Back in 2009, Washington State Governor Christine Gregiore signed SB 5688, the so-called “Everything But Marriage” act. Source. Shortly thereafter, a group of concerned citizens calling themselves Protect Marriage Washington got enough signatures to place a referendum challenging the bill. Protecting marriage from what, exactly, remains a mystery but Imma call them “The Protectors” anyway. No word on if they have capes with an Xed-out picture of two guys holding hands. Anyway, shortly after Washington Secretary of State Gary Reed determined the signatures were valid, he received a public records request under Wash. Rev. Code §42.56.001 for the names and addresses of the 137,000 signatory Protectors. The Protectors didn’t like that one bit and asked for a preliminary injunction to prevent Secretary Reed from complying with the request. They are trying to say that disclosing their names and addresses violates the First Amendment because referendum petitions are political speech and the resulting harassment they would (allegedly) receive would stifle that speech. This case wound its way all the way to the Supreme Court. Here’s the Opinion: Doe v. Reed.
Boiled down, the Protector’s main gripe is that the government’s interest in preventing voter fraud and the integrity of the electoral process pales in comparison to the stifling of their first amendment rights because the public records request was made to harass them for their political views. The Big Dogs didn’t buy it. Justice Stevens’ concurrence sounded a little like “Why the hell are we even here?” so that was a treat. But the Nine did recognize that disclosure requirements could stifle speech in some cases and even allowed for an exemption if there is a “reasonable probability that the disclosure would result in threats or harassment.” They didn’t address whether the request was unconstitutional as applied to this particular petition, so the parties got sent packing back to the District Court in Tacoma to figure it out. Both promptly filed motions for summary judgment. Source.
The Protectors tried to convince the Court that they should be afforded the disclosure exemption because their paltry 137,000 signers are a minority party akin to the NAACP in 1958 or the 60 member Socialist Party in 1976. Really Protectors? Really? Anyway, Judge Settle disagrees. And even if the Protectors could be granted minority status, they still would have had to produce…uhm….oh yeah. Evidence. But, awshucks, they couldn’t come up with anything to show that they had experienced harassment, threats, or reprisals due to their involvement with the referendum. Oh-did I mention several of the Protectors posted YouTube videos, had television and radio interviews, stood on street corners with signs, testified before the Washington State Legislature, collected signatures in front of Wal Mart and Target, put signs in their front yards, had bumper stickers on their cars, and published articles about their anti-gay position? Yeah, they did that. But we need to protect their anonymity because they might be harassed because of this stupid petition.
Look, part of being a junk yard dog for the First Amendment means that sometimes I have to defend speech I find repulsive. For what it’s worth, I think the Protect Marriage folks are bunch of hate-spewing morons. They seek to stifle the speech of those opposing a view they willingly cram down our throats and then hide behind the very Amendment they kick in the nuts when it comes to other people’s naughty bits. BUT- If they could have come up with evidence showing a probability that they were being harassed, threatened, and harangued to the point they were fearful of expressing their view, I would argue in favor of exempting them from disclosure. But the Protector’s evidence of harassment consists of testimony that shows a pastor got a call from a *gasp* transgender woman. The horror! Another Protector got flipped off one day *shudder*! One guy even got called a homophobic bigot. The shame! No one was fearful to testify in the case. No one is being clubbed. No one is being swept down the street by fire hoses. The worst they could show is that sometimes the Protectors are called “assholes” and told that their platform “is a bunch of shit”. Well, if the shoe fits, Cinderella…
I guess I don’t understand how “The Protectors” are trying to stifle speech…
They were arguing that it was their speech that would be stifled. Their argument was that even though the referendum petition signatures are public record according to Washington law, those signatures should be kept anonymous because the signatories would be harassed, threatened, etc. The logic was that these threats would intimidate or otherwise discourage signatories from voicing their political opinion, therefore, making the information public was violative of their First Amendment rights.
Yeah, I get that, Beth… But read the following: “For what it’s worth, I think the Protect Marriage folks are bunch of hate-spewing morons. They seek to stifle the speech of those opposing a view they willingly cram down our throats and then hide behind the very Amendment they kick in the nuts when it comes to other people’s naughty bits.”
That seems to me like it is being suggested at The Protectors are in some way attempting to stifle speech, and unless I am missing it I just am not seeing anything in this post supporting such a claim.
Ah. Where I was going with that is that (theoretically) there is a colorable argument that by quashing the public records, they would deprive members of the public from presenting a counterpoint to the very people who are seeking to change the law as passed. Hence stifling the speech by depriving the opposition from directing their questions and counters to a particular individual. You’re right that the case didn’t really get into that aspect of it. Is it a weak argument? Perhaps. It’s just a something to think about.
I don’t think it was the Protector’s trying to stifle speech as much as them saying their speech would be stifled if the list gets out. They wanted to use the 1st amendment to quash a FOIA request.
“BUT- If they could have come up with evidence showing a probability that they were being harassed, threatened, and harangued to the point they were fearful of expressing their view, I would argue in favor of exempting them from disclosure.”
Homeboy lost his job after they released the names of prop 8 donors, close enough analogy for ya? I realize there is a difference between flippantly signing some damn petition at the grocery store and donating a grand, but are the tactics that their opponents intending to employ really that hard to predict?
I’m kind of on the fence here about the value of disclosing, but let’s not pretend the folks filing the FOIA just want to verify the signatures.
Not really the best analogy, IMHO. Prop 8 is a completely different case with a different set of facts. The problem in WA is that they had ample opportunity to come up with that sort of evidence and didn’t. Not one bit.
And maybe the PRA folks had some ulterior motive, as you suggest, but there wasn’t a shred of evidence to back up that accusation. That’s where the problem was in this case.
The “protectors” are trying to prevent people from publishing lists of petition signers. Such publication is speech.
Their argument is, essentially, the speech of publishing the lists may lead to more speech. More speech is bad. Therefore we must suppress the speech of publishing the lists.
Years ago, the US Supremes bought a similar argument. In Gompers v. Buck Stove, they agreed that a labor group could not publish a list of those it felt engaged in unfair practices. That publication, being pure speech, was dangerous because it could lead to the [in]action of not patronizing those engaging in unfair practices.
The Gompers case was positioned differently; the lesson we are supposed to take from it is to obey unconstitutional orders to shut up, not that orders to shut up are constitutional. I have been only a little unfair in my description of the case.