The limits of political speech

Fallout from the debate over gay marriage may be about to hit the U.S. Supreme Court in a unique way: Do groups favoring gay marriage (or its near equivalent) have the right to know the identities of people who want voters to reverse the issue?

The case comes from Washington state, which enacted a law last year known as the “everything but marriage law.” It granted same-sex couples most of the rights of spouses.

In Washington state, an issue can be put before voters if enough of them sign a petition. Enough of them did and the question went before voters last November. They approved of the law, which went into effect last month.

Two Web sites, however, were created to “out” those who signed the petition to try to overturn the law — and And a district court restrained the state from releasing the identities before the 9th Circuit Court of Appeals overturned the ruling. Now it’s before the U.S. Supreme Court.

What’s the issue? If you sign a political petition, is that protected speech under the Constitution, and if so, would making your name publicly available lead to harassment because of your political views? Would releasing your name violate your right to free speech?

The Appeals Court said the petitions were signed in public and there was no effort to protect their confidentiality.

It’s been a particularly tricky question since Proposition 8, overturning gay marriage in California, passed last November. Supporters of gay marriage used campaign contribution records to identify people who bankrolled the repeal effort. Even then Minnesota Timberwolves player Mark Madsen was targeted.

Does the possibility of being harassed for your political views intimidate you from expressing them?

In a tangential way, the Supreme Court acknowledged the danger of that when it ruled yesterday against televising the Proposition 8 trial underway in California. As I wrote on News Cut yesterday afternoon, the court said the publicity could lead to harassment of those testifying.

The Supreme Court justices will consider the case at a private conference tomorrow.

  • bsimon

    “Does the possibility of being harassed for your political views intimidate you from expressing them?”

    For some people, certainly. But is that an infringement of speech that the gov’t should be protecting us against? No.

    Signing a petition is arguably a form of speech. But I don’t understand the argument that publishing a list of people who sign a petition to the government somehow restricts those individuals’ rights to speech. They’ve spoken. I don’t think the right to free speech entitles the speaker to be free of the consequences of speaking.

  • JohnnyZoom

    It is not clear to me that freedom of speech is the only consideration here.

    I am thinking about political participation. Take voting, for example. For some reason this is deemed important enough to maintain one’s anonymity.

    Now clearly signing a petition is not the same thing as voting. But clearly it is similar in some ways. It is an official and formalized mechanism to influence the political process, apparently recognized as such by Washington law.

    I would have to imagine that there has been some precedent, that this isn’t the first time this scenario or similar has come up. I do not know if this distinction will be deemed relevent at all, but in the absence of any legal finding that it is not relevent, I would think it worth considering (IANAL and all that…)

    (For the record, the blog here is poorly worded about something. Where it says “signed the petition to try to overturn the law ” [emph mine], implies this petition is the same one mentioned in the preceding paragraph, where the ability to petition in Washington state is described. Yet that petition is to put the “everything but marriage” law to a vote. The one which was “signed” is one seeking its revoking after the vote passed.)

  • Lurleen

    Do groups favoring gay marriage (or its near equivalent) have the right to know the identities of people who want voters to reverse the issue?

    This is a fallacious set-up. This case has nothing to do with gay marriage and everything to do with examining the constitutionality of Washington’s Public Disclosure laws.

    If you want to tie this to gay anything, talk about the fact that this case is happening because the anti-gay group trying to kill the new Domestic partnership law, Protect Marriage Washington, decided they would be the first since the Public Disclosure laws were passed (via Initiative to the People in 1972 with 72% of the vote) to try to legislate in secret. It is part of a nationwide strategy used by National Organization for Marriage, ProtectMarriage,org and Focus on the Family to launder campaign contributions and legislate in the dark. And make no mistake, signing a referendum petition is a public act by a citizen legislator. It is the same as your senator standing in the legislature advocating for a bill. Imagine how terrifying it could get if that happened behind closed doors too.

    The group defending the Domestic Partnership law, Washington Families Standing Together, requested copies of the petitions because there was convincing evidence that the Secretary of State erroneously accepted as valid a significant number of petition signatures. However, this was certainly not the first time a ballot committee has requested petition information. The request is a routine one.

  • Bob Collins

    The Appeals Court is pretty clear about what the issue is:

    “We are presented with the novel questions of whether referendum petition signatures are protected speech under the First Amendment and, if so, what level of scrutiny applies to government action that burdens such speech.”

  • BJ

    I think bsimon’s “free of the consequences of speaking. ” hits the nail on the head.

    Lots of problems with this, MANY people will sign a petition. Many would never vote for the amendment, but they feel it should be put to a vote.

    What is happening is making the petition a kind of public ballot. Verifying that people are authorized to sign the petition has always been part of the ballot (and candidate) strategy.

    some of you might recall that, I think, Gil Gutknecht, almost was not on the 2006 ballot because he gathered his signers before the time allowed. I think that ended up at MNSC before he was put on.

  • dgalitz

    A person’s vote is secret. A person’s registration (or even the fact of whether you actually voted in an election or not) is not because we want transparency in determining a person’s eligibility to vote.

    Signing a petition for an initiative or referendum seems to me more like registering to vote. States with referendums/initiatives have requirements as to whose signature is valid for the purpose of petitioning for an initiative or referendum. Transparency is needed in confirming the validity of the signatures collected.