This is the opinion the court promised last Thursday. I have to run, but I hope to blog more about this later tonight or tomorrow.
UPDATE: D’oh! Forgot to post the link; just updated the post to include it.
This is the opinion the court promised last Thursday. I have to run, but I hope to blog more about this later tonight or tomorrow.
UPDATE: D’oh! Forgot to post the link; just updated the post to include it.
alkali says:
It appears that the opinion itself may be found here.
October 22, 2009, 6:13 pmSara says:
Looks right. The speech is not anonymous.
October 22, 2009, 6:31 pmSteve says:
The question is whether the State that created the petition process in the first place is compelled by the Constitution to keep the names of signers secret even if it considers them part of a public record. I will be very surprised if this ruling is overturned, Ninth Circuit or no.
October 22, 2009, 6:36 pmruufflesinc says:
Really? So how hard would it have been for the petitioners to circulate a second petition to revise the PRA and keep signatures secret? Couldn’t have cost that much more if they were circulated together, and might have made a stronger legal argument (ie, wait until after the election).
In other words, instead they’re using the courts to enforce a rule they may or may not get passed democratically.
October 22, 2009, 6:50 pmBigBob says:
I think the outcome is right but the reasoning gets confusing when they that signing your name on a piece of paper has speech “elements”. Setting aside the legislative act question, which they do, isn’t writing something on a piece of paper “pure speech” as that has been understood in the case law?
October 22, 2009, 6:55 pmTerrivus says:
I will be very surprised if this ruling is overturned, Ninth Circuit or no.
Any Ninth Circuit panel with Pregerson and Tashima is a possible reversal–or, at least, will get a long, hard look by the Supreme Court.
October 22, 2009, 7:04 pmSara says:
So putting an “x” when you sign a contract or other legal document is “pure” speech?
October 22, 2009, 7:05 pmruufflesinc says:
Obscenity. Not saying this is, just that there’s no “written words=pure speech” doctrine.
October 22, 2009, 7:10 pmSteve says:
Setting aside the legislative act question, which they do, isn’t writing something on a piece of paper “pure speech” as that has been understood in the case law?
It’s speech, but it’s also an act of legal significance. If the state says you’re not allowed to apply for a driver’s license, it’s not a First Amendment violation even though filling out an application is “writing something on a piece of paper.”
October 22, 2009, 7:25 pmBigBob says:
Sara and Steve – Good point, sort of. The court specifically dodged the question of whether this was an “act” — the court said it would assume signing the name was speech (as opposed to a legislative act). But then it changed its mind without explanation and said that writing one’s name just has speech “elements.” (And if speech here was an “act,” and if we’re not going to decide whether it was a legislative act, what kind of act would be be? The court doesn’t say – that’s part of the problem.)
Ruufflesince: You prove my point, sort of. Obscenity is a narrow exception to the rule that speech = speech, and that speech is protected as, well, speech. Other narrow exception would be fighting words. What exception to the general rule would this fall under? I can’t think of any except Sara/Steve’s example and the court’s own example that some speech is really a legal “act” — but the court specifically said that it wasn’t deciding that question.
October 22, 2009, 7:28 pmWASteve says:
Nobody had ever asked for the names of petitioners before.
I can almost guarantee you that there will be such a petition next year, though, especially if the names are released.
Some of the logic the court uses is troubling. We have several petitions each year (there are two on the ballot this year alone, not to mention several that didn’t make it.) I have frequently seen people who are hired to get people to sign a wide variety of petitions. So seeing someone sign a petition in public means little.
Of course, one can also sign a petition effectively in private. It’s easy enough to download a copy of the petition, sign only your name to it, and mail it in to the organizers. If I want to privately sign a petition, I can do so.
Perhaps someone can explain to me why signing a petition is a “direct legislative act”? The only act is getting something on the ballot.
October 22, 2009, 7:46 pmDave N says:
But the third judge on the panel was N. Randy Smith, a conservative Mormon from Idaho — So while he may share sympathies with the John Doe plaintiffs on the political issue, his lack of dissent makes the decision at least appear “mainstream.”
October 22, 2009, 7:51 pmAlex says:
I’m not sure where you got that information, but according to this from the WA Secretary of State, there have been several requests for petition signatures.
October 22, 2009, 8:09 pmfirst history says:
Perhaps someone can explain to me why signing a petition is a “direct legislative act”? The only act is getting something on the ballot.
It’s a direct legislative act because petition signatories are placing proposed legislation before the voters. And it’s important that the voters know who is behind the legislative proposals. We know who sponsors legislation in the legislature; why shouldn’t we know who the sponsors are when the proposal is placed directly to the people?
October 22, 2009, 8:37 pmDave N says:
I am not sure I completely agree with your analysis. Some legislation has a sponsor. Other times legislation is introduced by a committee. And sometimes the most egregious parts of legislation are slipped in as amendments with no fingerprints at all.
October 22, 2009, 8:52 pmLior says:
The confusing part is the First Amendment analysis the court does. They assume a right to sign petitions anonymously, and further suppose that since this has something to do with speech such a right must be protected by the Bill of Rights. Finally, they try to determine whether the PRA overly burdens this right.
