Anti-gay petition names made public

Timothy Kincaid

June 24th, 2010

Within the past few years there has been a push to publicize the names of those who sign anti-gay petitions. This does not sit well with anti-gay activists who count on anonymity to collect signatures and get propositions on ballots.

People are less likely to add their name if they think that their neighbor, the lady who bags their groceries, or the guy who mows their law will know that they did so. It is far easier to harm those around you if can do so secretly.

So when the state of Washington was ready to release the names of the signatories for Referndum 71, a petition to block domestic partnership rights, anti-gay activists sued. They claimed that they have a first amendment right to free speech and that they have the right to make this speech anonymously. The state countered that they need transparency in elections and that those who seek to legislate laws must be visible and accountable.

Much of the argument on the part of anti-gays was that the identities of those who signed the petition must be kept secret to shield them from the ookie-spookie gays who are hostile and violent. They claimed that they might lose customers if those customers learned that they wanted to deny them equality or that they might face disapproval from neighbors or others who learned of their efforts to enshrine discrimination.

It now appears, however, that the US Supreme Court did not find that argument convincing. (SeattlePI)

The Supreme Court ruled Thursday that the names of people who signed petitions in an attempt to overturn a new gay rights law in Washington must be made public, a victory for state officials who said the case was a test of open government laws.

So soon the names will be available. Use them responsibly and with restraint.

Update (Jim Burroway): If I read the decision correctly (PDF: 383KB/67 pages), it looks like the Supreme Court only ruled on whether the requirement for disclosure violates the first amendment:

But the question before the Court at this stage of the litigation is whether disclosure of referendum petitions in general violates the First Amendment. Faced with the State’s unrebutted arguments that only modest burdens attend thedisclosure of a typical petition, plaintiffs’ broad challenge to the PRA (the Washington Public Records Act) must be rejected. But upholding the PRA against a broad-based challenge does not foreclose success on plaintiffs’ narrower challenge inCount II, which is pending before the District Court.

According to the Supreme Court Opinion, “Count II of the complaint alleges that ‘[t]he Public Records Act is unconstitutional as applied to the Referendum 71 petition because there is a reasonable probability that the signatories of the Referendum 71 petition will be subjected to threats,harassment, and reprisals.'” That challenge appears to still be working its way through the lower courts.


June 24th, 2010

Not quite right. The initial coverage of the decision is taking place b4 reporters have had a chance to read the decision.

I just read the decision and it is limited to the facial challenge to WA’s disclosure law. The Supreme Court held that the R71 plaintiffs could still pursue their “as applied” claim in the district court. That means they can claim that the disclosure law is unconstitutional as applied to them, in this particular context which involves a genuine threat of harassment, even if the law is not unconstitutional in other contexts. The Supreme Court specifically said that it addressing the general issue of petitioning, and not the specific case of R71 petitions.

So now the case goes back to the biased Judge Settle for a ruling on the as applied claim. I think that they are very likely to lose that, since Settle could not have enjoyed having his initial decision rejected by 2 layers of appellate courts, but don’t expect the release of the petitions in the immediate future.

B John

June 24th, 2010

They claimed it was a question of free speech

I’m not an attorney, but understand basic civics and the Constitution well enough to know that Clarence Thomas has apparently no understanding of history or the Constitution.

Free Speech has a contingent adjunct, public speech…speaking in the public square (non-public speech…me talking to myself in my home…requires no protections). NOM claimed this was about free speech. I’ll stipulate that it is.

So, basically, they wanted the ability to have their supporters speak freely in public, but they wanted everyone else kept out of earshot. It was said more colorfully below, but inherent in the right to free public speech, is the ability to freely listen in the public square.

The founders were protecting free public speech, in which one could actually NOT be anonymous.


June 24th, 2010

Thanks for the update/correction. I have had a chance to read through the concurring opinions and it seems that various Justices attempted to signal to the lower courts how the “as applied” claim should be resolved. (Technically, the Court was correct not to rule on this claim, since it was not properly before the Court, but that doesn’t stop individual Justices from sending signals to the district court and the 9th Circuit).

All in all, I think it is good news for us. Justices Stevens, Sotomayor, Breyer, and Ginsburg all sent pretty clear signals that the as applied challenge should fail based on the evidence of “harassment” tendered to date. Justice Scalia pretty much said the same thing, only without specifically referencing the as applied claim. To his great credit, Scalia also notes the difference between illegal acts of harassment and legal acts that constitute harsh criticism.
So that is 5 Justices telling Judge Settle and the 9th Circuit that the jig is up.

Justice Alito’s concurrence signaled support for the as applied claim, but no one else joined him. Presumably, he would get support from Justice Thomas. Although 5 beats 2, Alito’s opinion is noteworthy inasmuch as it shows how the myth of the post-Prop 8 gay “reign of terror” has taken hold in the minds of conservatives.


June 24th, 2010

I knew the initial news reports were too good to be true. The heterosexual justices gave the lower courts room to just discriminate against gay people and make sure the status quo of disadvantaging gay people continues.


June 25th, 2010

@B John:

You said:

“So, basically, they wanted the ability to have their supporters speak freely in public, but they wanted everyone else kept out of earshot. It was said more colorfully below, but inherent in the right to free public speech, is the ability to freely listen in the public square.”

Nice way to put it. I admire that.

Jason D

June 25th, 2010

“So, basically, they wanted the ability to have their supporters speak freely in public, but they wanted everyone else kept out of earshot. It was said more colorfully below, but inherent in the right to free public speech, is the ability to freely listen in the public square.”

You can listen, just don’t write anything down — and stop looking at the people talking!!

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