U.S. Supreme Court Upholds Mandatory Disclosure Laws In the Narrow Context of Petition Signing

John Kramer
John Kramer · June 24, 2010

Arlington, Va.—Today, the U.S. Supreme Court announced in Doe v. Reed that state governments may generally protect their initiative processes from fraud and mistake by releasing to the public the names and addresses of those who sign a ballot petition.  The Institute for Justice filed a friend of the court brief (www.ij.org/WAdisclosureAmicus) in support of the plaintiffs challenging disclosure.

Doe v. Reed concerns a petition to put a referendum about same-sex partnership rights on the November 2009 ballot in Washington state.  For more than 30 years, Washington had said that it would not disclose petition sheets under its Public Records Act.  But due to a recent change in that policy, Washington announced that it would release the names and addresses of more than 100,000 people who signed the controversial petition.  A number of individuals and organizations brought suit and argued before the Court that the Public Records Act violated the First Amendment rights of petitioner-signers.  In today’s rejection of that broad challenge, the Court held that “public disclosure of referendum petitions in general is substantially related to the important interest of preserving the integrity of the electoral process.”

“As the Court correctly recognized, there are clear First Amendment implications to a law like Washington’s,” said Steve Simpson, an Institute for Justice senior attorney who co-authored IJ’s brief.  “The Court, however, also recognized that states have an interest in regulating the time, place and manner of elections and concluded that ‘public disclosure can help cure the inadequacies of the [petition] verification and canvassing process.’  Although a broad ruling in favor of the First Amendment would have best protected Washingtonians’ privacy and speech rights, we are heartened that the Court instructed the lower court to determine whether compelled disclosure is justified in this particular instance.”
In his concurring opinion, Justice Alito pointed out how the plaintiffs are in a strong position to obtain an exemption from the Public Records Act’s requirements.  According to Justice Alito, “[t]he as-applied exemption plays a critical role in safeguarding First Amendment rights.”  But for those rights to be protected, “speakers must be able to obtain an as-applied exemption without clearing a high evidentiary hurdle.”  Alito also had harsh words about the state’s assertion that disclosure could be justified by a so-called “informational” interest—what amounts to disclosure for the sake of disclosure.  Alito wrote, “The implications of accepting [the state’s] argument are breathtaking.  Were we to accept respondents’ asserted information interest, the State would be free to require petition signers to disclose all kinds of demographic information, including the signer’s race, religion, political affiliation, sexual orientation, ethnic background, and interest-group memberships.  Requiring such disclosures, however, runs headfirst into a half century of our case law, which firmly establishes that individuals have a right to privacy of belief and association.”

In its amicus brief (www.ij.org/WAdisclosureAmicus), the Institute for Justice showed how mandatory disclosure laws like Washington’s profoundly chill speech and association.  For its groundbreaking report Disclosure Costs, Dr. Dick Carpenter of the Institute for Justice surveyed 2,000 people in six different states.  It turned out that “[t]hree 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.”  People said they were less likely to participate in part out of fear that mandatory disclosure could lead to threats to their personal safety, identity theft, invasion of privacy and loss of employment.  (For a copy of the report, visit:  http://www.ij.org/1624.)

“The Court correctly focused on the narrow context of the signature-verification process and went no further than that,” said Robert Frommer, an IJ staff attorney who co-authored the organization’s brief.  “The larger issue of whether states may require everyone to ‘name names’ in order to speak was not a part of today’s opinion.  The Institute for Justice will remain at the forefront of the nationwide fight to protect freedom of speech from burdensome disclosure laws.”
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.