Doe v. Reed
130 S. Ct. 2811, 177 L. Ed. 2d 493, 2010 U.S. LEXIS 5256 (2010)
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Rule of Law:
The public disclosure of referendum petition signatures is not a per se violation of the First Amendment because it is substantially related to the important government interest of preserving electoral integrity, transparency, and accountability.
Facts:
- Washington state law allows citizens to challenge enacted legislation through a referendum process, which requires collecting a specified number of voter signatures on a petition.
- The Washington Public Records Act (PRA) makes all 'public records' available for public inspection, and the state considers submitted referendum petitions to be public records.
- In May 2009, Washington enacted Senate Bill 5688, which expanded the rights and responsibilities of state-registered domestic partners, including same-sex couples.
- Protect Marriage Washington, a state political committee, was formed to place a referendum (R-71) on the ballot to allow voters to reject SB 5688.
- On July 25, 2009, Protect Marriage Washington submitted a petition with over 137,000 signatures, including the signers' names and addresses as required by law.
- Several groups, including Washington Families Standing Together, and individuals submitted PRA requests to the Secretary of State for copies of the R-71 petition.
- Two organizations, WhoSigned.org and KnowThyNeighbor.org, publicly announced their intention to post the names of the R-71 petition signers online in a searchable format.
Procedural Posture:
- Protect Marriage Washington and several petition signers (John Doe, et al.) sued Washington's Secretary of State, Sam Reed, in the U.S. District Court for the Western District of Washington.
- The plaintiffs sought a preliminary injunction to prevent the state from releasing the R-71 petition signatures in response to public records requests.
- The complaint alleged two counts: Count I, that the PRA is unconstitutional as applied to referendum petitions in general, and Count II, that it is unconstitutional as applied specifically to the R-71 petition.
- The District Court granted the preliminary injunction based on its finding that the plaintiffs were likely to succeed on the merits of Count I.
- The Secretary of State and intervenor-defendants appealed the injunction to the U.S. Court of Appeals for the Ninth Circuit.
- The Ninth Circuit reversed the District Court's grant of the preliminary injunction, holding that the plaintiffs were unlikely to succeed on their broad challenge in Count I.
- The petition signers (petitioners) then sought and were granted a writ of certiorari from the U.S. Supreme Court.
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Issue:
Does the First Amendment prohibit a state from making referendum petitions, including the names and addresses of their signers, available to the general public under a public records law?
Opinions:
Majority - Chief Justice Roberts
No. The public disclosure of referendum petitions in general does not violate the First Amendment. While signing a petition is expressive activity that implicates First Amendment rights, 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 has an important interest in preserving the integrity of the electoral process by combating fraud, detecting invalid signatures, and fostering government transparency. Public disclosure is substantially related to this interest because it serves as a check on the government's verification process and helps detect fraud that is otherwise difficult to uncover. The plaintiffs' argument that disclosure will lead to harassment rests almost entirely on the controversial nature of this specific petition (R-71), but they have not shown that disclosure of typical, less controversial petitions imposes a similar burden. Therefore, the PRA's application to all referendum petitions is not unconstitutional, though a narrower, as-applied challenge for a specific petition showing a 'reasonable probability' of harassment remains possible.
Dissenting - Justice Thomas
Yes. Washington's compelled disclosure of referendum petitions severely burdens the First Amendment rights of political speech and association and should be held unconstitutional. These rights trigger strict scrutiny, which requires a law to be the least restrictive means to serve a compelling state interest. Washington's law fails this test because its interests in election integrity and transparency are not sufficiently compelling in this context, and even if they were, wholesale public disclosure is not the least restrictive means of achieving them. The state has numerous alternative measures, such as criminal penalties for fraud, observer access to the verification process, and the ability to create internal searchable databases without public release. The Court's reliance on as-applied challenges provides only a 'hollow assurance' that will chill speech, as the modern internet makes it easy to disseminate personal information and facilitate harassment for any petition, not just controversial ones.
Concurring - Justice Alito
No, the facial challenge fails, but the availability of as-applied exemptions is critical to protecting First Amendment rights in individual cases. While many referenda are uncontroversial, the plaintiffs have a strong argument that the PRA is unconstitutional as applied to the R-71 petition, citing widespread harassment of supporters of California's similar Proposition 8. For the as-applied exemption to be meaningful, plaintiffs must be able to obtain it quickly and without an overly burdensome evidentiary standard. The state’s informational interest is illegitimate, and its integrity interest is weakened by less restrictive alternatives and the state's own history of not disclosing petitions for many years.
Concurring - Justice Scalia
No, because signing a referendum petition is not 'speech' protected by the First Amendment; it is the exercise of legislative power. Historically, both legislating and voting have been public acts in the United States. There is no traditional or constitutional right to participate anonymously in an act with governmental effect. Therefore, there is no First Amendment right to be balanced against the state's interests, and the disclosure is permissible. Requiring people to stand up publicly for their political acts fosters civic courage, which is essential for democracy.
Concurring - Justice Sotomayor
No, because states have 'considerable leeway' to structure their own direct democracy processes, which are inherently public. Public disclosure serves vital state interests in transparency and integrity. The burden on speech is minimal, as signing a petition is a voluntary entry into the public sphere. Therefore, as-applied challenges should bear a heavy burden and be granted only in rare circumstances, such as viewpoint discrimination or a reasonable probability of serious and widespread harassment that the state cannot control.
Concurring - Justice Stevens
No, because this is 'not a hard case.' The burden on speech imposed by disclosure is not substantial, as it is a neutral policy concerning information already in the state's possession. The state's interest in deterring and detecting petition fraud provides a more than adequate justification for the policy. An as-applied challenge would be unlikely to succeed unless there is a significant threat of harassment that law enforcement cannot mitigate.
Concurring - Justice Breyer
No, this case requires balancing competing constitutional interests. The Court's opinion and Justice Stevens's opinion correctly perform this balancing test. The statute's salutary effects on transparency and election integrity are not out of proportion to the burden it places on the signers' interests.
Analysis:
This decision solidifies 'exacting scrutiny' as the standard for disclosure laws in the electoral context, differentiating it from the more stringent 'strict scrutiny.' It establishes a crucial distinction between broad facial challenges, which are difficult to sustain against transparency laws, and narrower as-applied challenges. The ruling preserves the general principle of openness in the referendum process while creating a safety valve for participants in highly controversial campaigns to seek exemption from disclosure by demonstrating a likelihood of harassment, effectively creating a two-tiered framework for evaluating such claims.
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