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Commentary

Can Anti-Gay Marriage Petitioners Keep Their Identities Private?

By Marjorie Heins

A big First Amendment battle is brewing between citizens who have signed petitions opposing the right of gays and lesbians to marry, and who want to keep their identities secret, and gay rights activists who want to make their identities known. In October 2009, the Supreme Court ordered the State of Washington not to comply with a public records request for the signatures on petitions for a referendum on whether to keep or repeal the state's new "everything-but-marriage" domestic partnership law.

Protect Marriage Washington, an anti-gay-rights group, had collected nearly 138,000 signatures on petitions to hold the state referendum, which goes to a vote on election day 2009. Under state law, the petitions are public records. But the group went to court seeking an injunction to stop the release of the names. They argued that making the identities of the petition-signers public would subject them to harassment and intimidation.

A federal district court agreed with them, and blocked the release of the names; the U.S. Court of Appeals for the Ninth Circuit reversed. On October 20, the Supreme Court reversed the Court of Appeals and reinstated the injunction, pending a decision on whether or not to grant a full-dress review of the case.1

Origins of the First Amendment Right to Privacy

Protect Marriage Washington is relying on a line of First Amendment cases that begins in the 1950s, at the height of violent resistance to the civil rights movement in the Deep South. In 1955, the African American citizens of Montgomery, Alabama staged a nearly year-long and ultimately successful boycott to end segregation in the city's public buses. Frustrated by the success of the Montgomery Bus Boycott, the Alabama Attorney General filed a lawsuit to stop the NAACP from operating in the state. The Attorney General’s argument was that the NAACP had not complied with a law that required corporations to file certain paperwork before “doing business” in Alabama. The NAACP did not think it was covered by the law, but a local judge disagreed, and ordered the organization not only to stop its activities, but to produce a variety of records, including its membership lists.

The NAACP resisted. It argued that, given the the hostility of the state government and much of the white population to its objectives, revealing its members’ identities would subject them to intimidation, harassment, loss of employment, and violent attacks. It was in essence a claim of a right to privacy in one’s political associations. The Supreme Court eventually agreed. In a 1958 decision, the Court explained that “compelled disclosure of affiliation” with groups that advocate for unpopular causes can be an effective way of intimidating and silencing the groups’ members: “Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”2

Two years later, the Court followed this precedent to invalidate two Arkansas ordinances requiring that state’s NAACP branch disclose membership and contributors’ lists. The ordinances had been passed after President Eisenhower sent federal troops to the City of Little Rock to protect black schoolchildren from violent racist mobs. The Supreme Court reversed the criminal conviction of Daisy Bates, head of the Arkansas NAACP, for violating the Little Rock ordinance.3

A third case from the civil rights movement focused on whether there is a First Amendment a right to speak anonymously. In 1960, the Supreme Court struck down a Los Angeles law that prohibited anonymous handbills. An activist had been arrested for distributing leaflets urging a boycott against merchants who carried products of “manufacturers who will not offer equal employment opportunities to Negroes, Mexicans, and Orientals.” Invalidating the law, the Court explained that

anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all.4

But in this case, the Court did not require any particular showing that the leafleter faced violence or other retaliation if his identity were revealed. Nor did the Court say when the assumed right to speak anonymously would have to give way to social interests that pull toward openness and disclosure - for example, when an anonymous leafleter libels another individual (fast forward to 2009 and read "blogger" instead of leafleter), or when campaign finance law requires disclosure of who is financing certain candidates or paying for certain pre-election messages.

Balancing First Amendment Privacy Against the Public Interest in Disclosure

Campaign finance is in fact one of the most important arenas where openness and transparency ordinarily trump claims of associational privacy. Money talks, and in U.S. elections, it talks at very high volume. The consequence is not only that the richest candidates, and their financial backers, can drown out the opposition, but that elected leaders can be so beholden to their big contributors that their integrity, and that of the entire democratic process, will be impaired. In the 1976 case of Buckley v. Valeo, the Supreme Court was confronted with a First Amendment challenge to a federal law that attempted to address these problems.        

