that people can use this personal information to harass and attack others. Ever since the Prop. 8 stuff, I have always asked whether the information on a petition will be made public. There are very few petitions I will not sign if it’s private, because I think voters should have the right to decide policy issues. And if enough people care about it enough to put it on a ballot, I’ll support that.
That doesn’t mean I think there’s a 1st amendment right to privacy here, just that the state’s law should be changed.
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October 19, 2009, 8:59 amSteve says:
I definitely think there should be a law prohibiting harassment of petition signers, just as there should be a law prohibiting efforts to deprive gay people of their civil rights. Can’t really say which one ought to be the higher priority.
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October 19, 2009, 10:30 amBen says:
I think a law prohibiting the harassment of petition signers is probably unworkable at best.
In my opinion, a petition is merely a “vote” to have a referendum on the ballot in this case. Not all petitions are like that, but when a law requires signatures to be on a ballot, or a candidate needs signatures to be on the ballot, those are very much akin to “votes.” In that case, it makes sense to keep them secret.
It is also quite obvious what the motives are of those wanting their release. The Anti-Proposition 8 individuals who harassed and have character-attacked those that disagree with them show that such transparency is sadly being used wrongly.
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October 19, 2009, 10:45 amJohn says:
The secret ballot is important to how our election processes function, as it is an important requirement that direct threats and pressure not be used in our elections. As such, signing a petition is also part of the ballot process and should be extension recieve protection from discloser as well. Such a signature is a vote and revealing it does reveal how that person voted on whether the measure in question so continue in the approval process.
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October 19, 2009, 11:09 amArthurKirkland says:
Some of the arguments advanced here could also be used to shield voter registration information, voting histories, and similar information from public view.
Were that to occur, the appointed manager of the Division of Elections could become the most powerful person in town (and, from a practical perspective, that power would be difficult to monitor).
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October 19, 2009, 11:26 amMark Field says:
I’m not Randy, but I’ll say that there shouldn’t be any such laws infringing on 1A rights. There should be (and are, in CA at least) laws prohibiting employers from firing someone in violation of public policy. That would include the exercise of voting rights and should include signing petitions (the latter may be the case; I don’t know).
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October 19, 2009, 12:01 pmegd says:
I’m not aware of any gay-specific civil rights that are not protected by existing legislation that covers everyone.
Could you please be more specific? Does 42 USC 1983 only apply to straights? Is there a preface to the Declaration of Independence that reads: “Except for those darn gays, Congress shall make no law...”?
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October 19, 2009, 12:13 pmSteve says:
I’m not sure if egd is saying that marriage isn’t a civil right, or that gay people are perfectly free to get married as long as it’s to someone of the opposite sex, or whatever else his point might be, but I guess that’s the object of making such an obtuse post.
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October 19, 2009, 12:25 pmfirst history says:
FWIW, Protect Marriage Washington has requested a stay from Justice Kennedy, and the Justice has asked the state to respond by this afternoon.
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October 19, 2009, 12:32 pmSandy MacHoots says:
I think that we ought to release their names, addresses, telephone numbers, employer, employer address, names and ages of their children, and where the kids go to school.
A few anonymous threats to the kids will keep these damned citizens from getting involved in issues that they should leave to government officials to decide.
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October 19, 2009, 12:55 pmSeaDrive says:
See Leydon v. Greenwich However, I don’t think the names of out-of-town visitors are made public.
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October 19, 2009, 1:08 pmDan Hamilton says:
Typo — citizens is wrong, should be subjects.
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October 19, 2009, 1:14 pmDennis N says:
I’m reminded of a couple of lines from Evita. The Colonels are singing:
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October 19, 2009, 1:42 pmMartinned says:
This part I like. Not everything should be sorted out in court.
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October 19, 2009, 1:44 pmOld Smokin' Egg says:
Public release of the names might tend to reduce the incidence of forgery. If I learn that the circulators of a petition to which I’m opposed have been suspected of manufacturing signatures, I’d like to be able to go to the County Clerk’s website and see if my name is listed among the signers.
