Transparency Trumps Privacy In Petitions, Court Says

U.S. Supreme Court building. i i

hide captionThe U.S. Supreme Court ruled 8-1 on Thursday that petition signatures are public record, with exceptions granted by lower courts.

Ken McCown/Flickr Creative Commons
U.S. Supreme Court building.

The U.S. Supreme Court ruled 8-1 on Thursday that petition signatures are public record, with exceptions granted by lower courts.

Ken McCown/Flickr Creative Commons

By a strong majority Thursday, the Supreme Court issued a setback for opponents of gay marriage who wanted to keep their identities secret. The justices favored transparency over privacy in a case testing whether signing a petition is a public act.

The case began with a bill that the Washington state Legislature passed in 2009, expanding the state's domestic partnership law. The new referendum was known as "everything but marriage" for the enhanced rights it gave same-sex couples.

People who opposed the bill gathered 120,000 signatures for a ballot measure asking voters to repeal it. That measure eventually reached Washington voters, who upheld "everything but marriage." Those who signed the repeal petition feared that they would be harassed if their names became public, so they went to court challenging Washington's Public Records Act.

They argued that a signing a petition is speech that is protected from disclosure. But in Thursday's 8-1 ruling, the Supreme Court disagreed. "Such disclosure does not, as a general matter, violate the First Amendment," Chief Justice John Roberts wrote for the court.

Washington's secretary of state, Sam Reed, was delighted. "It really is a victory for the people in terms of open government, transparency in government and the people's right to know," he said.

But There Are Exceptions

The justices said there can be exceptions to the rule of transparency, and they told the lower court to consider whether this case is such an exception.

"We're very confident that we will be able to meet those standards," said Jim Bopp, the lawyer representing those who signed the petition, "and that means that supporters of traditional marriage will be protected, and I think it's unfortunate that the court wasn't willing to protect everyone."

While the court was almost unanimous in the decision to favor transparency over privacy, the justices disagreed widely about who should get a privacy exception.

"There's still a willingness on the part of several of the justices to accommodate arguments that disclosure will lead to serious harassment," said Columbia Law School professor Richard Briffault. "There's just some disagreement over how much proof you need to have and how early in the process that proof can be put forward."

Chief Justice Roberts said very little about the standard of proof in the majority opinion. In contrast, Justice Samuel Alito wrote that "courts should be generous" in granting privacy exceptions. Justice Sonia Sotomayor disagreed, writing, "I view the burden on public disclosure ... as minimal in this context." Justice Antonin Scalia went further, saying, "I doubt whether signing a petition ... fits within 'the freedom of speech' at all."

Scalia's usual ally, Justice Clarence Thomas, took the opposite view and was the only dissenter. He wrote that Washington's public disclosure law is unconstitutional, arguing that it "chills citizen participation in the referendum process."

Looking Forward

Loyola law professor Rick Hasen says this is just Chapter 1 on this issue.

"They're all writing because of what they see as what's coming next," Hasen says, "which is deciding in a particular case whether or not there's enough proof of harassment to justify an exemption."

Hasen says it is important that the justices favor disclosure over privacy in this case, because a similar issue is bubbling up in a different area — campaign finance regulation. Congress is considering disclosure rules to tell voters who is funding political campaigns.

"As the court starts striking down limits on campaign money, as they did in the Citizens United case earlier in the term, the pressure's going to be on disclosure to do a lot of work in preventing corruption," Hasen says.

This case shows that a majority of the court is ready to let the information flow.

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