U.S. Supreme Court to Consider Access to Identities of Ballot Initiative Supporters

January has been a prolific month on the U.S. Supreme Court docket for cases raising First Amendment or other media issues.  In addition to the Citizens United and Presley decisions addressing limits on corporate political speech and access to jury voir dire proceedings, the Supreme Court earlier this month agreed to hear a case out of the Ninth Circuit involving public access to the petitions that put in place a controversial Washington ballot initiative.  The petitions were sought under a state sunshine law in an effort to learn the identities of those who supported placing the initiative on the ballot.  The case therefore presents an interesting collision of the First Amendment rights to speak anonymously and to peaceably assemble and state sunshine laws.

We previously reported on the Doe v. Reed case, which the Supreme Court stayed while considering the petition for certiorari it ultimately granted this month.  The case relates to Referendum 71, a ballot initiative that appeared on the November 2009 ballot in the State of Washington and was intended as a vehicle for overturning a law, passed earlier in 2009 by the Washington legislature, that granted legal rights to domestic partners equivalent to those enjoyed by married couples.  The initiative passed with slightly above 53% of the vote, a result that upheld the law.

The dispute in Doe v. Reed involves the question of whether the signed petitions that ultimately allowed Referendum 71 to appear on the ballot constitute public records are subject to disclosure under Washington law as public records.  Nearly 138,000 names appear on these petitions.  The plaintiffs brought suit in federal court, contending that those who had requested the petitions had indicated they would publish the list of names on the Internet.  Making the list available under public records laws, according to the plaintiffs, threatened to chill the First Amendment activity of supporters of Referendum 71.  The plaintiffs assert that those who petitioned to include Referendum 71 on the November ballot would face harassment from opponents of the ballot measure if their names were made publicly available.

The district court issued a preliminary injunction barring release of the names, concluding that "supporting the referral of a referendum is protected political speech, which includes the component of the right to speak anonymously."  The Ninth Circuit reversed, holding that signing one of the petitions at issue does not constitute anonymous speech because the petitions are not created in a way that is designed to protect confidentiality.  It held further that the district court erred in applying strict scrutiny to Washington's sunshine law, and, when intermediate scrutiny is applied, the sunshine law passes muster because "each of the State’s asserted interests is sufficiently important to justify the PRA’s incidental limitations on referendum petition signers’ First Amendment freedoms."

The fact that the Supreme Court agreed to hear the case may signal that the Ninth Circuit ruling's days are numbered.  If that occurs, a sweeping decision affirming the right to speak anonymously would appear to be an important First Amendment victory.  However, the outcome here -- in which a third party has asserted a constitutional challenge to a sunshine law -- has troubling implications for those in the newsroom.  Reporters face enough trouble securing materials under state public records statutes without interference from third parties.  Reversal of the Ninth Circuit's decision may encourage court challenges to public records laws by third parties such as public employees or private entities contracting with or seeking money from public agencies.  We will watch closely for the outcome in this case, which is set to be argued in April.

Supreme Court Stays Appellate Ruling Requiring Disclosure of Ballot Initiative Supporters

The U.S. Supreme Court took action today in a high-profile public records dispute, issuing a stay of a Ninth Circuit ruling that requires the release of the names of those who petitioned to include a referendum on the ballot in the State of Washington this November.  The dispute relates to Referendum 71, a ballot initiative that would overturn a Washington law, passed this year, granting legal rights to domestic partners equivalent to those enjoyed by married couples.  The initiative was launched by a conservative group that opposes same-sex marriage.

In order to appear on the November ballot, supporters of Referendum 71 were required to secure in excess of 120,000 signatures on petitions.  They achieved that benchmark by the July deadline.  Shortly after the petitions were submitted, supporters of Referendum 71 filed suit in federal court in Washington, seeking a temporary restraining order that would block the release of the names appearing on the petitions.  Opponents of Referendum 71 had requested access to the names under Washington's public disclosure act.

According to the plaintiffs, those who had requested the list of names had indicated they would publish the list on the Internet.  In the federal lawsuit, the plaintiffs contended that making the list available under public records laws threatened to chill the First Amendment activity of supporters of Referendum 71.  The plaintiffs contend those who petitioned to include Referendum 71 on the November ballot would face harassment from opponents of the ballot measure if their names were made publicly available.

This case therefore presents an interesting intersection of the statutory right to access public records and the First Amendment right to speak and participate in the political process anonymously.  In response to the plaintiffs' lawsuit, the federal district judge issued in July a temporary restraining order and later in September a preliminary injunction blocking the release of the petitioners' names.  According to the September decision, the plaintiffs' legal theory is as follows:

In Count I of the complaint, Plaintiffs allege that the Washington Public Records
Act, RCW 42.56.001, violates the First Amendment as applied to referendum petitions because the act is not narrowly tailored to serve a compelling governmental interest. In Count II, Plaintiffs allege that the Public Records Act is unconstitutional as applied to R-71 because “there is a reasonable probability that the signatories of the R-71 petition will be subjected to threats, harassment, and reprisals.”

In its ruling, the district court concluded that "supporting the referral of a referendum is protected political speech, which includes the component of the right to speak anonymously."  The court went on to conclude that the public nature of the petition verification process (which may be observed by initiative opponents and proponents alike so long as information contained on the petitions is not recorded) meant that public disclosure of the names on the petitions was not necessary as a check on the integrity of the referendum process.

The State of Washington appealed the decision entering a preliminary injunction to the Ninth Circuit Court of Appeals, which, in an order released October 15, reversed the district court's decision and required the release of the list of petitioners.  The Ninth Circuit has not yet issued a written decision, but rather has indicated that a full written opinion will follow in due course.  In arguing its case to the Ninth Circuit, the State of Washington maintained that the list of names should be publicly available under Washington's public disclosure law because the referendum process is more akin to the legislative process than to the secret ballot.

The case took a new twist today when Justice Anthony Kennedy issued a short order staying the Ninth Circuit's decision while the U.S. Supreme Court decided whether to take up the matter.  Justice Stevens was the only Justice who indicated he would have denied the stay request.  We will follow this case closely as it proceeds.