I could also imagine a situation where the opponents of a petition might try to make legitimate signatures disappear– say, by offering paid circulators of the petition more than the going per-signature rate to misplace signed petitions. In such a case, I’d like to make sure that the petition that I signed was turned in.
Finally, if there are several dozen different petitions circulating, many treating of the same issue, I might not know whether I’ve signed a particular petition or not. I might want to sign a certain petition, but not to sign it twice. Again, it’d be nice if I could check the County Clerk’s website to see if I’m listed as a signer.
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October 19, 2009, 1:50 pmRandy says:
Mark: “I’m not Randy, but I’ll say that there shouldn’t be any such laws infringing on 1A rights. There should be (and are, in CA at least) laws prohibiting employers from firing someone in violation of public policy. That would include the exercise of voting rights and should include signing petitions (the latter may be the case; I don’t know).:
Well, I am Randy, and agree with these sentiments. People are free to picket whatever businesses they like.
As for Prop 8, the amount of actual harassment towards supporters of that prop was not nearly as much as people like to make out. Certainly less than what gay businesses have suffered in the past. Yet somehow, we survived, as did the republic.
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October 19, 2009, 1:51 pmNowMDJD says:
To the extent that we want to foster democracy and participation in the politifal process, petition signatures should be confidential. This is best done legislatively, but I would not mind if courts found petition signatures to be comparable to votes in an election from the standpoint of privacy or confidentiality.
However, to the extent that petition signatures are *not* private, it would seem to be a violation of the speech and association rights of others to preclude them from demonstrting against petition signers, firing them, or taking other sanctions against those who sign petitions with which they disagree.
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October 19, 2009, 2:01 pmlosantiville says:
No problem. Washington state has strong protection of the 2nd Amendment. Lefties are cowards (in America). 75% of homosexuals are lefties. Shotgun w/00 Buck. No more harassment.
Handy for animals and animal rights activists as well.
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October 19, 2009, 2:53 pmfirst history says:
Again, FWIW:
Justice Anthony M. Kennedy on Monday afternoon put back into effect, temporarily, a federal judge’s order that protects the privacy of signers of a petition seeking a voter referendum on a gay rights law in Washington State. He did so, however, only until a further order is issued by himself or by the Court. Kennedy acted on the basis of the application, before getting a response, due this afternoon, from state officials.
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October 19, 2009, 3:16 pmegd says:
I’m not sure exactly what point you’re making. Either:
1) The people should not be allowed to amend their Constitution and be governed the way they desire.
or
2) There’s a federal right to gay marriage that I’m not aware of.
If it’s the first, then you’re the typical left-wing fascist that hates democracy and democratically formed governments.
If it’s the second, then please point out where this right is codified in the Constitution, statute, or federal case law.
I’ll skip the Shawshank Redemption quotes because they’re mildly offensive, given the context. Scorekeepers take note that the reference was not missed.
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October 19, 2009, 3:56 pmRandy says:
There isn’t a right to heterosexual marriage in the Constitution either. And there is no right to interracial marriage either. At least, I’m not aware of it. Care to show us where it might be codified in federal law?
But there is a phrase called “equal protection” under the law. Which means that if you get a right, everyone else does too.
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October 19, 2009, 4:08 pmRandy says:
“1) The people should not be allowed to amend their Constitution and be governed the way they desire.”
Unless, of course, it conflicts with the US Constitution. Or are you saying that the people should be able to have a state amendment to their constitution that bypasses rights enumerated in the federal one?
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October 19, 2009, 4:10 pmbadlaw says:
Considering if the issue were actual civil rights and not, say, issues of public policy pertaining to gay people that its supporters have decided to call a “civil right” because it sounds better politically, probably wouldn’t go on the ballot in the first place, I’m not sure how your statement pertains.
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October 19, 2009, 4:46 pmmariner says:
That’s such a naive, simplistic view.
Nuanced, sophisticated, tolerant people understand that it can’t really work that way. ;)
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October 19, 2009, 4:57 pmThe Volokh Conspiracy » Blog Archive » Justice Kennedy Temporarily Stays Release of Names of People Who Signed the Washington Anti-Same-Sex Marriage Initiative says:
[...] I mentioned early this morning, I think that the Ninth Circuit’s decision overturning the district court’s preliminary [...]
