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Wednesday, February 17, 2010

Anonymity versus Access in Doe v. Reed: An Overlooked Argument?

Doe v. Reed, which is on the Supreme Court's oral argument calendar for April, is a media law professor's dream.  It pits the (qualified) First Amendment right to speak anonymously against a state public records act designed to assure transparency and accountability in government.   The case involves a Washington state referendum procedure.   The procedure allows citizens to call a referendum vote on any bill passed by the legislature if a specified percentage of Washington voters sign a petition to do so.  Opponents of same sex marriage used the referendum procedure to attempt to reverse a state law known as the "everything but marriage" act.  When proponents of same sex marriage rights sought access to the signed petitions under the Washington Public Records Act, two of the petition signers and a group called Protect Marriage Washington invoked their First Amendment rights and sought a preliminary injunction against disclosure.

The Ninth Circuit Court of Appeals held that the district court abused its discretion in granting the injunction against disclosure.  The Ninth Circuit applied intermediate scrutiny and held that access trumps anonymity, but the Supreme Court granted cert and stayed disclosure of the petition signers' names.  Although I am a strong defender of the right to speak anonymously, I sincerely hope the Supreme Court didn't grant cert in order to reverse the outcome in the Ninth Circuit.  I'm not comforted by the fact that the Ninth Circuit's decision seems to be lacking any critical engagement with the Supreme Court's anonymous speech precedent, particularly the seminal case of McIntyre v. Ohio Elections Commission. Therefore, I thought I'd sketch out here at least one argument that the Ninth Circuit seems to have overlooked. 

The Ninth Circuit refused to grapple with the anonymous speech precedent on the ground that speech was not truly anonymous: the petition signers could have had no legitimate expectation that the signatures would be kept confidential.  The signatures were gathered in public, and no steps were taken to block the signatures from view during the signing process.  In addition, the state's verification procedure for petitions seemed to negate any legitimate expectation of confidentiality.  Though I find this argument somewhat convincing, I'd have liked to at least see the Ninth Circuit hedge its bet by tackling McIntyre v. Ohio Elections Commission head on. 

The "anonymous" speaker in McIntyre did not have an expectation of absolute anonymity any more than the petition signers did.   Margaret McIntyre wrote handbills opposing a school tax referendum and handed them out in public to people attending public meetings. She omitted her name from some, but not all, of the handbills, signing them: “CONCERNED PARENTS AND TAXPAYERS. [sic].”  The Ohio Elections  Commission fined McIntyre $100 for violating an Ohio law forbidding distribution of any publication promoting a ballot issue unless it contained the “name and residence” of the person “who issues, makes, or is responsible therefor.”  The Supreme Court struck down the Ohio law on a 7-2 vote, holding that "an author’s decision to remain anonymous, like other decisions concerning omissions or addition to the content of a publication, is an aspect of freedom of speech protected by the First Amendment.” 

The Court rested its decision protecting anonymous speech on two grounds. The first ground was instrumental:  Protecting anonymity is necessary to induce some authors to contribute valuable information to  the marketplace of ideas.  The second ground was authorial autonomy:  An author’s decision to remain anonymous is an exercise of autonomy over choice of content, and “an author generally is free to decide whether or not to disclose his or her true identity.”  The Court labeled identification requirements “intrusive” because they require authors to reveal “the content of [their] thoughts on a controversial issue."  In essence, the Court treated the decision to remain anonymous as an editorial judgment like any other, which makes choosing to omit one’s name no different than choosing to omit an opposing viewpoint or to include serial commas.  The Court therefore found that the identification requirement operated as a content-based regulation of political speech and applied strict scrutiny, with a predictable outcome. 

From an "authorial autonomy" perspective, Doe v. Reed seems clearly distinguishable from McIntyre. Every "speaker" (petition signer) is making exactly the same "statement," namely, that he or she supports being allowed to vote to approve or disapprove the "everything but marriage" act passed by the Washington legislature.  The individual speaker is not exercising the kind of autonomy Margaret McIntyre exercised in deciding whether her identity would detract or add to her message.  There simply is no "editorial judgment" being exercised in deciding whether to sign the petition, and it is therefore hard to argue that the free speech interest in Doe stands on the same footing as the free speech interest in McIntyre

From an instrumental perspective, it might well be that some petition signers would think twice about signing if they knew their names would be released to the general public and put on the Internet.  Thus, disclosure might chill speech, to the extent signing the petition is speech. Arguably,however, this rather weak interest is outweighed by the need for disclosure, where, as in Doe v. Reed, the speaker is taking action which has "direct legislative effect," to borrow a phrase from the Ninth Circuit.  The petition signer is not acting merely in his role as citizen but in his role as citizen-legislator.  When he steps into this role, the public's interests in transparency and accountability in the legislative process arguably trump the rather weak First Amendment speech interest involved, at least where there has been no credible showing that disclosure will result in harassment of or violence against the petition signer. 

