Michael C. Dorf

Is There a Constitutional Right to Sign a Petition Anonymously?

By MICHAEL C. DORF


Monday, November 16, 2009

Last month, in Doe #1 v. Reed,the United States Court of Appeals for the Ninth Circuit rejected a claim that over one hundred thousand people who signed a Washington state petition have a constitutional right to prevent the public from learning their names and addresses. The plaintiffs, who have already prevailed on one aspect of their case in the Supreme Court, have now filed a new petition seeking review by the Justices. In this column, I consider the surprisingly difficult question of whether there is a constitutional right to sign a petition anonymously.

The Fight Over Washington's "Everything But Marriage Act"

Earlier this year, the state of Washington enacted SB 5688, commonly known as the "everything but marriage act," a law that extends to same-sex (and opposite-sex) domestic partners just about all of the rights of married couples, but not the term "marriage." Although proponents of same-sex marriage were disappointed because, in their view, the law did not go far enough, social conservatives thought it went too far. A conservative organization called Protect Marriage Washington (PMW) accordingly sought the repeal of SB 5688 by referendum.

PMW gathered 138,500 signatures of Washingtonians, a sufficient number to put Referendum 71 before the voters. Pursuant to Washington's Public Records Act, the petitions for a referendum—including the names and addresses of its signers—can be made available to the public. Thus, supporters of SB 5688 planned to post this information on their websites.

Claiming that they feared intimidation and harassment, PMW and two unnamed signers (John Doe #1 and John Doe #2) sued Washington officials to enjoin the release of the petitions. They argued that the public release of signatory information would violate the First Amendment.

A federal district court agreed, and enjoined the release of the petitions. The state appealed to the U.S. Court of Appeals for the Ninth Circuit. Then, after oral argument, that court stayed (that is, suspended the effect of) the district court's injunction. But five days later, in response to an emergency application, the Supreme Court in turn stayed the Ninth Circuit's decision, in a one-paragraph order. Two days after that, the Ninth Circuit issued its opinion explaining its reasons for reversing the district court. However, under the Supreme Court's order, the district court's injunction against release of the petitions will remain in effect until the Supreme Court itself decides what to do with the case.

Meanwhile, by a 53-47 percent margin, the voters in Washington rejected the effort to repeal SB 5688. Thus, same-sex (and opposite-sex) domestic partners in Washington continue to be entitled to the benefits of, but not the term, marriage. That resolution of the underlying substantive issue has not stopped the litigation over the petitioners' anonymity, however. The plaintiffs' request for Supreme Court review remains pending.

The Court of Appeals Too Casually Dismissed the Anonymous Speech Claim

The plaintiffs argue that they have a First Amendment right to engage in political speech anonymously. At the most general level, their claim has merit. In the 1995 case of McIntyre v. Ohio Elections Comm'n, the Supreme Court struck down an Ohio law that forbade anonymous distribution of campaign literature. The majority noted how the cloak of anonymity can be essential to protect someone who espouses or promotes unpopular opinions.

The Court cited notable examples of literary pen names. Most famous of all, of course, was the decision of the leading proponents of the Constitution's ratification—James Madison, Alexander Hamilton, and John Jay—to write what became The Federalist Papers under the name "Publius." Likewise, opponents of constitutional ratification used such pseudonyms as "Cato," "Centinel," and "Brutus."

Justice Stevens said for the Court that what held true at the time of the Constitution's adoption, also holds true under the Constitution in our day: Anonymous speech is protected, and thus restrictions on anonymous speech must be measured by the most exacting judicial scrutiny.

The district court in Doe #1 found that the state of Washington had insufficient grounds for publicly disclosing the names and addresses of the signers of the petition for Referendum 71, but the Ninth Circuit concluded that Washington was not actually regulating anonymous speech at all. Why not? Because the people who signed the petition did so in public view, listed their information on sheets of paper that would then be made available to up to nineteen more signatories, and knew or should have known that under Washington law, state officials as well as a small number of proponents and opponents of a referendum would examine signatures to verify their accuracy.

With all due respect, the Ninth Circuit's analysis is a non sequitur. The court said, in essence, that the plaintiffs were not really trying to sign the petition anonymously, or did not succeed in signing it in a truly anonymous way, because Washington law forbade them from doing so. But it is that very result—the combination of Washington's laws regulating petitions and its laws defining what counts as public information—that the plaintiffs were challenging. Of course the signatories understood that Washington denied them the right to sign a referendum petition and keep their identities private beyond what was necessary to verify their identities. That denial, their case asserts, violates the First Amendment. Yet the Ninth Circuit did not even address, much less answer, this claim.

Is Signing a Petition More Like a Campaign Contribution or More Like Pamphleteering?

How should the Ninth Circuit have addressed the anonymous speech issue? Or more to the point, if the Supreme Court grants review, what result should it reach? The answer partly depends on what analogy one finds most persuasive.