Shouldn’t they have instead resolved the core question? I expected the ruling to say “the First Amendment does not protect a right for signing petitions anonymously; whether the petitions are public records subject to the PRA has been determined by the State Courts”.
October 22, 2009, 8:58 pmfirst history says:
Dave N said:
first history: Perhaps someone can explain to me why signing a petition is a “direct legislative act”? The only act is getting something on the ballot.
It’s a direct legislative act because petition signatories are placing proposed legislation before the voters. And it’s important that the voters know who is behind the legislative proposals. We know who sponsors legislation in the legislature; why shouldn’t we know who the sponsors are when the proposal is placed directly to the people?
I am not sure I completely agree with your analysis. Some legislation has a sponsor. Other times legislation is introduced by a committee. And sometimes the most egregious parts of legislation are slipped in as amendments with no fingerprints at all.
True, but when an initiative or referendum is sponsored by an anonymous campaign committee named “Citizens for the Betterment of Everything” it begs the question about the motives of proposed legislation. Sunshine is the best disenfectant.
October 22, 2009, 9:31 pmGabriel Malor says:
That is incorrect. Each year there are requests for petition signatures. Ordinarily, in Washington they are disclosed. That’s why Protect Marriage Washington had to sue to prevent the state from disclosing them like usual.
October 22, 2009, 10:13 pmWASteve says:
We do to an extent. If you look at the Washington Voters Guide, here, there is a section prepared by those in favor/opposed to a measure, and those who write the statement are listed.
Organizations who sponsor the proposal tend to be listed. Note that this is not the same as the people who sign the petition, which is what this lawsuit is about.
If you want to uncover who the ‘money’ is behind a petition drive, then this is not going to reveal it, sorry to say.
October 23, 2009, 1:13 amPubliusFL says:
Voting for an initiative is a direct legislative act because voters are actually enacting legislation. And it’s important that the people know who is enacting the laws. We know who votes for legislation in the legislature; why shouldn’t we know who is voting for legislation when the proposal is placed directly to the people?
In other words, your analogy requires the abolition of the secret ballot, at least insofar as it applies to ballot initiatives and referenda.
Also, signing a petition is not like a legislator sponsoring a bill. Many people sign petitions quite liberally, applying a strong presumption in favor of ballot access regardless of their personal position on the specific proposal. It’s more like a legislator voting for cloture (sometimes on a bill he or she will vote against on the merits). It often means no more than “okay, let’s have a vote on this.”
October 23, 2009, 9:46 amSteve says:
In other words, your analogy requires the abolition of the secret ballot, at least insofar as it applies to ballot initiatives and referenda.
Not at all. Washington is free to keep the names secret if it chooses that policy. But there’s no Constitutional provision that says they can’t treat the petition applications as public records.
It’s more like a legislator voting for cloture (sometimes on a bill he or she will vote against on the merits).
If the documents showing which legislators voted for cloture were exempted from the public records law that would be no more acceptable than concealing the documents showing which ones voted for passage.
October 23, 2009, 9:53 amMargaret says:
When are they going to have a petition about mobbing and gangstalking?
October 23, 2009, 9:57 amSmallholder says:
PubliusFL wrote:
“Many people sign petitions quite liberally, applying a strong presumption in favor of ballot access regardless of their personal position on the specific proposal.”
I have seen several comments that are similar to this. Is it really accurate? I only sign petitions that I agree with. So we have two data points – PubliusFL and Smallholder. Are there studies that actually track petition signing motivation?
I’m pretty sure no one is going to knowingly sign a petition in support of NAMBLA. I’m also pretty sure that most people who are pro-choice would be unwilling to sign a petition putting an abortion ban on the ballot.
But I really don’t know. Is the ideology of presumption of ballot access widespread?
October 23, 2009, 12:39 pmarbitraryaardvark says:
as i’ve said elsewhere, some thoughts on the 9th circuit decision.
The petition had a line for email (optional). I don’t know if that was
part of the official form or was added by the circulator.
Now signers who disclosed their email will be at risk of spam and
emailed threats (and fundraising solicitations). It’s a non-trivial
burden.
I think the 9th was correct in rejecting strict scrutiny. But I’m not
sure that O’Brien is the correct test. I would think after Crawford
that Anderson v Celebrezze is probably the correct standard. Is
O’Brien a more permissive test on these facts, and thus (if they got
it wrong, I’m only speculating) an error of law?
My biggest problem with the decision was footnote 6. Footnote 6 says
that since the district court didn’t reach count II, they won’t
either. Count II is a Socialist Workers v Brown type claim seeking an
as applied ruling that here there is some likelihood of harassment.
The court below didn’t reach this argument because it didn’t need to,
having granted count I.
But as I understand it, an injunction is supposed to be upheld if
there is any basis in law to do so, and does not need to rely on the
same reasoning used below. Wasn’t it reversible error to refuse to
address count II?
I think plaintiffs’ case is a lot stronger under count II.
Procedurally, can plaintiffs seek a new injunction in the lower court,
based on count II?
Some of the analysis of Count I is wrong. An insufficient petition can
October 23, 2009, 2:29 pmstill be challenged in court without public disclosure of the signers.
Pima County Public Records says:
Ahh I have been searching recordsfor a while now, but havent found what i’ve been looking for. very frustrating.
November 7, 2009, 10:58 pm