A little more light will shine on petitions for referenda because of Thursday’s U.S. Supreme Court ruling. The Court held 8-1 in Doe v. Reed [PDF] that the First Amendment does not categorically ban public access to the names and addresses of supporters of state-wide initiatives and referenda. However, in doing so, it also left a ticking time bomb for future advocates of disclosure.
The question arose from a state-wide vote in Washington on banning same-sex marriages, where supporters of the ban who signed a petition calling for the vote did not want their names released to the public. They were afraid the information would find its way online, and result in harassment and intimidation. Justice Roberts, writing for the majority, categorically upheld laws requiring the disclosure of names and addresses in petitions as constitutional, but deferred deciding whether disclosure of that information in this particular instance would violate the First Amendment.
Although not entirely unusual, nine justices managed to produce seven opinions, with members of the majority scrambling over one another to make distinctions at various levels of granularity. Only Justice Thomas dissented. (Full disclosure: Sunlight filed an amicus brief on behalf of neither party, arguing that whatever decision came down should not apply in the campaign finance context.)
The Opinion of the Court
Justice Roberts, writing the court's opinion, spends little time deciding that the First Amendment is implicated by the disclosure law. He sidesteps the question of whether the challenge to the law is on its face or as-applied – “the label is not what matters” – but treats the challenge as directed at the constitutionality of these kinds of disclosure laws, not how they’re applied in this instance.
He rapidly concludes that the law implicates the right of free expression, adding that governments should get significant latitude in how they wish to give legal effect to enforce electoral regulations. He adds another weight on the side of the constitutionality of the public records law by noting that the law does not prohibit speech, but rather requires disclosure.
Justice Roberts concludes that the state has a “sufficiently important” interest in “preserving the integrity of the electoral process by combating fraud, detecting invalid signatures, and fostering government transparency and accountability” to justify the burden on First Amendment rights. Moreover, he dismisses the concerns about mashing the names of petitioners with other information on the internet, potentially resulting in harassment, because “there is no reason to assume that any burdens imposed by disclosure of typical referendum petitions would be remotely like the burdens plaintiffs fear in this case.”
The majority leaves in a ticking time bomb: “upholding the law against a broad-based challenge does not foreclose a litigant's success in a narrower one.” I’ll get back to this ticking bomb a bit later.
Justice Scalia offers a distinction of rather large granularity and salinity to the opinion of the Court, which he joined, by expressing doubts on “whether signing a petition that has the effect of suspending a law fits within 'the freedom of speech' at all.” No other justice doubted this case had constitutional dimensions.
The Court's most articulate author donned a historian's cap and concluded (after a lengthy and engaging survey) that “the many-centuries-old practices of public legislating and voting” shows that the First Amendment, were it to apply here, has never (and thus does not now) prohibit public disclosure. Disclosure requirements are up to the states.
Justice Alito, who apparently grudgingly signed on to the majority opinion, spends his eleven pages laying out a roadmap to undercut the opinion in future decisions. Because many referenda regard non-controversial matters, the Court cannot categorically hold disclosure requirements for all referenda to be unconstitutional, he argues. However, there are times where applying the law in a particular case will chill protected speech.
He writes, “anyone with access to a computer could compile a wealth of information” about signatories of a petition with the result that “the potential that such information could be used for harassment is vast.” Thus, “to give speech the breathing room it needs to flourish, prompt judicial remedies must be available well before the relevant speech occurs and the burden of proof [to get an injunction] must be low.” Tipping his hand, he writes “plaintiffs have a strong case that they are entitled to applied relief, and they will be able to pursue such relief before the District Court.”
It is perhaps no surprise that Justice Sotomayor, joined by Justices Stevens and Ginsburg, reach the opposite conclusion, but still join the majority. She writes that “even when a referendum involves a particularly controversial subject and some petition signers fear harassment from nonstate actors, a State's important interests in protecting the integrity and reliability of the initiative process remains undiminished, and the State retains significant discretion in advancing those interests.”
For Justice Sotomayor, “openness in the democratic process” is her touchstone. She also advises the District Court, which will hear the as-applied challenge, saying “courts ... should be deeply skeptical of any assertion that the Constitution, which embraces political transparency, compels States to conceal the identity of persons who seek to participate in lawmaking through a state-created referendum process.”
Justice Stevens, with Justice Breyer joining, explains that everyone has missed the boat (but not the majority opinion). The law in question, he writes, is not about restricting voting (contra Justice Thomas) or speech (contra Justices Alito and Roberts) or classic disclosure requirements (contra Justices Scalia and Sotomayor), but rather a “neutral, nondiscriminatory policy of disclosing information already in the State's possession that, it has been alleged, might one day indirectly burden petition signatories.” You can see where this is going.
There's not much, if any burden imposed by the public record law, Justice Stevens argues. Even though there is the possibility that some situation may occur where the law is a burden, there must be “strong evidence” of a “significant threat of harassment directed at those who sign the petition that cannot be mitigated by law enforcement measures” before the Court should act. Justice Stevens also needles Justice Alito, arguing that you can't know which referenda are noncontroversial.
Justice Breyer can't help but add a one-paragraph opinion where he agrees with his other concurring opinion (which was written by Justice Stevens), explaining the reasonable approach is to ask “whether the statute burdens any one such interest in a manner out of proportion to the statute's salutary effects upon others.” His answer? Not in this case.
Justice Thomas’ Dissent
Justice Thomas argues that this case is not about the First Amendment's freedom of expression, but its freedom of association. This shift in emphasis allows Justice Thomas to draw on different precedents. He applies the most stringent legal standard, known as “strict scrutiny,” as compared with the majority's "exacting scrutiny," which inexorably leading him to conclude that the law is unconstitutional on its face.
Justice Thomas derides as quixotic his colleagues' reasoning that would permit “as-applied” challenges. He argues such challenges will require substantial litigation, be based upon an “interpretive process that itself would create an inevitably, pervasive, and serious risk of chilling protected speech,” and which would provide “no more than a hollow assurance that referendum signers' First Amendment rights will be protected.”
Where he hits the nail on the head is what keeps us at the Sunlight Foundation up at night: “It is still unclear what sort of evidence of threats, harassment, or reprisals directed towards [a signature gatherer's] referendum would satisfy the Court's standard.” Put into the campaign finance context in the post-Citizens United world, we are very concerned about how much proof is required of harassment that would shut off disclosure laws.
The Ticking Time Bomb
Justice Thomas raises a very good question. How do you weigh the risk of chill (if there is a chill) on speech against the importance of disclosure because such laws are invalidated? How do the justifications behind ballot signature disclosure laws compare with those in the campaign finance context?
The opinions in this case give us some clues. Justice Sotomayor, writing for three justices, posits that “while campaign finance disclosure injects the government into what would otherwise have been private political activity, the process of legislating by referendum is inherently public.” How will that play out? We have to wait and see. Tick. Tick. Tick.