Doe v. Reed
Concerning the Compelled Disclosure of Petition Signatures
On June 24, 2010, the Supreme Court held that, as a general matter, the state's interest in ensuring election integrity outweighs the First Amendment interest of petitioner signatories. Chief Justice Roberts, writing for the Court, said that disclosure of signatures under a state open records law "would not violate the First Amendment with respect to referendum petitions in general." Doe v. Reed, 561 U.S. 186, 202 (2010). However, the Court left open the possibility that the disclosure of names for a particular referendum could violate the First Amendment. Justice Thomas, writing in dissent, said that it was not necessary for the state to publish the names of those who sign petitions to ensure valid elections. He noted techniques that could protect privacy and safeguard election integrity. In a concurrence, Justice Alito warned that the state could obtain vast powers to collect and disclose personal information about those who engage in the petition process. Justices Breyer, Scalia, Sotomayor, and Stevens also filed concurrences. EPIC had submitted an amicus brief in the case, arguing that "the privacy of petitioner signatories safeguards First Amendment interests and helps to ensure meaningful participation in the political process without fear of retribution."
- EPIC Urges Senate to Explore Kagan's Views on Privacy: In a letter to the Senate Judiciary Committee, EPIC has asked Senators to examine the views of the Supreme Court nominee on privacy and related issues. Noting that the Court increasingly confronts cases concerning the Fourth Amendment and privacy, EPIC said it is "important and necessary" to explore the nominee's views on these topics. The hearings are expected to continue through this week. See EPIC - Elena Kagan and Privacy and EPIC - Doe v. Reed and EPIC - City of Ontario v. Quon. (Jun. 28, 2010)
- Supreme Court Permits Disclosure of Petitioner Signatures: The Supreme Court has held in Doe v. Reed that, as a general matter, the state's interest in ensuring election integrity outweighs the First Amendment interest of petitioner signatories. Chief Justice Roberts writing for the Court, said that disclosure of signatures under a state open records law "would not violate the First Amendment with respect to referendum petitions in general." However, the Court left open the possibility that the disclosure of names for a particular referendum could violate the First Amendment. Justice Thomas, writing in dissent, said that it was not necessary for the state to publish the names of those who sign petitions to ensure valid elections. He noted techniques that could protect privacy and safeguard election integrity. In a concurrence, Justice Alito warned that the state could obtain vast powers to collect and disclose personal information about those who engage in the petition process. Justices Breyer, Scalia, Sotomayor, and Stevens also filed concurrences. EPIC submitted an amicus brief in the case, arguing that "the privacy of petitioner signatories safeguards First Amendment interests and helps to ensure meaningful participation in the political process without fear of retribution." For more information see, EPIC - Doe v. Reed. (Jun. 24, 2010)
- President Obama Nominates Elena Kagan for Supreme Court: President Obama has nominated Solicitor General Elena Kagan for the seat on the United States Supreme Court that will be vacated by Associate Justice John Paul Stevens when the term ends this June. Justice Stevens served as a justice for 35 years, and participated in many important privacy cases. Kagan, the former dean of Harvard Law School, wrote about the Supreme Court confirmation process in 1995 that Senators should insist on "evoking a nominee's comments on particular issues—involving privacy rights, free speech, race and gender discrimination, and so forth—that the Court regularly faces." EPIC has submitted amicus briefs in two cases currently before the Court. For more information, see EPIC - Doe v. Reed and EPIC - City of Ontario v. Quon. (May. 11, 2010)
- Supreme Court to Hear Arguments on Petitioner Privacy: The United States Supreme Court will hear arguments on Wednesday in the case of Doe v. Reed, in which the Court will determine whether the state of Washington may force disclosure of the names of citizens who have signed petitions for ballot initiatives. EPIC and 25 technical experts and legal scholars filed a "friend of the court" brief with the Court in March, urging the Justices to protect the privacy of those who sign petitions. EPIC's brief argues that revealing the names would subject signatories to the risk of retribution, that signing petitions constitutes anonymous speech, and that signing petitions is similar to casting a vote and should be protected accordingly. For more information, see EPIC Doe v. Reed. (Apr. 27, 2010)
- EPIC Files Supreme Court Brief for Petitioner Privacy: EPIC has filed a "friend of the court" brief in the United States Supreme Court, urging the Justices to protect the privacy of those who sign petitions. In Doe v. Reed, the Court has been asked to determine whether the state of Washington may force disclosure of the names of citizens who have signed petitions for ballot initiatives. EPIC's brief argues that revealing the names would subject signatories to the risk of retribution, that signing petitions constitutes anonymous speech, and that signing petitions is similar to casting a vote and should be protected accordingly. For more information, see EPIC Doe v. Reed. (Mar. 3, 2010)
The district court granted a preliminary injunction protecting against public disclosure, as opposed to private disclosure to the government only, of those signing a petition to put a referendum on the ballot ("petition signers"). The Ninth Circuit reversed, concluding that the district court based its decision on an incorrect conclusion of law when it determined that public disclosure of petition signers is subject to, and failed, strict scrutiny. The questions presented are:
- Whether the First Amendment right to privacy in political speech, association, and belief requires strict scrutiny when a state compels public release of identifying information about petition signers.
