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Gay rights activists and conservatives are switching sides on the issue of privacy in a case stemming from efforts to release the names of those who signed petitions for a referendum to overturn Washington state's so-called everything-but-marriage act. The U.S. Supreme Court is scheduled to hear the case, Doe vs. Reed, later this week.
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Although this is not a case about gay rights per se, it is one in which the lesbian-gay-bisexual-transsexual community has an interest, and the posture is an ironic one, considering the challenges constantly facing non-heterosexuals.
Because of fears of discrimination and violence, LGBT individuals have protected their privacy, wishing to come out on their own terms.
This case, however, involves LGBTs attempting to force the public exposure of thousands of people who oppose gay marriage.
The anonymous plaintiffs in Doe vs. Reed, members of Protect Marriage Washington, gathered 138,500 signatures on a petition, enough to get a referendum on the November 2009 ballot aimed at overturning the May 2009 expansion of the Washington State Registered Domestic Partnerships law.
The law gives unmarried gay and straight couples all the rights that accrue to married couples, except the right to consider themselves married. Various LGBT groups made it clear they intended to publish the signatories' names on Web sites, permissible under Washington's Public Records Act.
The plaintiffs sought to enjoin such publication because they feared harassment and other reprisals. They maintained by signing the petition they were exercising their freedom of speech, which does not require disclosure of the speech's authors' names.
The state, siding with the LGBTs, argued the First Amendment does not protect the anonymity of those whose actions have a direct effect on the political process and legislation, and that the public interest in disclosure of such actions trumps whatever free speech issues may be involved.
The federal trial court found for the petition signers and enjoined the release of the petitions bearing the signatories' names. The state appealed to the 9th U.S. Court of Appeals, which reversed and stayed the injunction. The plaintiffs filed an emergency application with the U.S. Supreme Court, which enforced the injunction, thereby keeping the petitioners' names from being released.
The referendum was defeated and the pro-gay law remains in effect. The high court will, nevertheless, hear the case on the underlying merits of the competing constitutional claims.
The 9th circuit applied only intermediate, rather than strict, scrutiny to find for the state of Washington. The court said not all laws that burden First Amendment rights are subject to strict scrutiny. ("Strict scrutiny" is the standard applied to cases in which an individual's constitutional right is the clear-cut and prevailing issue. Under this standard, the government must prove a compelling interest to outweigh the individual's rights.)
"A regulation that has an incidental effect on expressive conduct is constitutional as long as it withstands intermediate scrutiny," the appellate court said.
The court quoted 1968's United States vs. O'Brien in which a student's protest of the Vietnam War by burning his draft card was found to be communication enough to invoke the First Amendment, but not enough to outweigh the criminal prohibition against destroying the card.
"When 'speech' and 'non-speech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on First Amendment freedoms," the court said.
The court acknowledged the merits of Protect Marriage Washington's argument: "Signing a referendum petition has a 'speech' element such that petition signing qualifies as expressive conduct. We also assume that the PRA's (Public Records Act) public access provision has an incidental effect on referendum petition signers' speech by deterring some would-be signers from signing petitions." Those merits aside, the court applied intermediate scrutiny and found for the defendants.
But the governmental interest in disclosure of the names pursuant to the state's Public Records Act is strong enough to withstand even strict scrutiny. Most reputable scholars find the Doe vs. Reed conflict to be a close call, and many ultimately side with the state and the sexual orientation groups. The prevailing position is that the First Amendment privacy interests of not chilling political participation and thwarting the retribution of angry individuals or mobs is trumped by the state's interest in transparency and non-corruption of the political process.
Nevertheless, the Supreme Court has chosen, as one of the two questions it articulated for this case, to concern itself with which level of scrutiny should be applied. The high court questions 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.
The case for the interest of protecting the transparency of the political process is clear. Citizen challenges and subsequent exposures of fraudulent information on referendum papers could not occur without the opportunity to examine such papers. Signature gatherers often use deceptive practices to induce voters to sign petitions for referendums that those voters would not have signed had they known the true content of the proposed referendums. Only because of public disclosure of the petitions have voters been able to discover such deceptions and have their names removed from the petitions.
More importantly, public disclosure of referendum signatures is vitally important in educating the public about matters that may appear on a ballot. Only through the opportunity to obtain such information can media and interest organizations determine and scrutinize signatories and the measures used to get signatures, analyze the data's meaning, and disseminate information that will help voters make more informed referendum voting choices.
Despite this compelling state interest, sexual orientation groups that may enthusiastically support outing and shaming the Protect Marriage Washington proponents and exposing them to potential threats and harm should consider that such a position would amount to a double-edged sword. If the state wins in Doe vs. Reed, who knows what interest group next may be subject to outing under similar petition-signing circumstances? The LGBT community is particularly vulnerable because it risks persecution based on what and who its members are -- not merely on the ordinary type of unpopular political position or identification individuals choose to adopt.
The 9th circuit's decision should prevail because Washington's law was clear that referendum signatories' names may be released to the public. It is, however, precisely that law that is being challenged on a constitutional basis by the plaintiffs, and the 9th circuit all but ignored that point.
The Washington Public Records Act should be changed to resolve the competing interests of data verification on petitions and the admittedly more controversial political interests of disclosing to the public who supports what measures versus the chilling effect the fear of intimidation or harassment due to such exposure may have on First Amendment right of speech, association, and the participation in the free marketplace of ideas by those who hold unpopular political views. The anonymity of petition signers should, through legislation, be afforded some amount of protection. The very LGBT communities that sought the conservatives' exposure could come, someday, to appreciate such protection.
Historically, gays, as voting blocs, are liberals who will support civil liberties. In this case, however, the irony is that it is the conservatives who want to guard against a chill on free speech, and the LGBTs who want the political interests of transparency and disclosure to subjugate freedom of speech.
Members of minority groups certainly must be wary of championing measures, such as forced disclosure, that would discourage people from making political associations, as that easily could come back to haunt them. It's ironic, also -- and perhaps ultimately dangerous for the LGBT communities -- that they pushed for disclosure in Doe vs. Reed after having worked hard in the past to safeguard the names of their organizations' members.
