Doe # 1 v. Reed (09-559)

Appealed from the U.S. Court of Appeals for the Ninth Circuit (Oct. 22, 2009)

Oral argument: Apr. 28, 2010

FIRST AMENDMENT, WASHINGTON'S PUBLIC RECORDS ACT, WASHINGTON'S REFERENDUM PROCESS, PRELIMINARY INJUNCTION, POLITICAL SPEECH, STRICT SCRUTINY, PUBLIC DISCLOSURE

The dispute in this case centers on Washington's Public Records Act ("PRA"), which requires state and local governments to make public the identities of referendum petition signers. Petition signers challenged the constitutionality of this disclosure, but the Ninth Circuit held that disclosure of petition signers’ identities serves an important government interest and promotes government accountability. Specifically, petitioners, John Doe #1, et al. ("Doe #1"), argue that petition signing is core political speech and, therefore, is subject to First Amendment protections. Respondents, Washington Secretary of State Sam Reed, et al. ("Reed"), contend that petition signing, especially the signing of referendum petitions, is not political speech. Rather, Reed asserts that signing a referendum is a legislative act and a "quintessentially public" exercise. Thus, in Doe #1 v. Reed the Supreme Court must decide 1) whether petition signers’ First Amendment rights to privacy in political speech, association, and belief requires strict scrutiny when a state compels public release of identifying information and 2) whether compelled disclosure of petition signers’ identities is narrowly tailored to further a compelling state interest.

• [Question(s) presented]

• [Issue(s)]

• [Facts]

• [Discussion]

• [Analysis]

Questions presented

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:

1. 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.

2. 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.

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Issues

Whether Washington’s Public Records Act (“PRA”), which makes signatures on referendum petitions part of public records, violates the First Amendment.

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Facts

On May 18, 2009, the Governor of Washington signed SB 5688. See Doe #1 v. Reed, 586 F.3d 671, 674-75 (9th Cir. 2009). The bill, commonly known as the “everything but marriage act,” affects state-registered domestic partners and expands their rights. See id. at 675. In response to the bill, Larry Stickney, the campaign manager for Protect Marriage in Washington, filed notice with the Washington Secretary of State, Sam Reed, thereby enabling him to circulate a referendum petition opposing SB 5688 entitled “Preserve Marriage, Protect Children” (“Referendum 71”). See id. at 675.

Under its constitution, Washington State has a referendum process by which the people can reject any bill or law. See Doe #1, 586 F.3d at 674 (9th Cir. 2009). The person demanding the referendum must obtain “a number of signatures of legal voters equal to or exceeding four percent of the votes cast for the office of governor at the last regular gubernatorial election.” Wash. Rev. Code § 29A.72.150. The signed petition sheets, which include each signers name, address, city, and county at which he or she is registered to vote, must then be filed with the Secretary of State. Wash. Rev. Code § 29A.72.130; Doe #1, 586 F.3d at 674. At this point, the Secretary of State verifies and canvases the signers’ names. Wash. Rev. Code § 29A.72.230. The Secretary may also permit representatives of the advocates and opponents to observe this process, provided that they do not record any of the personal information the signers provided on the petition. Id. The Secretary then submits any referendum with a sufficient number of valid signatures to be voted on at the next general election. Wash. Const., art. II, § 1(d).

By August 20, 2009, various organizations had sent the Secretary of State requests to make the signed Referendum 71 petitions publicly accessible. See Doe #1, 586 F.3d 675 (9th Cir. 2009). The Washington Public Records Act (“PRA”), requires that state and local governments make public records available to the citizenry. Wash. Rev. Code § 42.56.070. On July 28, 2009, Petitioners, John Doe #1, et al. (“Doe #1”) filed an action to enjoin the State from releasing any information on the petition signers who supported Referendum 71. See Doe #1, 586 F.3d at 675. Doe #1 alleged that the PRA’s application to referendum petitions violated the First Amendment. See id. at 675-76.

On September 10, 2009, the U.S. District Court for the Western District of Washington granted Doe #1’s motion for a preliminary injunction and enjoined the release of the Referendum 71 petition under a theory of strict scrutiny. See Doe #1, 586 F.3d at 676. The State and Interveners appealed to U.S. Court of Appeals for the Ninth Circuit, which reversed the preliminary injunction. See id. The Ninth Circuit held that the district court ought to have applied intermediate scrutiny, rather than strict scrutiny to the PRA. See id. at 678–79. The Ninth Circuit articulated that under intermediate scrutiny, a statute that incidentally restricts expressive conduct is constitutional under the First Amendment if it “is within the constitutional power of the government to enforce, it furthers an important government interest unrelated to the suppression of free speech, and the incidental restriction on alleged First Amendment freedom is no greater than necessary to justify the interest.” Id. at 679 (citing United States v. O’Brien, 391 U.S. 367, 377 (1968). The court determined that the PRA met intermediate scrutiny because the interests of Washington in election integrity and informing voters were important and unrelated to suppressing speech and that the PRA’s incidental impact on speech was not greater than necessary. See id. at 680–81.

