Arlington, Va.—Next week, the U.S. Supreme Court will hear oral arguments in Doe v. Reed, one of the most important free speech cases to reach the Court this term. The Court will decide whether Washington state’s Public Disclosure Act can constitutionally require the public disclosure of the names and addresses of more than 100,000 people who signed a petition to put a referendum on the November 2009 ballot. In its amicus brief (www.ij.org/WAdisclosureAmicus), the Institute for Justice warns that mandatory disclosure laws like Washington’s profoundly chill speech and association and asks the Court to rule that the state can address its legitimate concerns without violating the First Amendment.
“The only thing you should need in order to speak out about politics is an opinion, but modern disclosure laws force people to ‘name names’ in order to speak,” said Steve Simpson, an Institute for Justice senior attorney who co-authored the brief. “Making petition signers reveal themselves to the entire world means that many will stay silent. The Court should strike down Washington’s mandatory disclosure statute and hold that such laws have no place in a nation that prides itself on free and unfettered political debate.”
Anonymous speech has been a vital part of American political debate since the time of the Founding. John Jay, James Madison and Alexander Hamilton, for instance, wrote the Federalist Papers as “Publius” in order to persuade their fellow Americans to ratify the Constitution. Today, though, anyone who signs a petition or speaks out on a ballot issue must identify themselves to the state, which in turn makes that personal information available to everyone. Several groups in Washington, in an attempt to intimidate their political opponents, are seeking the names and addresses of everyone who signed a petition to put a referendum concerning same-sex partnership rights on the November 2009 ballot.
Historically, courts have assumed that these laws impose few, if any, costs on political speech. Until Dr. Dick Carpenter of the Institute for Justice researched the issue for his groundbreaking report Disclosure Costs, though, no one had actually tested that assumption. Dr. Carpenter surveyed 2,000 people in six different states, and the results were striking: Although most people said that they supported disclosure generally, that support evaporated as soon as people faced the prospect of having their own information made public.
As IJ’s amicus brief explains, “Three out of five people [surveyed] said that they would think twice about donating to a ballot-issue campaign if it meant that the state would disclose their names and addresses to the public.” When those surveyed were asked why they would refrain from donating, the reason most often given was a desire to keep their involvement anonymous. Some responses included, “Because I do not think it is anybody’s business what I donate and who I give it to,” and “I would not want my name associated with any effort. I would like to remain anonymous.” People were also concerned that having their personal information published could lead to threats to their personal safety, identity theft, invasion of privacy and loss of employment.
These concerns are not far-fetched. During California’s recent debates over Proposition 8, a law that banned gay marriage, both sides used the mandatory disclosure rolls to harass and intimidate their opponents. In one case, a restaurant manager was forced to resign after her $100 contribution to the anti-gay marriage group led to boycotts. And in another, gay marriage opponents used donor information to identify companies that had given to the other side and threatened to expose the companies unless they gave an equal amount to the opponents’ cause.
Likewise, the Washington groups that have demanded petition signers’ names and addresses have admitted that they intend to post the information on the Internet where they hope it will lead to “personal” and “uncomfortable” conversations. Some people have publicly announced their intention to “boycott the businesses of EVERYONE who signs your odious, bigoted petition.” Others have threatened violence against those who were publicly associated with the referendum.
Individuals have the right to speak out against—and even boycott—those who take opposing positions on issues. But the government has no business forcing anyone to publicly disclose their views and positions simply because they wish to sign a petition or support a cause. Mandatory disclosure laws like Washington’s facilitate intimidation and chill speech. Although the state has a legitimate role in validating petition signatures, that can be done easily without public disclosure of petition signatures.
“No one can make you reveal how you voted and likewise, no one should be able to force you to reveal whether you signed a petition or supported a cause before the election,” said Robert Frommer, an IJ staff attorney who co-authored the organization’s brief. “Mandatory disclosure of ballot issue supporters and signatories amounts to the government—and everyone else—peeking into the ballot box.”
The Institute for Justice vigorously defends the right of individuals to engage in political speech and challenges campaign finance laws nationwide. IJ recently secured a major victory before the entire U.S. Court of Appeals for the D.C. Circuit in SpeechNow.org v. FEC, in which the court held that the government could not place caps on how much individuals could give to an independent speech group. IJ is also challenging laws in Colorado that suppress speech about ballot issues by grassroots groups as well as Arizona’s “Clean Elections” law that funds political campaigns with taxpayer dollars. In addition, IJ has filed friend-of-the-court briefs in other important campaign finance cases, including Citizens United v. FEC, FEC v. Wisconsin Right to Life, and McConnell v. FEC. For more information, visit www.ij.org/FirstAmendment.