WASHINGTON (CN) – The Supreme Court appeared critical Wednesday of the claim that Washington state voters who signed a petition to overturn a gay-rights law are entitled to anonymity. Justice Antonin Scalia scoffed at what he called the “touchy-feely” arguments against disclosing their names, saying “you can’t run a democracy this way, with everybody being afraid of having his political positions known.”
“Running a democracy takes a certain amount of civic courage,” Scalia said. “And the First Amendment does not protect you from criticism or even nasty phone calls when you exercise your political rights to legislate, or to take part in the legislative process.”
But James Bopp Jr., representing two voters who signed the petition for Referendum 71, said First Amendment protection is necessary to prevent the kind of harassment experienced by supporters of Proposition 8, California’s ban on gay marriage.
Protect Marriage Washington had collected more than 138,000 signatures to place R-71 on the ballot in an effort to repeal a domestic-partnership law passed by state lawmakers in 2009.
Although voters ultimately affirmed the law, gay-rights activists urged state officials to release the names of petition signers. Protect Marriage Washington and two petition signers, John Doe I and John Doe II, claimed that doing so would expose supporters to harassment and intimidation.
As the justices listened to lawyers from both sides, they tried to feel out the boundaries of each argument. Most appeared to favor disclosure, though two of the court’s conservatives, Justice Samuel Alito and Chief Justice John Roberts Jr., appeared sympathetic at times to keeping the identities private.
Justice Sonia Sotomayor asked if protecting the signatures would invalidate similar state disclosure laws, such as laws requiring officials to publish voter registration lists. Bopp replied that it would not, but said those laws “would certainly be subject to First Amendment analysis.”
Justice Alito wanted to know if releasing the names could lead to the publication of people’s phone numbers, religious affiliation or ethnicity. State Attorney General Robert McKenna said it depended on whether the information would prevent voter fraud or help correct errors, the state’s main reasons for publishing the data. He said courts should view challenges on a case-by-case basis.
The state’s interest in disclosure is a key part of the case, because it will affect how the justices balance the First Amendment interests at stake.
Justice Anthony Kennedy suggested that revealing the names could help voters make informed decisions. “Don’t you think it’s relevant for the public to know that, say, a public employees union had paid solicitors to put those signatures on the ballot?” he asked Bopp.
Justice John Paul Stevens, hearing his last case before retirement, said the names could be useful in “encouraging debate on the underlying issue.” He said someone might want to identify political opponents and try to change their minds.
The case also raises the question of whether the act of signing a petition is purely political speech, which is typically protected, or a mixture of speech and conduct that’s subject to limited restrictions.
In the state’s view, signing a petition is both speech and a legislative act that exposes the signer’s identity to public view. The petitioners argue that it’s political speech, and that the state can’t force them to reveal their identities and beliefs, given the retaliation against Prop 8 supporters.
But Justice Ruth Bader Ginsburg quickly pointed out that the lower courts never considered the harassment claim, which would typically bar a higher court from reviewing it.
She also noted that Protect Marriage Washington used R-71 signatures for fundraising purposes without explicit consent. “So that would be the end of a person’s privacy, at least on one side,” she said.
The case landed in the Supreme Court after the 9th Circuit reversed a federal judge’s ruling barring disclosure. The high court temporarily blocked the release of signatures pending its ruling this summer.
Justice Kennedy hinted that the ruling would “be controlled by the court’s First Amendment precedents,” as there’s no direct precedent guiding this case.