On January 15, 2010, the United States Supreme Court granted certiorari to determine whether Washington’s Public Records Act (“PRA”) violates the First Amendment guarantee to provide anonymity for political speech and association. See Question Presented.

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Discussion

The Supreme Court will decide whether petition signing with respect to a referendum is political speech and whether the First Amendment requires that the PRA be narrowly tailored to further a compelling state interest See Question Presented. Because this case involves important issues of political speech, privacy, and anonymity under the First Amendment, many interested parties have submitted amicus briefs.

Protectmarriage.com argues that protection for the petition signers against compelled disclosure of their identities is necessary and reflects a principal purpose of the First Amendment. See Brief of Amicus Curiae Protectmarriage.com - Yes on 8 in Support of Petitioners at 4–6. Drawing an analogy to the Framers of the U.S. Constitution who kept the Constitutional Convention proceedings a secret, it argues that anonymous political speech and private association are fundamental rights in our nation and have been since its inception. See id.

The Center for Constitutional Jurisprudence (“CCJ”) agrees with Protectmarriage.com, and claims that, as in the case of secret ballots for voting, anonymity for political speech will ensure legitimate outcomes. See Brief of Amicus Curiae Center for Constitutional Jurisprudence in Support of Petitioners at 7. The CCJ’s concern is that a lack of anonymity would deter citizens from voicing their opinions or encourage citizens not to express themselves truthfully, for fear of retribution resulting from forced disclosure. See id. at 8. The American Center for Law and Justice (“ACLJ”) argues that the right to anonymity in the referendum process would also protect signers from potential threats or intimidation from opponents and that it is the nation’s responsibility to safeguard its citizens. See Brief of Amicus Curiae the American Center for Law and Justice in Support of Petitioners at 9-10.

The ACLJ is particularly concerned about the subject matter contained in Referendum 71. See id. at 11. It describes same-sex marriage as “one of the most divisive issues of the day” and argues that “certain advocacy groups supporting same sex marriage have grown increasingly aggressive in targeting for harassment traditional marriage proponents.” Id. at 11–12. The ACLJ contends that opponents of same-sex marriage have been subject to harassment and retaliation in the context of other states’ marriage legislation such as California’s Proposition 8 and Arizona’s Proposition 102. See id. at 12–13. In addition, the Cato Institute (“Institute”) does not believe there is a compelling state interest here that would enable Washington State to reveal petition signers’ names. See Brief of Amicus Curiae Cato Institute in Support of Petitioners at 2. The Institute fears that if Washington were to abrogate the right to associational privacy, political activity would be chilled and citizens would be deterred from working together to achieve any political change—a key aspect of our democratic process. See id. at 2–3.

The Lambda Legal Defense and Education Fund, Inc., et al. (“Lambda Legal”), contend that Doe #1 and his amici have painted a “false picture” through their claims that same-sex supporters have engaged in or will engage in campaigns of intimidation, aggression, or retaliation against opponents of same-sex marriage legislation. See Brief of Amici Curiae Lambda Legal Defense and Education Fund, Inc., et al. in Support of Respondents at 17-18. Lambda Legal argues that regardless of allegations of a few instances of misconduct relating to Proposition 8 in California, there is no evidence of any coordinated effort to intimidate opponents of same-sex marriage and specifically, that there is no evidence of any significant harassment or retaliation against petition signers in this case. See id. at 18-19. Further, Lambda Legal contends that the Petitioners and their amici are attempting to misrepresent constitutionally protected disagreement and criticism by same-sex supporters as harassment and intimidation. See id. at 29–32. Lambda Legal urges that lesbian and gay people, the minority group that Referendum 71 targets, have a right to access petition records in order to defend themselves against hostile propositions and to encourage other citizens or legislative representatives to support them. See id. at 15.

The Reporters Committee for Freedom of the Press, et al. (“RFCP”), disagree with the categorization of petition signing as political speech that is advocated by Doe #1. See Brief of Amici Curiae the Reporters Committee for Freedom of the Press, et al. in Support of Respondents at 5. The RFCP argues that petition signing does not constitute “speech” and thus, does not implicate the First Amendment. See id. Instead, the RFCP contends that the citizens who engage in the referendum process are engaging in state action and are no longer private citizens but rather legislators and state actors. See id. at 5-7. And since citizens are engaged in a legislative act, they are no longer granted “traditional protections” under the First Amendment. See id. The RFCP strongly believes that such transparency is necessary to preserve our nation’s system of “open government and accountability.” See id. at 5.