These, of course, aren't the only interests or arguments involved in Doe v. Reed.  One certainly could cast it as a case about anonymous association or privacy rather than a case about anonymous speech.  And I suspect the oral argument in the Supreme Court's is likely to focus on the probably outcome-determinative question of whether to apply intermediate scrutiny, as the Ninth Circuit did, or strict scrutiny, as McIntyre might seem to dictate.  This question is particularly interesting in light of the Supreme Court's seeming approval of disclosure requirements in the electoral context in its recent decision in CItizens United.  Regardless of how the case comes out, it should be fun to watch.

 

Posted by Lyrissa Lidsky on February 17, 2010 at 08:33 PM | Permalink

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The petition is not legislation. However, a subsequent referendum would generate legislation. So how then, by this argument, is it proper to conduct the election with a secret ballot. If this argument is right, then everyone should have to vote in public where everyone else knows how they voted. However, if the people have a right to vote on the issue itself with a secret ballot, then there is no rational argument to disclose the names of people who only asked that the issue be put on the ballot.

Posted by: Howard Gilbert | Feb 17, 2010 10:01:25 PM

The Doe v. Reed case is completely different from McIntyre, and any other past case. In McIntyre, the lady was coerced, under threat of punishment, into revealing her name. In this case the government is simply distributing information already in its possession, which voters gave to the government voluntarily. There is no coercion going on whatsoever; the government is not threatening to punish anyone for anything.

You might say that voters are "coerced" into giving their names to the government, and they should be allowed to sign the petitions anonymously. But this argument is clearly wrong; the government obviously has an interest in ensuring that real people are signing the forms. Once we establish that it's perfectly permissible for the government to collect these names, then the only thing the plaintiffs are challenging is the non-coercive, voluntary decision to release data within the government's possession, and no decision has remotely established that such a thing could be unconstitutional.

As for the eventual vote, other than Clarence Thomas voting for the plaintiffs, it's hard to predict. I would predict 5-4 for the plaintiffs, see Hollingsworth v. Perry (obviously legally distinguishable but the conservative Justices are not going to vote for the poor victims of the gay rights gestapo regardless of legal context).

Posted by: Guest poster | Feb 18, 2010 4:19:07 PM

(vote against, that is)

Posted by: Guest poster | Feb 18, 2010 4:21:35 PM

The case of anonymity seems very weak in this situation. A petition is an inherently public act. Part of the reason that there is a First Amendment right to petition it because people need protection from governmental action in the face of this inherently public act.

Equally important, the identity of a petitioner is a material fact in the case of a petition. Its validity hinges on it being valid, and it is impossible for the public to confirm its validity wihtout knowing the identity of the petitioners.

Signing a petition is voluntary. It isn't even a civic duty, like jury service. It is also less like speech than it is like a linguistic act such as a contract, a deed or a bill of sale, all of which are frequently subject to public disclosure.

Why is voting different? Not for constitutional reasons. There is not a constitutional right to cast a secret ballot. Indeed, the non-secret ballot was the constitutional norm in the United States for many decades. The secret ballot is a widely adopted statutory practice, but no more than that. So, the fact that a state allows secret ballots does not compel it to allow other political acts to be secret.

(Notably, most states, even now, do not allow the fact that you voted and are registered to vote (and often your party affiliation) to be kept secret, only the actual choice made on the ballot from behind the curtain is secret. In this case, the need to know to voter identity in a petition is similar to the need to know that someone who is registered to vote is really qualified to do so.)

Posted by: ohwilleke | Feb 19, 2010 1:00:59 PM

The legalities shouldn't obscure the question of just why the opponents of the proposed law want the petitioner's names. It probably is not so they can commend them for their civic action.

Posted by: Alan Stewart | May 1, 2010 12:12:59 AM

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