- Whether compelled public disclosure of identifying information about petition signers is narrowly tailored to a compelling interest, and whether Petitioners met all the elements required for a preliminary injunction.
The Facts of the Case
On May 18, 2009, Washington Governor Christine Gregoire signed Senate Bill 5688, which expanded the rights, responsibilities, and obligations of marriage —but not the term “marriage”— to same-sex partners.
Citizens of the state of Washington have the power to repeal acts of their legislature under the Washington State Constitution. To do so they must submit a petition evidencing sufficient support to warrant a referendum. The referendum is then put to election, and voters can approve or reject the legislation. In May 2009, an anti-gay marriage group, Protect Marriage Washington, began circulating Referendum 71. Referendum 71 would repeal Senate Bill 5688, and restrict the rights, responsibilities, and obligations of marriage to married heterosexual partners.
While Protect Marriage Washington was collecting signatures, several groups stated that they intended to use the Washington Public Records Act to obtain copies of petitions submitted to the Secretary. KnowThyNeighbor.org and WhoSigned.org stated publicly that they intended to place the names and addresses of Referendum 71 petition signers on the Internet to encourage “uncomfortable conversations.” Washington’s Secretary of State said that he intended to comply with requests for copies of Referendum 71 petitions.
On July 25, Protect Marriage Washington submitted a petition containing more than 138,500 signatures to the Secretary of State. The Secretary conducted an extensive canvass and verification of the petitions and determined that Referendum 71 qualified for the November ballot.
Fearing that the Secretary of State would disclose the names of the signatories of Referendum 71, Petitioners sued on July 28, 2009, alleging that the Public Records Act violates their First Amendment rights. Petitioners’ complaint asserted that the Act is unconstitutional as applied to referendum petitions because it violates the interest in privacy of identity, association, and belief. Petitioners also argued that the Act is unconstitutional as applied because “there is a reasonable probability that the signatories . . . will be subjected to threats, harassment, and reprisals.”
In addition to the Proposition 8 intimidation evidence, Petitioners submitted evidence that if the names were released, petition signatories in Washington would face harassment similar to that faced by Proposition 8 supporters in California. The Petitioners cited several examples of threats against Referendum 71 supporters that were emailed or posted online.
On September 10, the district court preliminarily enjoined the Secretary from releasing copies of the Referendum71 petition sheets. It applied strict scrutiny, holding that Petitioners established likely merits success and satisfied other preliminary injunction factors.
On October 15, the Ninth Circuit stayed the injunction, stating simply that the district court applied “an incorrect legal standard.” On October 19, Justice Kennedy stayed release of the petition. On October 20, the Supreme Court extended the stay. The Ninth Circuit issued its full opinion on October 22, saying the district court applied an “erroneous legal standard when it applied strict scrutiny.” Applying intermediate scrutiny, the Ninth Circuit found the Public Records Act likely constitutional as applied to referendum. The Petitioners appealed to the Supreme Court to settle the issue.
A History of Retaliation in the U.S. and Abroad
Petitioners have good reason to fear retaliation for their petition signatures. In the U.S. and abroad, petition signatories have frequently faced retaliation in the form of harassment, intimidation, threats, arrests, and injury because of their participation in petitions. Signatories of Referendum 71 are at serious risk of retribution if their identities are made public.
