By Kathleen A. Kirby & Scott W. Woodworth, Wiley Rein LLP


On Wednesday  the U.S. Supreme Court will hear arguments in a case concerning public records laws that seemingly puts First Amendment advocacy groups in the awkward position of arguing “against” free speech protections.  The case, Doe #1  v. Reed, has drawn national attention because it involves a battle over a domestic partnership law.  From a legal perspective, Doe. #1 v. Reed on its face pits the qualified First Amendment right to speak anonymously against a state public records act designed to assure transparency and accountability in government.  But there is more to the case than that, and it will be interesting to see how the court comes out, and why.

In May 2009, the State of Washington passed a law that granted benefits to couples (including same-sex couples) registered as domestic partners.  An organization called Protect Marriage Washington led a petition drive to place a referendum on Washington’s ballot that would offer voters a means through which to repeal the new state law (ultimately, the law was upheld).  In August 2009,  Washington’s Secretary of State received a public records request for the petition.  Under Washington State’s Public Records Act, petitions for referendum are public records. 

Protect Marriage Washington filed suit in federal district court seeking to enjoin publication, arguing that the individuals who signed the petition were engaging in political speech, and that such speech is entitled to anonymity.  The state 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 district court agreed with Project Marriage Washington, and issued an injunction barring disclosure of the names of 138,500 signatories.

On appeal, the Ninth Circuit reversed, finding that:

The district court’s analysis was based on the faulty premise that the [Public Records Act] regulates anonymous political speech.  The signatures at issue, however, are not anonymous.  First, the petitions are gathered in public, and there is no showing that the signature-gathering process is performed in a manner designed to protect the confidentiality of those who sign the petition.  Second, each petition sheet contains spaces for 20 signatures, exposing each signature to view by up to 19 other signers and any number of potential signers.  Third, any reasonable signer knows, or should know, that the petition must be submitted to the State to determine whether the referendum qualifies for the ballot, and the State makes no promise of confidentiality, either statutorily or otherwise. In fact, the PRA provides to the contrary. Fourth, Washington law specifically provides that both proponents and opponents of a referendum petition have the right to observe the State’s signature verification and canvassing process.  Thus, the district court’s finding that the speech at issue is anonymous is clearly erroneous.

The U.S. Supreme Court subsequently decided to hear the case and stayed the Ninth Circuit’s decision – thus the “author’s names” have  not been disclosed.  The high court has articulated two questions it will address:  1) 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; and (2) whether compelled public disclosure of identifying information about petition signers is narrowly tailored to a compelling interest.  The Ninth Circuit applied only intermediate scrutiny in finding for Washington State (essentially, the middle level of scrutiny applied by courts deciding constitutional issues—it must be shown that the law or policy being challenged furthers an important government interest in a way that is substantially related to that interest.  Strict scrutiny applies a more rigorous constitutional test). 

As the friend-of-the-court brief filed by the Reporters Committee for Freedom of the Press and joined by RTDNA and other media organizations(link) states, “this case concerns an issue critical to the media and the public in general: whether referendum petitions are protected speech under the First Amendment and the effect on government accountability and openness laws should referendum petitions become protected under the First Amendment.”  Notably, the brief argues that the petitioners were not engaged in speech because, during a referendum, citizens are engaged first and foremost in the legislative process and are acting in a governmental capacity.  Protecting such official acts as speech, the brief argues, serves only to enhance government secrecy and diminish accountability. 

The Attorneys General of 23 states also filed a joint amicus brief in support of Washington State.  The brief emphasizes each state has a compelling interest in preventing election fraud, ensuring the integrity of its elections, and promoting open government.  Washington State, the brief states, has reasonably tied these two regulatory strands by designating referendum petitions as public records, and together these laws function as a reasonable election regulation designed to allow for public oversight of the referendum process.

The case is Justice John Paul Stevens' last as a member of the U.S. Supreme Court.  Whether the court will be persuaded by the petition signers’ claim that they should be protected from intimidation when engaging in core political speech, or whether the court will hold that the state's interests in transparency and accountability in government trump, remains to be seen.