Although the McIntyre case protects anonymous pamphleteering, not all anonymous political activity is protected. For example, federal election law mandates disclosures of campaign contributors.

In McIntyre, the Court specifically distinguished mandated campaign finance disclosure as serving an anti-corruption objective. However, federal law also exempts minor parties from such disclosures, and in the 1982 case of Brown v. Socialist Workers '74 Campaign Comm., the Court held that the First Amendment forbade the application of a donation-disclosure law to a small party whose members and supporters had been subjected to harassment.

Meanwhile, the Supreme Court has not had an occasion to reconsider the constitutionality of the public release of campaign donor information more generally. Yet since the adoption of the first substantial federal campaign finance regulation in the 1970s, the internet has vastly multiplied the possible uses of such information.

Based on computer tools on third-party sites like the Huffington Post, it is possible to find out which of your friends, relatives, and neighbors gave how much money to which candidates in recent Presidential elections. In California, some gay rights organizations have publicized the names of businesses and their owners that either publicly endorsed or contributed money to support Proposition 8, which amended the state constitution to forbid same-sex marriage. The primary purpose of such publicity appears to be to enable supporters of legal same-sex marriage to boycott these businesses.

Even assuming that the Brown case remains no more than a limited exception to the general validity of laws mandating public disclosure of campaign donors, it is not clear whether the exception or the general principle should apply in the Doe #1 case. On one hand, the Washingtonians who sought to repeal SB 5688 comprised nearly half of the state's voters, hardly a small, unpopular group like the socialists involved in the Brown case.

On the other hand, in one respect, the argument for anonymity is even stronger in the Doe #1 case than in Brown. In Brown, as in all cases involving campaign finance disclosure, the government has an anti-corruption interest: By finding out who is bankrolling elected officials, the public can monitor those officials for signs of favoritism. By contrast, there is no clear anti-corruption purpose served by disclosing the names and addresses of everyone who signed a petition for a ballot initiative.

True, such disclosure could assist the state authorities in detecting fraudulent or otherwise invalid petition signatures as a form of "crowd sourcing." But there is no indication that disclosure would have served this purpose in Doe #1, whereas it is plausible to think that disclosure of the supporters of the petition would have facilitated harassment of at least some such supporters.

Nor is it even clear that pamphleteering or making campaign contributions is the best analogy to signing a petition for a referendum. Perhaps a closer analogy is voting. All U.S. states now use the secret ballot for just about every public election—principally on the ground that secrecy protects voters and the public against coercion and bribery.

But, of course, widespread or even universal adoption of a practice does not necessarily render that practice constitutionally obligatory. Early votes were not cast anonymously, and if the Court were to say that the First Amendment requires the secret ballot, then that ruling could cast doubt on other electoral systems that use various forms of public voting.

Consider the proposed Employee Free Choice Act, which would permit certification of a union as the representative of workers in a bargaining unit without a secret ballot (although a secret ballot could still be used). Is the proposed Act unconstitutional? And what about corporate governance laws, and other laws that permit or require people to cast their votes or otherwise state their opinions without the protection of anonymity. Are they also unconstitutional?

Perhaps the most dramatic denial of anonymity is that effected by the Sixth Amendment, which—except in extraordinarily rare circumstances—requires crime victims to testify in open court in the face of those who wronged them. A Supreme Court ruling that any reasonable fear of intimidation or harassment triggers a right to anonymity could thus have far-reaching consequences.

A Hard Constitutional Question, but an Easy Policy Question

I do not raise the foregoing examples because I think they conclusively show that there is no First Amendment right to sign a petition for a referendum without having one's identity disclosed to the public. Whether there is such a right appears to be an open question. But given that there are legitimate concerns about the democratic process on each side of that question, the best answer may be to let the democratic process itself resolve them. In the Doe #1 case, that would mean affirming the Ninth Circuit and denying the claimed constitutional right.

Yet to say that there may be no constitutional right to sign a petition anonymously is not to say that Washington should willy-nilly release the names and addresses of over a hundred thousand people who signed the petition seeking a referendum on SB 5688. The public interest in knowing these details is minimal, while the danger of harassment is real, if not in this particular case, then perhaps with respect to future issues. More broadly, a regime of public disclosure of petition signers could have a powerful chilling effect on political participation by people holding unpopular views.

In the end, signing a petition for a ballot initiative looks very much like voting on such an initiative. And American states have reached the unanimous conclusion that the best way to run elections is with secret ballots. Likewise, even if it is not constitutionally required, the best way to run large petition drives will typically be by providing some substantial anonymity for signers. Thus, Washington would do well to construe or amend its Public Records Act to protect the anonymity of the Doe plaintiffs. The shield that Washington's conservatives seek today could prove invaluable for progressive causes—including marriage equality—tomorrow.

Michael C. Dorf, a FindLaw columnist is the Robert S. Stevens Professor of Law at Cornell University. He is the author of No Litmus Test: Law Versus Politics in the Twenty-First Century and he blogs at michaeldorf.org.

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