The Direct Democracy Scholars (“Scholars”) agree and cite the Revised Code of Washington (“RCW”) to demonstrate that petition signing is different from voting, despite Doe #1’s claims that they are principally the same. See Brief Amici Curiae of Direct Democracy Scholars in Support of Respondents at 7. During the Secretary of State’s verification and canvassing process of the petition signers, the RCW permits “persons representing the advocates and opponents of the proposed measure [to observe] so long as they make no record of the names, addresses, or other information on the petitions or related records during the verification process.” Wash. Rev. Code § 29A.72.230. Thus, because the referendum process, unlike voting, is not entirely confidential, the Scholars conclude that petition signers cannot expect to have their identities and actions protected under the First Amendment. See Brief of Scholars at 7.

Respondent Washington Families Standing Together (“WAFST”), an advocacy group that requested records of the petition under the PRA, contends that any ill effects of the disclosure of the identity of petition signers are incidental and rare. See Brief for Respondent, Washington Families Standing Together at 58–59. Consequently, WAFST argues that a sweeping constitutional ban on disclosure is unjustified. See id. at 59. WAFST states that “passionate, rude, or even hostile speech relating to a single referendum in one state is not cause for this Court or any court to overturn reasonable state regulation….” Id. at 61.

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Analysis

Washington’s Public Records Act (“PRA”) requires that state and local governments make public records available to the citizenry. Wash. Rev. Code § 42.56.030; see Brief for Respondents, Sam Reed, et al. at 1. According to the PRA, initiative and referendum petitions are public records subject to the PRA. See id. Petitioners, John Doe #1, et al. (“Doe #1”), argue that petition signing is political speech subject to First Amendment protections. See Brief for Petitioners, John Doe #1, et al. at 17. The Ninth Circuit sided with respondents, Sam Reed, et al. (“Reed”), asserting that the disclosure of signers’ identities serves the important government interest of promoting government accountability and informed discussion among the citizenry. See Doe #1 v. Reed, 586 F.3d 671 (9th Cir. 2009); Brief for Respondents at 1. The Supreme Court must now decide whether petition signers’ First Amendment rights to privacy in political speech, association and belief requires strict scrutiny when a state compels public release of identifying information as well as whether the compelled public disclosure of identifying information is narrowly tailored to further a compelling state interest. See Questions Presented.

Does Compelled Public Disclosure of Identifying Information about Referendum Petition Signers Implicate First Amendment Protection?

Doe #1 argues that the First Amendment protects referendum petition signers, because the act of signing a petition is “core political speech.” Brief for Petitioners at 17. Doe #1 notes that in Buckley v. American Constitutional Law Foundation ("Buckley II"), the Court concluded that petition circulation is protected by the First Amendment, because the act of signature collection is “core political speech.” Id. at 17 (quoting 525 U.S. 182, 197 (1999)). Doe #1 explains that voting, which is done in secret, and petition signing are “inextricably tied” in that referendum signers control voting opportunities. See id. at 22. Doe #1 further explains that freedom of speech necessarily includes the right not to speak. See id. at 23. He argues that in order to put referenda on the ballot, Washington voters are forced to engage in compelled speech, which infringes on the right to privacy of association and belief. See id. at 23–24. He asserts that petition signing is essentially a private disclosure of identity, association, and belief rather than a public one. See id. at 36. He contends that petition signers anticipate disclosing their identity to the public official for official use and not to the general public. See id. at 37–38. He concludes that petition signers need First Amendment protection in order to prevent intimidation, corruption, social ostracism, and retaliation for their expression of opinion. See id. at 20–22, 38.

Conversely, Reed argues that the act of signing a referendum petition is a legislative act rather than an act of speech. See Brief for Respondents at 22. According to Reed it is a “quintessentially public act.” Id. Reed explains that the purpose of signatures is to satisfy a legislative requirement in that a certain number of signatures are needed to advance legislation through the political process. See id. at 26–27. Reed argues signing a referendum petition is merely an element of legislative process and does not involve a significant element of expressive conduct automatically requiring First Amendment protection. See id. at 28. For example, Reed argues that signers have no control over the content of the petition: “the petition circulator is in control of the arguments he or she will use to persuade a voter to sign the petition. A person signing a petition makes no such argument and has no such control.” Id. at 30. Further, he also asserts that a signature on a petition is not political speech, because that signature “may or may not mean the signer supports the referendum.” See id. at 28.

