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SCOTUS ON DISCLOSURE OF REFERENDUM PETITION SIGNERS’ IDENTITIES

Posted: July 15, 2010 Filed under: Case Law, Commentary, Law-Related News

The U.S. Supreme Court decided Doe No. 1 v. Reed, No. 09-559 (June 24, 2010) in an 8 to 1 opinion holding that disclosure of referendum petitions containing the names and addresses of signers generally does not impermissibly burden free speech: “We conclude that such disclosure does not as a general matter violate the First Amendment, and we therefore affirm the judgment of the Court of Appeals.”

The case gained public attention because the underlying referendum involved a Washington state law that “‘expand[ed] the rights and responsibilities” of state-registered domestic partners, including same-sex domestic partners.’” An organization called Protect marriage Washington collected 137,000 signatures in order to put the law before the general electorate. Individuals and entities requested copies of the petitions under the Washington public records law, and two organizations, WhoSigned.org and Know-ThyNeighbor.org, announced that they would the names of the petition signers online, in searchable format.

The petition sponsor and some signers filed a complaint seeking to declare the Washington public records law unconstitutional to the extent it permitted revelation of their names and contact information. The trial court ruled that the law “burdened core political speech” and ruled the petitions confidential. The Ninth Circuit Court of Appeals reversed, and the Supreme Court affirmed the Ninth Circuit’s decision.

Of note, the decision did not resolve the dispute in Washington. Writing for the Court, Chief Justice Roberts was careful to point out that the issue it decided was general rather than specific – “not whether disclosure of this particular petition would violate the First Amendment, but whether disclosure of referendum petitions in general would do so.” The Court answered the general question instead of the specific question because the trial court and the court of appeals had ruled only on the broader issue. So, now, the trial court must determine whether releasing the specific petitions would unconstitutionally burden free speech by subjecting signers to threats, harassment, or reprisals if their names were disclosed.

At this point, the purpose for seeking the identity of the signers is moot: Washington voters approved the domestic partner law by a margin of 53% to 47%.

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