Over the past year, I've kept you updated about an important disclosure v. privacy case emanating from Washington State, regarding efforts by anti-gay-rights organizers to shield the names of referendum signers from public view. The organizers presented no evidence of threats against petition signers, but had evidence from California's Prop 8 that organizers and contributors had faced retaliation, including vandalism and threats.
The case was argued before the Court yesterday, and let's just jump in towards the end of the argument by Jim Bopp, the attorney for the anti-gay groups arguing that the First Amendment shields the signers' names from disclosure under Washington's public records laws. The active question is as to the nature of the public's interest in learning who the petition signers are:
JUSTICE STEVENS: Isn't there another possible public interest? Would it be legitimate public interest to say, I would like to know who signed the petition, because I would like to try to persuade them that their views should be modified? Is there public interest in encouraging debate on the underlying issue?
MR. BOPP: Well, it's possible, but we think this information is marginal. In other words, the - it's much more important -
JUSTICE STEVENS: Well, it does identify people who have a -- a particular point of view on a public issue. And if you have the other point of view, don't you have an interest in finding out who -- you would like to convince to change their minds?
MR. BOPP: Well, we -- we think it's a -- a very marginal interest. The Ninth Circuit recently ruled that if you give a small contribution to an initiative there's not -- I mean, nobody cares. So why should it be publicly disclosed when it's so marginal?
JUSTICE SCALIA: What about just -- just -what about just wanting to know their names so you can criticize them?
(Laughter.)
MR. BOPP: Well -
JUSTICE SCALIA: Is -- is that such a bad thing in a democracy?
MR. BOPP: Well, what is bad is not the criticism, it's the public -- it's the government requiring you to disclose your identity and belief.
JUSTICE SCALIA: But part of the reason is so you can be out there and be responsible for the positions you have taken.
MR. BOPP: Well, then why don't they require both sides?
JUSTICE SCALIA: So that people -- people can criticize you for the position you have taken.
MR. BOPP: Then why don't they require both sides if that was the purpose?
JUSTICE SCALIA: What do you mean, "both sides"? The other side hasn't signed anything.
MR. BOPP: The other side -
(Laughter.)
JUSTICE SCALIA: When they sign something, they will be out there for public criticism as well.
MR. BOPP: Okay. But this is a one-way street.
JUSTICE SCALIA: Oh, this is such a touchy-feely, oh, so sensitive about -- about any -
(Laughter.)
JUSTICE SCALIA: You know, you can't run a democracy this way, with everybody being afraid of having his political positions known.
MR. BOPP: I'm sorry, Justice Scalia, but the campaign manager of this initiative had his family sleep in his living room because of the threats.
JUSTICE SCALIA: Well, that's bad. The threats should be moved against vigorously, but just because there can be criminal activity doesn't mean that you -- you have to eliminate a procedure that is otherwise perfectly reasonable.
And from slightly earlier:
JUSTICE SCALIA: The person who requests a referendum is taking -- when there's a certain number of signatures required to achieve it is taking part in that.
And in light of the fact that for the first century of our existence, even voting was public -- you either did it raising your hand or by voice, or later, you had a ballot that was very visibly red or blue so that people knew which party you were voting for -- the fact is that running a democracy takes a certain amount of civic courage. And the First Amendment does not protect you from criticism or even nasty phone calls when you exercise your political rights to legislate, or to take part in the legislative process.
You are asking us to enter into a whole new field where we have never gone before.
Lyle Denniston and Dahlia Lithwick add more color and analysis, including this overview from Lithwick of how the Washington Attorney General Rob McKenna's argument went:
McKenna tries to explain that there is simply no evidence of violence, threats, or harassment in the record with respect to people who merely sign petitions. Scalia presses him on whether the ugliness following the Proposition 8 referendum in California suffices as evidence of threats. McKenna says it needs "to rise above criticism. I think it would have to rise to the level of threat and violence." Kennedy then asks whether the court should be assuming that the Secretary of State is not capable of detecting fraud and error in a ballot petition without the assistance of the entire public. McKenna replies that it's the public that has unearthed error on numerous occasions, and Scalia chimes in to say, "Sometimes the public may not trust the Secretary of State!" McKenna agrees. "That goes to the heart to the Public Records Act, Justice Scalia, trust but verify."
Scalia grins. "Trust, but verify. I like that!"
Alito unloads another string of scary hypotheticals about the kinds of personal, racial, and identifying information Washington state might demand on a ballot initiative and ends with a personal flourish: "You know, if somebody called your office and said, 'I would like the home address of all the attorneys who work in the office because we want to go to their homes and have 'uncomfortable conversations' with them ...' " And again Scalia with the glove save cuts in: "Isn't that information—at least, the names of those people—isn't it probably public information anyway?"
As for what will likely happen, Tom Goldstein cautions that the Court only looked at the privacy claims on their face as to all petition signers -- a privacy claim which may only have Justice Thomas' and Alito's support -- it did not address at this stage the specific question as to whether these petition signers, based on the specific evidence of potential or real harassment here, had sufficient reason to be shielded from public disclosure:
I therefore expect the Court’s decision to be unanimous or nearly so in agreeing that the issuance of an injunction on Count I of the complaint was inappropriate and that the case should return to the district court for further proceedings. Beyond that, the Court may break into three separate camps: that as-applied challenges should be easy (Justice Alito); that they should be exceptionally hard or prohibited altogether (Justice Scalia); and that a middle ground is appropriate. Or the Court may finesse the issue of the proper standard by leaving it unresolved.
My fellow nerds can find all the briefs via ScotusWiki; expect a decision from the Court in June.
Also, it's worth noting, barring some emergency hearing this was the final oral argument of this term, and thus the last of Justice Stevens' forty years on the bench (5 on the Seventh Circuit, and 35 on the Supreme Court), and it's quite appropriate that his final question to counsel was, indeed, "If you have the other point of view, don't you have an interest in finding out who -- you would like to convince to change their minds?"