Reed also argues that Buckley II does not apply to this case. See Brief for Respondents at 30. He notes that Buckley II states that petition circulation is core political speech, but it does not expressly say that petition signing is also political speech. See id. at 31. In fact, according to Reed, Buckley II rejects the notion that everything associated with the ballot initiative process is automatically political speech warranting First Amendment protection. See id. at 32 (citing 525 U.S. at 191, 215).

What is the Appropriate Standard of Judicial Review and Does the Public Records Act Meet that Standard?

Doe #1 asserts that the district court was correct in issuing the injunction because when a state restricts core political speech and infringes upon the privacy interest in anonymous speech, courts should apply strict scrutiny. See Brief for Petitioners at 40. He explains that under strict scrutiny the PRA must be narrowly tailored to serve a compelling or overriding state interest. See id. at 41. According to Doe #1, strict scrutiny is appropriate in this situation, because retaliation and intimidation can burden core political speech. See id. He contends that the Ninth Circuit incorrectly employed intermediate scrutiny. See id. at 40. Intermediate scrutiny within the context of the First Amendment, as articulated by the Court in United States v. O’Brien, is a lesser standard than strict scrutiny and is satisfied when a government regulation furthers an important or substantial governmental interest that is unrelated to the suppression of speech, and the restriction on speech “is no greater than is essential” to further the interest. See United States v. O’Brien, 391 U.S. 367, 377 (1968); See Doe #1 v. Reed, 586 F.3d 671, 679 (9th Cir. 2009).

Alternately, Reed argues that the Court should apply a less exacting standard than strict scrutiny. See Brief for Respondents at 31. He contends that strict scrutiny is inappropriate, because the signing of petitions is neither expressive nor necessarily core political speech. See id. at 30, 32. Reed states that if First Amendment rights are implicated at all, the correct standard or review is intermediate scrutiny. See id. at 37. He cites O’Brien to explain that when "speech" and "nonspeech" elements are combined, as in this case, "a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms." Id. (quoting 391 U.S. at 377). Reed explains that under this standard, the PRA's order compelling disclosure of petition signers’ identities does not have to be the least restrictive means to achieve the Washington's information interests. See id.

Reed urges that the PRA satisfies two substantial governmental interests, namely promoting government transparency and encouraging informed discussions of State decisions. See Brief for Respondents at 39, 48. According to Reed, the PRA therefore satisfies the narrow tailoring required of intermediate scrutiny. See id. at 49. Reed explains that the purpose of the PRA is to promote accountability in government though public oversight of government activities and prevent corruption or fraud in the election and referendum process. See id. at 40. He further explains that the means to achieve this end are to give the public access to public records, such as referendum petitions, so that the public can decide if the Secretary of State appropriately certified a referendum and if to challenge a certification. See id. at 41.

Conversely, Doe #1 argues that Washington’s information interests in publicizing signers’ names and contact information are “neither compelling nor important.” See Brief for Petitioners at 49. He explains that "information interests" refers to the interest in collecting data on signers to learns who supports or opposes referenda. See id. Therefore, according to Doe #1, Washington failed to meet the exacting standards of strict scrutiny. See id. at 53. Doe #1 states that “the interest is compelling or important only if the information conveyed to the voters is significant.” See id. at 49. He asserts that “marginal information” gains are not enough to justify the disclosure of the identities of petition signers. See id. Doe #1 argues that Washington’s information interests are more directly served though “better-tailored regulations.” See id. at 51. Doe #1 contends that Washington failed to prove that less restrictive means are inadequate to achieve its goals. See id. at 53.

Doe #1 further contends that Washington's anti-fraud interest in favor of disclosure is insufficient. See Brief for Petitioners at 50. He explains that the detection of fraudulent signatures through the public release of referendum petitions is not worth the burden such a disclosure places on signers. See id. Doe #1 argues that fraud is not as imminent a concern as Washington suggests and that disclosure is an ineffective fraud-detection technique. See id. He notes that there is little incentive for fraud at the signature stage and, further, the State has found no fraudulent signatures as a result of the public release of petitions. See id.

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Conclusion

This case will determine whether Washington’s Public Records Act (“PRA”), which makes signatures on referendum petitions part of public records, violates the First Amendment guarantee of anonymous speech. PRA proponents argue the Act promotes government transparency and allows public access to vital information needed to engage in the political process. However, petitioners fear that the PRA will lead to intimidation, corruption and economic repercussion if personal information is made public.

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Authors

Prepared by: Barbara Bispham and Kate Hajjar

Edited by: Joseph Rancour

Additional Sources

Prawfsblawg: Anonymity versus Access in Doe v. Reed: An Overlooked Argument?

First Amendment Coalition: Supreme Court to Decide if Petition-Signers can Remain Anonymous

The Olympian: SB 5688 is About Fairness Not Gay Marriage

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Edited by