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Another amicus effort — and this is a BIG one!

April 7, 2010

One of the more interesting cases to get to the Supreme Court in recent years — at least from a media perspective — has to be John Doe  # 1 v. Reed.  Many of you are familiar with the case. Those of you who are not are familiar with the issue, or may become very familiar with the issue in coming years, especially if the Court rules against our side.

The case originated in the state of Washington.  In May 2009, the Governor signed into law a bill commonly known as the “Everything but Marriage Act”, which expands the rights and responsibilities of state-registered, same-sex domestic partners.    Almost immediately, an organization known as “Protect Marriage Washington” filed notice of an intention to circulate a referendum petition in accordance with state law.  In July 2009, such a referendum petition was submitted with almost 140,000 signatures, though the state contended that only 122,000 signatures — still more than required to place the measure on the next election day ballot — were valid.   The effort failed on election day and the law remains in force.

Protect Marriage Washington filed suit in federal court to prevent disclosure of this public record, arguing that signers would be subjected to undue harassment and, potentially, harm.   The United States District Court agreed and issued an injunction preventing release of these lists.  The United States Court of Appeals for the Ninth Circuit reversed.  But then the Supreme Court issued a temporary injunction against release of these records, pending its final review and decision.

As with any open records case that gets the Supreme Court, this merits our attention and likely participation.  My only worry is that we tread a very narrow path here. While our members across the country clearly have an interest in the open records issue because any result will almost certainly affect similar situations – whether related to the gay marriage issue or referenda generally – that are certain to arise in every state,  likely legal arguments from the other side will rest on First Amendment grounds that we’d otherwise support wholeheartedly – the right to free association in a group without fear of government retribution.   I think this case could potentially affect Capitolbeat members more than just about any we’ve seen in recent years.  It certainly meets the standards we’ve agreed upon for joining an amicus brief.

Equally rapidly filed were the public records requests seeking copies of the referendum petition under Washington’s Public Records Act (“WPRA”).  Finding that none of the exemptions in the WPRA applied to this document, the Washington Secretary of State prepared to release it to the public.    Fearing harassment from the legislation’s supporters, the Plaintiffs (referred to herein as “Petitioners”) filed suit in United States District Court to enjoin the referendum’s release, alleging that release of the documents would violate the signers’ First Amendment rights to free association and anonymous speech.

The United States District Court agreed and issued an injunction preventing release of these lists.  The United States Court of Appeals for the Ninth Circuit reversed.  But then the Supreme Court issued a temporary injunction against release of these records, pending its final review and decision.

Capitolbeat was invited to join two separate briefs in this this case, both of which supported the state’s right — nay, obligation — to disclose this petition under the WPRA.  The Board discussed the issue after a summary of the case and recommendations from legal counsel and we eventually joined a brief filed by a Seattle-based law firm.  A copy of that brief can be found here, but I’m happy to provide you with a summary of our main arguments.

Our main concern to the Court  is that  the Petitioners are seeking to do something which has never been done by any court,  at any level:  declare that a Public Records Act violates the First Amendment rights of an individual who is named in an otherwise disclosable record.   We don’t believe the Washington Public Records Act implicates the First Amendment at all — certainly not in the way that Petitioners allege it does.  There is no compelled speech at issue.  The law is an administrative requirement imposed on government agencies.  Taken to its outer limit, this argument jeopardizes the existence of similar statutes in all 50 states and the federal FOIA.

The second argument is that there is no First Amendment right to anonymity or privacy in the state referendum process.  Our brief  explains that the referendum is not political activity of the same ilk as a public protestor; it is purely and simply legislative action which must be undertaken in the light of day.  There should be no expectation of privacy in such a legislative process.

The anonymous  leafletting and right to association cases that are the basis of Petitioners’ First  Amendment claims are distinguishable because they involve situations where the leafletter or organization member was seeking to be free from government intrusion, while the participants here are actively participating in government activities.

But, more important to refuting the privacy claims, the entire referendum process happens in public. There is no promise of confidentiality, nor is there any possibility of confidentiality,  given the ability of  many people to see other signatories’ names.  The brief engages in a thorough recitation of the historically open nature of referenda across the United States.

Finally, the brief notes that disclosure of referendum petitions does not violate the First Amendment. This is where the brief discusses the proper level of First Amendment “scrutiny” to be applied by the Court in this type of case.   Petitioners advocated strict scrutiny because the disclosure requirement is “content based”.  Most regulations are struck down when strict scrutiny is applied. But,  even applying strict scrutiny in this case, the Public Records Act should be upheld because there is a more compelling interest in access to government records and assuring transparency in government.  To accept Petitioners’ argument would result in constitutional challenges to public records requests whenever a record happens to mention an individual.  While Petitioners argue that “time, experience and studies have revealed the true costs inflicted by disclosure”, this brief argues that time and experience demonstrate the useful role of disclosure and open government.  It also cites the First Amendment right to receive information, which can only occur with strong public records laws. This section cites to the use of public records acts to uncover and report on issues of extreme importance.

We’ll let you know when a decision is issued in this case or any others in which Capitolbeat participates.  In the meantime, feel free to contact the Board or your legal counsel if you have thoughts about any of our public policy or advocacy efforts or know if a case that you think merits Capitolbeat participation.  Remember that we have certain standards that govern our participation, but we are looking to speak out as much as possible so that Capitolbeat remains a national voice on important free speech issues affecting our membership.

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