Callaghan: Lawsuit will help clarify free speech

By Peter Callaghan, Columbian Syndicated Columnist

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photoPeter Callaghan covers the state Legislature for The News Tribune in Tacoma. Blog: thenewstribune.com/politics; or Twitter: @CallaghanPeter. Reach him at peter.callaghan@thenewstribune.com.

Doe v. Reed isn’t really about Washington’s everything-but-marriage laws. It only seems that way. Those were the issues fought over in 2009 when a group called Protect Marriage Washington gathered enough signatures to put Referendum 71 on the ballot. If the effort had been successful, which it wasn’t, it would have overturned the latest legislation to broaden domestic partnership rights. But when lawyers for the group asked a federal judge to block disclosure of the names of 128,000 voters who signed R-71 petitions, it became an issue of public disclosure and open government.

Are the petitions submitted to secure a referendum a place on the ballot public records? If so, can disclosure be blocked in cases where signers risk threats, harassment or reprisals for the actions? Could such threats chill the signers’ First Amendment rights? I’ve always assumed petitions were public documents, as they should be. But the state for years had determined they were not. Current Secretary of State Sam Reed had reversed that position and took on the court challenge, arguing that the infringement on speech is minimal and does not outweigh the need for transparency and fraud prevention. Reed lost at the District Court, but prevailed at the Court of Appeals and at the U.S. Supreme Court.

“We conclude that disclosure under the (state public records act) would not violate the First Amendment with respect to referendum petitions in general,” wrote Chief Justice John Roberts in June 2010. Seven justices agreed, with Justice Antonin Scalia the most blunt. “For my part, I do not look forward to a society that, thanks to the Supreme Court, campaigns anonymously and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism,” Scalia wrote in a concurring opinion. “This does not resemble the Home of the Brave.”

‘Reasonable probability’

So why was everyone back in U.S. District Court Judge Benjamin Settle’s Tacoma courtroom on Oct. 3? They were there, some reluctantly, because the Supreme Court gave Protect Marriage Washington the opportunity to show that in this specific case there is “a reasonable probability” that release of signers’ names will still subject them to threats, harassment or reprisals. That’s the standard applied in previous cases to protect the NAACP and the Socialist Workers Party.

James Bopp Jr., the Indiana lawyer for Protect Marriage, pointed to harassment suffered by proponents of a similar measure in California. Before Settle’s injunction blocking release of names, groups in Washington had been planning to post signers’ name on websites. That, Bopp said, demonstrates the need for protection for signers here. But Assistant Attorney General Anne Egeler said the experience in Washington was much different from that in California. Names of donors to the yes campaign were released over the objections of the sponsors. Little harassment was reported, and police responded to the handful of threat complaints. “Angry words are not enough” to give extra protection to referendum signers, she said. “If so, every heated discussion would be enough to shut down public disclosure.”

Settle lamented the lack of clear direction from the Supreme Court on how to define when the give-and-take of campaigns meets the court’s standard of “threats, harassment or reprisals.” Roberts didn’t help much in his majority opinion, and other justices offered conflicting standards in their concurrences. “To give speech the breathing room it needs to flourish, prompt judicial remedies must be available well before the relevant speech occurs, and the burden of proof must be low,” wrote Justice Samuel Alito. “In light of those principles, the plaintiffs in this case have a strong argument that the (public records act) violates the First Amendment as applied to the Ref. 71 petition,” Alito wrote. But Justice Sonia Sotomayor disagreed, writing that the plaintiffs would have to show a “significant threat of harassment directed at those who sign the petition that cannot be mitigated by law enforcement measures.”

Settle is expected to release a decision soon. It will likely be appealed.