Doe v. Reed
561 U.S. ____ (2010) (2010)
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Rule of Law:
The public disclosure of referendum petitions does not, as a general matter, violate the First Amendment because a state's interest in preserving the integrity of the electoral process is sufficiently important to justify the minor burdens imposed by disclosure on typical petitions.
Facts:
- The Washington Constitution reserves to the people the power to challenge state laws through a referendum process, which requires a petition containing valid signatures from registered voters.
- Washington law requires that referendum petitions include the signer's name and address.
- In May 2009, Washington's Governor signed Senate Bill 5688, which expanded the rights and responsibilities of state-registered domestic partners.
- Protect Marriage Washington, a state political committee, was formed to collect signatures for a referendum (R-71) to put SB 5688 to a popular vote.
- On July 25, 2009, Protect Marriage Washington submitted a petition with over 137,000 signatures to the Washington secretary of state.
- The Washington Public Records Act (PRA) makes all non-exempt 'public records' available for public inspection, and the state considers referendum petitions to be public records.
- Several private parties, including Washington Families Standing Together, invoked the PRA to obtain copies of the R-71 petition.
- At least two organizations announced their intention to post the names and addresses of the R-71 petition signers online in a searchable format.
Procedural Posture:
- Petition sponsors and individual signers sued the Washington secretary of state in the U.S. District Court for the Western District of Washington, seeking to enjoin the release of the R-71 petition signatures.
- The complaint included two counts: Count I challenged the Public Records Act as unconstitutional when applied to referendum petitions generally, and Count II challenged it as unconstitutional specifically as applied to the Referendum 71 petition.
- The District Court, ruling on Count I, granted a preliminary injunction, finding that the plaintiffs were likely to succeed on their broad challenge to the law.
- The secretary of state appealed the preliminary injunction to the U.S. Court of Appeals for the Ninth Circuit.
- The Ninth Circuit, reviewing only Count I, reversed the District Court's decision, holding that the plaintiffs were unlikely to succeed on their claim that the PRA is unconstitutional as applied to referendum petitions generally.
- The U.S. Supreme Court granted certiorari to review the Ninth Circuit's decision.
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Issue:
Does the public disclosure of referendum petitions under Washington's Public Records Act, as a general matter, violate the First Amendment rights of petition signers?
Opinions:
Majority - Chief Justice Roberts
No. The public disclosure of referendum petitions does not as a general matter violate the First Amendment. Signing a petition is expressive activity protected by the First Amendment, but disclosure requirements in the electoral context are subject to 'exacting scrutiny,' not strict scrutiny. This standard requires a 'substantial relation' between the disclosure requirement and a 'sufficiently important' governmental interest. Washington's asserted interest in preserving the integrity of the electoral process—by combating fraud, detecting invalid signatures, and promoting transparency and accountability—is sufficiently important. Public disclosure is substantially related to this interest as it helps detect forgery and other fraud that the secretary of state's limited review might miss. While the signers of this particular controversial petition may face a reasonable probability of threats or harassment, this case presents a broad challenge to the disclosure of all petitions. For a typical, less controversial referendum, the burdens imposed by disclosure are modest and do not outweigh the state's interests. The judgment is affirmed, but the plaintiffs are not foreclosed from pursuing their narrower, as-applied challenge specific to the R-71 petition in the District Court.
Concurring - Justice Breyer
I concur. This case requires balancing competing constitutional interests. The Court and Justice Stevens correctly balance the interests at stake, asking whether the statute burdens one interest in a manner out of proportion to its salutary effects upon others. For the reasons stated in those opinions, I agree that the challenged statute should be upheld.
Concurring - Justice Alito
I concur. The facial challenge must fail because many referendum petitions are uncontroversial and disclosure would not significantly chill the willingness of voters to sign them. However, the as-applied exemption is critical for safeguarding First Amendment rights in individual cases where there is a 'reasonable probability' of threats or harassment. Plaintiffs have a strong argument for such an exemption for the R-71 petition, especially given the harassment suffered by supporters of California's similar Proposition 8. The State's informational interest is illegitimate, and its integrity interest is undermined by the fact that Washington's referendum process operated for nearly a century without public disclosure.
Concurring - Justice Sotomayor
I concur. Referenda are state-created mechanisms of direct democracy, and states have considerable leeway to adopt reasonable, non-discriminatory regulations to govern them. Public disclosure falls within this realm, advancing the state's vital interests in electoral integrity and transparency. The burden on speech is minimal because participating in the legislative process is an inherently public act. As-applied challenges should succeed only in rare circumstances involving discrimination or a reasonable probability of serious and widespread harassment that the State cannot control.
Concurring-in-part-and-dissenting-in-part - Justice Stevens
I concur in the judgment. This is not a hard case. The application of the PRA to referendum petitions does not substantially burden individual expression because it is not a regulation of pure speech and any effect is minimal and indirect. The state's interest in deterring and detecting petition fraud provides an adequate justification for the policy. While an as-applied challenge remains possible, it should succeed only where there is a significant threat of harassment that cannot be mitigated by law enforcement.
Concurring - Justice Scalia
I concur in the judgment. I doubt that signing a petition that has the effect of suspending a law qualifies as 'the freedom of speech' at all; it is a legislative act. Our nation's long history of public legislating and public voting refutes any claim that the First Amendment provides a right to anonymity when performing an act with governmental effect. The Court should not engage in interest balancing here. Requiring people to stand up in public for their political acts fosters the civic courage necessary for a democracy.
Dissenting - Justice Thomas
I dissent. Compelled disclosure of signed referendum petitions severely burdens the First Amendment rights of political speech and association, and should therefore be subject to strict scrutiny. The PRA's application here is not the least restrictive means to vindicate the state's interest in electoral integrity. Washington could use less restrictive alternatives, such as creating a secure electronic database for verification that is not subject to wholesale public disclosure, or relying on its existing observer and criminal penalty provisions. The majority's reliance on as-applied challenges provides only a 'hollow assurance' and will inevitably chill protected speech, as the internet allows for rapid dissemination of personal information for purposes of harassment.
Analysis:
This decision establishes a significant framework for analyzing First Amendment challenges to election disclosure laws. By applying 'exacting scrutiny' rather than strict scrutiny to a facial challenge, the Court created a higher bar for striking down such laws in their entirety. The ruling bifurcates the analysis, making it very difficult to win a broad facial challenge against a disclosure law but preserving the viability of narrower, as-applied challenges for specific, controversial issues where plaintiffs can demonstrate a 'reasonable probability' of harm. This puts the evidentiary burden on those who fear reprisal to prove their specific circumstances warrant an exception, rather than invalidating disclosure statutes that promote the state's general interest in transparency and electoral integrity.
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