There have been a number of notable instances of retaliation against petition signatories in the United States, but none are more famous than those undertaken by the McCarthy-era House Un-American Activities Committee. In the 1960’s the Un-American Activities Committee pursued a number of “suspected communists.” Hearing records indicate that many of these suspects were named based on their participation as signatories in a variety of petitions, including a Petition to free Earl Browder, Communist Party Election Petitions, Communist Party Nominating Petitions, a petition to Governor Olsen of California to free Sam Darey, a petition for the American Committee for Democracy and Intellectual Freedom, a petition for the National Federation for Constitutional Liberties, petitions against the Mundt-Nixon Bill, and numerous other organizations. Witnesses before the Committee linked individuals with petitions they signed, then identified the individuals as communists (often as the basis of petition involvement). Many individuals named as communists suffered personal, political, and professional repercussions of these hearings.
October 2007 opinion column for The New York Times, historian and broadcaster Studs Terkel told of the retaliation against him, stating:
“In the 1950s, during the sad period known as the McCarthy era, one’s political beliefs again served as a rationale for government monitoring I was among those blacklisted for my political beliefs. My crime? I had signed petitions. Lots of them. I had signed on in opposition to Jim Crow laws and poll taxes and in favor of rent control and pacifism. Because the petitions were thought to be Communist-inspired, I lost my ability to work in television and radio after refusing to say that I had been ‘duped’ into signing my name to these causes.”
Like many politically active Americans at the time, Mr. Terkel was being investigated and monitored by the F.B.I. F.B.I. records have also frequently noted petition signatures in investigation files. Historian John Hope Franklin, who was a vocal supporter of “Communist” W.E.B. Dubois, had a full file at the F.B.I. The file included documents noting Franklin's signature on a petition against the McCarthy-era Committee on Un-American Activities. When John Lennon and Yoko Ono’s F.B.I. files were revealed, the files noted the fact that Lennon and his wife, Yoko Ono, had signed a petition in support of the Cambodian monarchy when the South-East Asian nation was being bombed by the US during the Vietnam War.
There are many more localized, modern examples of retaliation against petition signatories, as well. In Northern Michigan, the signatories of a recall petition expressed concerns about retaliation after state troopers began knocking on the doors of citizens who signed the petition. Petition signatories reported that officers were “harassing” and practicing “retaliation and intimidation.”
Empirical evidence from international referendum petition signatories illustrates the value of anonymity to petition signatories. Beginning in 2003, advocates in Venezuela circulated a petition calling for a referendum to recall the President of Venezuela at the time, Hugo Chavez . More than 2.4 million Venezuelans signed the petition. President Chavez asked Venezuela’s National Electoral Council (“CNE”) to provide copies of all the petition signatures, ostensibly to expose “mega-fraud.” A representative of the ruling party in the legislature, Luis Tascón, led the collection of the signatures, then posted on his website the database of signatures and national identity card numbers. Tascón stated that he posted the database in order to provide a way for people whose names appeared on the list, but who had not actually signed the petition, to complain to the CNE.
As a result, many individuals who worked for the government and whose names appeared on the list were fired, denied work, or denied issuance of official documents. Tascón later removed the list from his website after widespread complaints that the list was being used to discriminate against the petition signatories.
Scenarios like this have occurred worldwide. In China, signatories of a public appeal for human rights and democracy in China faced serious retaliation by the government. Several prominent signatories of the document, "Charter 08," were detained by the police, and at least 10 other people were questioned in connection with the document. One prominent activist was handed an 11-year jail sentence as a result.
In Russia, policemen allegedly visited and intimidated signatories of documents supporting the candidates of ecological and preservationist groups in the Primorsky district in the northeast of St. Petersburg. The police intimidation was done under the guise of investigating signature fraud, after a political opponent wrote a complaint to the election commission charging that the signatures were false.
In the Gaza Strip, Palestinian leader, Yasser Arafat lashed out against dissidents who signed a document blaming him for widespread government corruption. Arafat ordered 11 of the signatories arrested hours after the document was released and urged the parliament to lift the immunity of nine other signatories who were lawmakers. Palestinian lawmakers then decided to censure the dissidents involved in the petition. One of the dissidents was shot hours later; an attack that he said was retaliation for signing the anti-corruption document.
In East Germany, petitions were frequently grounds for political persecution and blacklisting. Stefan Heym, an internationally famous writer, signed the petition protesting the exile of Wolf Biermann, a German dissident and songwriter. From this point on Heym could only publish his works in the West.
These examples demonstrate the very real risk of political, physical, and professional retaliation that petition signatories face if their names are publicized.
