Do You Have a Right to Petition in Secret?

Yesterday, in the final U.S. Supreme Court case heard by Justice John Paul Stevens, my good friend Larry Stickney and his group, Protect Marriage Washington, squared off against Washington State Attorney General Rob McKenna in Doe #1 v. Reed to determine whether public disclosure of petition signatures is routinely allowed under the First Amendment; that is, whether such dislosure should be done only under strict scrutiny, narrowly tailored to serve a government interest, or, whether the state can simply release the signatures upon a normal request for public records.

You may recall the events that led to this case: Stickney and his group got R-71 on the ballot last year, which attempted to kill the "everything but marriage" law for gay couples. Pro-gay activists threatened him and his family, and others who publicly supported repealing that law. Some groups requested lists of the petition signators, with the obvious intent to harass and open them up to threats, which has an undoubtable "chilling effect" on whether people will sign petitions in the future.

You can make a strong case for keeping these signatures out of the public. The question is whether the First Amendment has anything to say about it, or whether states should be free to make their own policies.

Attorney James Bopp represented the John Does and Protect Marriage Washington. He drew comparisons -- and important distinctions -- to other disclosures, such as campaign finance and voter affiliation, noting that specific and overriding government interests were involved.

I won't get too far into the details, you can read the transcript itself -- which is more interesting than I thought it might be -- I think Justice Scalia sums up my view:

"And in light of the fact that for the firstcentury of our existence, even voting was public ... the fact is that running a democracy takes a certain amount of civic courage. 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. You are asking us to enter into a whole new field where we have never gone before."

He continues: "Didn't you have some options, too? Have you started a referendum to repeal the -- the [Washington] law that requires disclosure? ... [T]he people [of] Washington evidently think that this is not too much of an imposition upon people's courage, to -- to stand up and sign something and be willing to stand behind it. Now, if you don't like that, I can see doing it another way. But -- but the people of Washington have chosen to do it this -- this way. And you are saying that the First Amendment absolutely forbids that."

I feel very badly about these terrible people who threatened the Stickney family. I think our laws do not do enough to protect them by going after mentally unstable scum like John Bisceglia who use explicitly violent and targeted rhetoric to quiet free speech. And I think maybe our laws should exempt petition signatures from the Public Records Act, and instead rely on a separate process for verification.

But I don't see how our federal Constitution has anything to do with it.