EvilDave says:
I think each judicial opinion should include the judges’ personal home address, phone number and email.
If the public has a right to know all about these petition signers, don’t they have a right to know all about their judges? The judges affect more people that the individual petition signers do.
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October 19, 2009, 5:16 pmSaysYou says:
There is no “civil right” to change the definition of marriage.
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October 19, 2009, 6:08 pmDennis N says:
EvilDave says:
Don’t forget cops.
SaysYou says:
That sentence makes no sense. Marriage is only defined by common law. There are plenty of common law traditions that have been overruled by statute law.
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October 19, 2009, 6:17 pmShelbyC says:
Surely you don’t mean efforts to deprive gay people of their civil rights?
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October 19, 2009, 6:26 pmRandy says:
badlaw: “Considering if the issue were actual civil rights and not, say, issues of public policy pertaining to gay people.”
Yes. Just what ARE we to do with these gay people? Perhaps we can just relocate them to the gay ghettos of our cities so that they renovate the old houses there, and we won’t have to deal with them and their incessant demands for equality. It’s just like that song, how do you solve problem like Maria?
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October 19, 2009, 6:39 pmSaysYou says:
That’s a non sequiter. The fact that a definition can be changed by statute in no way implies a “civil right” to change the definition.
Yes of course, there exist only two possibilities — redefinition of marriage or forced relocation — there are no other alternatives.
Get a grip.
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October 19, 2009, 7:43 pmarbitraryaardvark says:
The district court opinion was a muddled mess, but it reaches the right result,and the 9th erred in dissolving the injunction. Is EV arguing to overturn the precedents that allow for exception to disclosure where the threat of harrasment is high? Cases such as NAACP v Alabama, Buckley v Valeo, McConnell v FEC, Socialist Workers 74 Committee v Brown. Roe v Wade is also relevant if not as on point. Or is it just that you don’t think these facts meet the standard?
I don’t agree with the petition and wouldn’t have signed it, but I support the right to privacy that, maybe, protects those who signed it.
I hope, but don’t much expect, that the Court will take the case. It’s got some nice ironies built into it.
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October 19, 2009, 7:50 pmSuperSkeptic says:
I don’t know anything about election law, but I’m obviously a big fan of the right to privacy (I do post under pseudonym after all); however, I was under the impression that even my votes would not necessarily remain private, if say, there had to be a recount or something. Otherwise, how could anything ever be verified for accuracy?
So, do we really want the judges working this one out? .
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October 19, 2009, 8:48 pmSirKev says:
Looking at this issue brings to mind a book I read awhile ago called “The Transparent Society”. The argument was that it was better for all members of society to have complete transparancy rather than privacy laws which attempted to put things “behind walls”. It argued that powerful and illegal interests will always have access to the private information. Whereas if it is open to all, then a kind of societial enforcement would be present. The example was police cameras. If all footage is kept private, then it gives rise to the “Big Brother” mentality. However, if all the cameras were open and available to anyone through a website, then not only can’t the criminals hide, but the police actions would be public as well. This provides a citizen enforcement mechanism as well as peer pressure to deter certain behavior.
That is what I feel needs to happen here. If the signatures are to become public, they must be easily accessible to all. Ideally, there should also be a record of who accesses those records. This would allow those who feel they are being harassed to see who has viewed their signatures. Finally, there needs to be strong punishment and enforcement of harassment laws in order to deter those who wish to harm people for expressing their opinion. Without these safeguards and standards, I feel that this ruling will create a chilling effect on any initiative deemed controversial and I am not sold that any legislative action will stand up to judicial scrutiny. Without adequate protection and enforcement this ruling, while not unconstitutional, will deter some from expressing and supporting their views.
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October 19, 2009, 10:08 pmRandy says:
“Yes of course, there exist only two possibilities – redefinition of marriage or forced relocation – there are no other alternatives.”