As an organization that works on issues involving privacy, election law, and open government, EPIC has a great interest in this case, which implicates all three. EPIC has previously been involved in several anonymous speech cases, including Watchtower Bible & Tract Soc'y of N.Y., Inc. v. Vill. of Stratton, 536 U.S. 150 (2002). In Watchtower Bible, 2001, EPIC, the ACLU, and 14 legal scholars filed an amicus curiae brief arguing that an ordinance requiring door-to-door petitioners to obtain a permit and identify themselves upon demand violates the right of anonymity inherent in the First Amendment freedom of speech. EPIC supports the right of individuals to remain anonymous while voting and while engaging in Constitutionally-protected core political speech.
The Ninth Circuit’s determination in the present case threatens to expose the identity of petition signatories, individuals engaging in political speech - political speech that is often controversial. The Ninth Circuit decision, if upheld, threatens to deprive political speakers of their right to anonymity, and places them at risk of retribution and intimidation.
Supreme Court (PDFs)
- Common Sense for Oregon, the Oregon Anti-Crime Alliance, and Oregonians In Action
- Concerned Women for America
- Institute for Justice
- CATO Institute
- American Center for Law and Justice
- American Civil Rights Union
- Committee for Truth In Politics, the National Organization for Marriage, the Family Research Council, and American Values
- Voters Want More Choices
- The Alliance Defense Fund
- Protectmarriage.com-Yes on 8, A Project of California Renewal
- The Liberty Counsel
- The Abraham Lincoln Foundation for Public Policy Research, Inc., et al.
- The Center for Competitive Politics
- The Brennan Center for Justice, the Center for Responsive Politics, and the Sunlight Foundation
- Petition for Certiorari
- Brief in Opposition for Secretary of State Sam Reed
- Brief in Opposition for Washington Families Standing Together
- Petitioner's Reply
- Petitioner's Brief
Ninth Circuit Court of Appeals (PDFs)
- EPIC: Watchtower Bible v. Stratton
- EPIC: Crawford v. Marion County Election Board
- EPIC: Smith v. Doe
- EPIC: Voting Privacy
- Concerned Women for America Files Supreme Court Brief to Protect Privacy of Petition Signers, Christian Newswire, Mar. 5, 2010.
- Oregon Groups File Amicus Curiae Brief in Doe v Reed, the Petition Signers Privacy Case Pending in U.S. Supreme Court, Richard Winger, Ballot Access News, Mar. 1, 2010.
- Gay rights opponents to U.S. Supreme Court: Release of petitioners' names could spark violence, Levi Pulkkinen, Seattle Post Intelligencer, Feb. 25, 2010.
- U.S. Supreme Court to hear Referendum 71 case April 28, Janet Tu, The Seattle Times, Feb. 16, 2010.
- US Supreme Court sets date for R-71 case, The Seattle Times, Feb. 16, 2010.
- Sigh a petition, disclose your name?, Editorial, Los Angeles Times, Feb. 1, 2010.
- Justices to hear case on disclosure of names on a petition, Robert Barnes, Washington Post, Jan. 16, 2010.
- Court to Rule on Right to Privacy for Referendum Petition Signers, Adam Liptak, N.Y. Times, Jan. 15, 2010.
- Supreme Court to decide whether Wash. can release names of anti-gay rights petition signers, Jesse J. Holland, L.A. Times, Jan. 15, 2010.
- Do you have a right to be anonymous?, Mike Miller, Liberty Maven, Feb. 22, 2010.
- Anonymity versus Access in Doe v. Reed: An Overlooked Argument?, Lyrissa Lidsky, PrawfsBlawg, Feb. 17, 2010.
- U.S. Supreme Court to Consider Access to Identities of Ballot Initiative Supporters, Charles Coble, The Newsroom Law Blog, Jan. 29, 2010.
- Supreme Court Agrees to Decide Whether First Amendment Bars Government’s Releasing Names of Petition Signers, Eugene Volokh, The Volokh Conspiracy, Jan. 15, 2010.
- Court to rule on petition-signers’ rights, Lyle Denniston, SCOTUSblog, Jan. 15, 2010.
- Supreme Court Takes Up Case on Petition-Signer Privacy, Tony Mauro, The Blog of Legal Times, Jan. 15, 2010.
- Into the Closet, Linda Greenhouse, N.Y. Times Blog, Jan. 14, 2010.
- ScotusWiki: Doe v. Reed, ScotusWiki.
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Communications Law and Policy
Jerry Kang and Alan Butler