The U.S. Supreme Court delivered a big victory for open government when it ruled that political petition signers do not have a broad First Amendment guarantee to hide their names from public view. The 8-1 decision stemmed from a challenge by a Washington state religious group, which sought to block the identities of people who signed Referendum 71 petitions out of fear they would be harassed for trying to overturn the state’s “everything but marriage” gay-rights law.
Of the 24 states that allow for citizen initiatives, 23 of them, including Washington and Idaho, deem petitions to be public records. When a couple of advocacy groups sought the Referendum 71 names so they could post them on the Internet, the cry arose that this would chill free speech.
Except for Clarence Thomas, all of the justices accepted the argument that states have wide latitude to protect the integrity of elections via transparency. Disclosure doesn’t inherently infringe on free speech. It is a facet of state election law, like requiring signers to be registered voters. If people want to express themselves anonymously on a topic, they still can. But if they want to be part of the lawmaking process – and this referendum would have overturned a state law – they must do so openly.
Writing for the majority, Chief Justice John Roberts noted that many controversial issues such as taxation, private property rights and education have been decided by voter initiatives without the harassment and intimidation of petition signers. If this case deserves special consideration, he wrote, the plaintiffs can still go to a state court to demonstrate why it merits an exemption from the Public Records Act. That will probably be the next step in this case, but we don’t think the plaintiffs have demonstrated sufficient need.
Had the high court ruled that the possibility of harassment trumps open government, then it would have also called into question other transparency-related laws, such as requiring the disclosure of individuals and groups who give campaign contributions. The plaintiffs’ expectation of privacy was preposterous given the way in which petitions are handled. Anyone can see the rest of the names when they sign.
Washington state Attorney General Rob McKenna, who argued this case in front of the U.S. Supreme Court, deserves credit for his steadfast defense of the Public Records Act. The state was right to fight against the anonymous shaping of public policy. The court was wise to see that open government is not detrimental to the First Amendment.
Subscribe to the Morning Review newsletter
Get the day’s top headlines delivered to your inbox every morning by subscribing to our newsletter.