Well, when someone else believes that they can decide the freedoms and rights of another group, it really isn’t that far fetched to carry it to the extreme. Afterall, if you believe you have the right to deny marriage benefits to a gay couple that have children, then you obviously don’t care about the rights of the couple or the children.
Why you should decide the ‘public policy’ regarding gays and not gays deciding for themselves, I don’t know. Care to explain how we should best lead our lives? What is the best public policy for a gay couple that has children? And is this policy the best one for you, or for the gay family? And why should it matter what you think if you aren’t gay?
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October 19, 2009, 10:20 pmArrowSmith says:
The harassers wish to stay anonymous.
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October 20, 2009, 2:02 amTuesday round-up | SCOTUSblog says:
[...] stay the release of the names of signatories to Washington’s Referendum 71. Though he earlier outlined that he believes releasing the names is in the best interests of open government and [...]
Randy says:
arrowsmith: “The harassers wish to stay anonymous.”
No, as I read the quote, he or she specifically states that “there should also be a record of who accesses those records.This would allow those who feel they are being harassed to see who has viewed their signatures.”
In other words, anyone who sees the list would themselves be made public. Further, he concludes with a strong statement that harassment should be punished.
Seems like a fair argument to me.
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October 20, 2009, 11:28 amFree Speech Round-Up « says:
[...] some of the pleadings. The same Scotusblog entry also offers a backgrounder on the case. And at Volokh Conspiracy, Eugene Volokh explains why he thinks the Ninth Circuit made the right [...]
SirKev says:
ArrowSmith: They may wish to do so, but to provide them that cover would ineffect chill expression of opinion. To prevent that from occuring and harming our electoral process, mechanisms must be put into place that prevents that from occuring. It would also make policing easier and lead to greater enforcement which would provide an effective deterent to such behavior.
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October 20, 2009, 2:54 pmPubliusFL says:
How so?
I’m not following you. Policing of what? Enforcement of what? What do you mean by “such behavior” — anonymous speech?
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October 20, 2009, 3:14 pmptt says:
I am baffled by this argument. Anonymity in petitioning is a relatively new development, a result of our increased urbanization. For most of our history, signing a petition was a public act, a public declaration.
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October 20, 2009, 3:27 pmSirKev says:
This is refering to a previous post I made on the issue. Policing and enforcement relates to potential harassment and intimidation actions that individuals or groups may conduct on those who signed a petition to put an initiative on a ballot. Rather than try to put the signatures behind a wall the entire process should be open. Not only would people be able to see your signature, but you would be able to view those who looked you up. By providing access to such signatures without adequate safeguards to protect those individuals will make it more difficult to put controversial issues through the initiative process.
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October 20, 2009, 10:39 pmSirKev says:
I think that applies to the petition organizers but not the petition signers in this day and age. A signature on a petition only means that you agree it should be on a ballot. In most, but not all, cases it means that you support it. However, I know several people that would sign every and all petition with the thought that if people care enough to want a proposition, it should be debated and voted on by the people. Under the ruling from the district court they may be less likely to sign such petitions in the future.
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October 20, 2009, 10:44 pmThe Volokh Conspiracy » Blog Archive » Ninth Circuit Opinion in Washington State Referendum Signature Confidentiality Case Arrives: says:
[...] is the opinion the court promised last Thursday. I have to run, but I hope to blog more about this later tonight or tomorrow. Categories: Freedom [...]
The Volokh Conspiracy » Blog Archive » Supreme Court Agrees to Decide Whether First Amendment Bars Government’s Releasing Names of Petition Signers says:
[...] Circuit opinion below (Doe v. Reed). I think the Ninth Circuit’s result is right, though for reasons different from the ones the Circuit gave. If the Court reverses, that would likely set an important precedent on anonymous speech. (If it [...]
david welch says:
its with stark realism that i remind you all; last nov. voters in nyc collected about twice the needed signatures to have a referendum placed on the city wide ballot. only to have the city object all the way to the supreme court of that state where it was ruled that the citizens had no right to investigate that events of the attack against it on sept 11, 2001. its appearent that high treason has taken place and the media is in conspiracy with the traitors in the govt. why are we talking about voting?
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February 8, 2010, 3:55 pm