If you'll remember back to June 2010,
the Supreme Court issued its ruling in Doe v Reed and held, as I put it at the time:
In an 8-1 (or 7-2 -- will explain) decision of the Supreme Court of the United States today, the Court held that disclosure of signers of political referenda did not generally violate the First Amendment, but that maybe such signers could prove specific harms that would fall upon them such that privacy rights outweighed the public's right to know.
Indeed, the Court heard the cries of
wolf! from the organizers of a 2009 anti-gay public referendum drive in Washington State ("R-71") and generally turned them away, holding that the signers' names were public and could be disclosed unless "there were a reasonable probability that the group’s members would face threats, harassment, or reprisals from either Government officials or private parties." Justice Scalia concurred, and you may recall his stirring conclusion:
There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously (McIntyre) and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.
The case was remanded to the trial court level for discovery and further proceedings to try to prove that alleged harm, leading to a decision today denying the motion to suppress the signers' names. The signers, ruled the Hon. Benjamin H. Settle of the Western District of Washington, certainly could not claim the same protections as groups like the NAACP and Socialist Workers Party in the past, as there was no evidence that they "constitute a fringe organization with unpopular or unorthodox beliefs or one that is seeking to further ideas that have been 'historically and pervasively rejected and vilified by both this country’s government and its citizens.'"
More importantly, their claims of harassment and threats were, simply, bullshit. The judge wasn't interested in their attempts to bootstrap alleged evidence of anti-anti-gay harassment from other states, leaving them with their own tales of "terror," which weren't much. Such as:
Matthew Chenier, John Doe # 2. Matthew Cheiner (“Chenier”) gathered signatures for R-71 in public locations and waved an R-71 banner in a high-traffic area with approximately seventy other people. See Stafford Decl., Ex. B (Chenier Dep.) 10:19-11:17, 14:17-15:10. Cheiner has stated he does not have concerns over the publication of his name and that he joined this action as a John Doe for the benefit of other people. Chenier Dep. 19:8-13, 38:6-17. The only negative events that Cheiner testified about in his deposition included (1) an angry text message from his brother; (2) being “mooned” by an unidentified passenger in a passing car; and (3) being “flipped off” by people in passing cars. Id. 19:17-20:4, 22:23-23:6, 25:7-23, 29:9-23. Absent from the record is any competent evidence, other than a text from Cheiner’s brother, that these incidents pertained to R-71.
Roy Hartwell, John Doe # 4. Roy Hartwell (“Hartwell) testified about R-71 in front of the Washington State legislature, gathered signatures for the petition in public places, and participated in television interviews regarding R-71. Stafford Decl., Ex. D (Hartwell Dep.) 7:13-8:18, 16:1-17:16, 25:17-23, 30:24-31:10.
Hartwell testified in his deposition that one harassing incident involved two ladies that glared at him and one said “we have feelings too.” This occurred while Hartwell was collecting signatures for R-71 at a grocery store. Id. 18:3-12 (also discussing that the comment appeared to shake an older lady up, who signed the petition anyway). Hartwell also testified about others who he believed harassed him about the R-71 petition. See e.g., id. 19:1-20:25 (discussing a woman who approached him at the grocery and asserted she would bring her friends to the church, which did not occur); 21:10-22:16 (discussing a lady who took Hartwell and Hartwell’s wife’s picture while they were collecting signatures at a Wal-Mart and said she would post them on Facebook to enable her friends to see what the Hartwells look like; Hartwell is unaware if the Facebook posting occurred); 22:23-23:10 (discussing a customer at Wal-Mart that asked a manager to ask the Hartwells to leave; the manager did not ask them to leave). In none of the events described by Hartwell did he feel the need to contact the police. See id. 23-11-25:9.
Not only did none of this rise to a sufficient level of threatening behavior to compel suppression of the names, nor did the way in which
funders of the referendum were treated:
Further still, [Protect Marriage Washington] secured donations to finance the campaign for R-71. It is undisputed that between May and November of 2009, PMW reported 857 contributions to its cause. The names and other personally identifying information of these donors has been public knowledge for over two years. Doe has had ample time and opportunity to contact these individuals, some of which likely signed the R-71 petition in addition to donating to PMW’s R-71 campaign. Even if none of these donors signed the R-71 petition, their experiences are far more closely related to the issues at hand than the random “evidence” supplied by Doe based on experiences of individuals around the country and the now stale experiences of those persons involved with Proposition 8. However, Doe has failed to supply sufficient, competent evidence that the publically known donors – as active supporters of R-71 – have experienced sufficient threats, harassment, or reprisals based on the disclosure of their information in connection to R-71 that would satisfy the reasonable probability standard that Doe must meet in this case.
So, the decision concludes:
[T]he Court finds that Doe has only supplied evidence that hurts rather than helps its case. Doe has supplied minimal testimony from a few witnesses who, in their respective deposition testimony, stated either that police efforts to mitigate reported incidents was sufficient or unnecessary. Doe has supplied no evidence that police were or are now unable or unwilling to mitigate any claimed harassment or are now unable or unwilling to control the same, should disclosure be made. This is a quite different situation than the progeny of cases providing an as-applied exemption wherein the government was actually involved in carrying out the harassment, which was historic, pervasive, and documented. To that end, the evidence supplied by Doe purporting to be the best set of experiences of threats, harassment, or reprisals suffered or reasonably likely to be suffered by R-71 signers cannot be characterized as “serious and widespread.”
Still, Judge Settle reminds us all, play nice:
While Plaintiffs have not shown serious and widespread threats, harassment, or reprisals against the signers of R-71, or even that such activity would be reasonably likely to occur upon the publication of their names and contact information, they have developed substantial evidence that the public advocacy of traditional marriage as the exclusive definition of marriage, or the expansion of rights for same sex partners, has engendered hostility in this state, and risen to violence elsewhere, against some who have engaged in that advocacy. This should concern every citizen and deserves the full attention of law enforcement when the line gets crossed and an advocate becomes the victim of a crime or is subject to a genuine threat of violence. The right of individuals to speak openly and associate with others who share common views without justified fear of harm is at the very foundation of preserving a free and open society.
As part of his order, Judge Settle formally lifted the injunction barring disclosure of the signers' names.
Potential next step: the anti-gay folks seek a stay from the Ninth Circuit and claim (a) the judge misapplied the Supreme Court's standard or (b) had better evidence than the Court suggests. And they'll lose. Again.
Updated: The Washington Secretary of State has already made the signers' names available. HT: N in Seattle.