The Court struck down parts of the law that limited campaign expenditures; but it upheld disclosure provisions that were intended at least to put the public on notice of where the expenditures were coming from. Referencing the civil rights era cases, the Court acknowledged that “compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment”; thus, disclosure requirements “must survive exacting scrutiny.” The requirements were justified, the Court said, because information about the sources of campaign money helps voters evaluate candidates; and because disclosure deters corruption “by exposing large contributions and expenditures to the light of publicity.”5       

But the Court also said that minor parties and independent candidates might get an exemption from the law if they could show that disclosure would lead to harassment and reprisals. The Court made good on its promise a few years later when it ruled that the disclosure provisions of a state campaign expense reporting law could not be constitutionally applied to the Socialist Workers Party because the party had historically been the target of harassment by both government officials and freelance Red-baiters.6         

Then in 1995, the Supreme Court extended its First Amendment protection for anonymous leafleting to the field of elections. Margaret McIntyre, an Ohio citizen, had circulated an anonymous leaflet to protest a tax proposal that was to be on the ballot in her town’s next election. State law prohibited anonymous campaign literature. The Supreme Court found that Ms. McIntyre’s right to anonymity outweighed whatever benefit the state could claim from disclosure.        

Justice John Paul Stevens, writing for the Court, explained that a person's decision to speak anonymously "may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible," and that there is “a respected tradition of anonymity in the advocacy of political causes, ... perhaps best exemplified by the secret ballot, the hard-won right to vote one's conscience without fear of retaliation."7

Justice Antonin Scalia dissented in McIntyre's case. Scalia thought that the principle of campaign finance law should govern: “protection of the election process justifies limitations upon speech that cannot constitutionally be imposed generally.” Moreover, Scalia said, there was no evidence in the case that Ms. McIntyre faced any danger of retaliation or embarrassment should her identity be revealed; therefore, she should not be entitled to an exemption from an otherwise valid general election law.8         

Should the Foes of Gay Marriage Get an Exemption from Public Disclosure Laws?

The conflict between privacy and openness in the battle over gay rights is not limited to the State of Washington. In Maine, a group called the National Organization for Marriage filed suit two weeks before that state's referendum vote on gay marriage; they challenged a state law requiring that any individual or group that raises or spends more than $5,000 to influence a ballot question reveal the identities of those who have donated more than $100 towards the campaign. In arguing to keep the names private, the lawyer for the organization asserted that disclosure would be “’an invasion of their privacy and it certainly chills First Amendment activity.’”9

It is perhaps a measure of how far public opinion in the U.S. has progressed on the issue of equality for gays and lesbians that the signers of anti-gay-marriage petitions are able to make at least a credible claim that their viewpoint would be chilled by public exposure. But whether they are entitled to a privacy-based exemption from Maine's campaign finance law or Washington’s public records law, with its presumption of openness in government, is not such an easy question to answer.

On the one hand, they clearly do not face threats, harassment, or violence anywhere approaching the dangers faced by civil rights supporters in the Jim Crow south. On the other hand, at least one gay-rights group, KnowThyNeighbor.org, has said that it intends to post the names of petition signers on its website. (It has already posted the names of anti-gay petition signers in Arkansas, Florida, and Massachusetts.) The co-director of the group, Tom Lang, has said that "for social change to happen, there needs to be a shaming part."10

Lang said that discussion, not intimidation, is the goal of KnowThyNeighbor. But embarrassment and economic reprisal are certainly possibilities, so “outing” the signers could arguably chill their expression of political beliefs. Is this simply a foreseeable - even salutary - part of the democratic electoral process, or is the more important value to protect the privacy of the signers’ identities?

In the McIntyre case, the Court recognized a right to anonymity without requiring any showing of likely retaliation. But interestingly, Justice Stevens, the author of the McIntyre decision, was the sole dissenter from the Supreme Court's order blocking release of the names of the signers of Washington's anti-gay marriage petitions. The rest of the justices at least thought the argument for privacy was cogent enough to justify an injunction maintaining the status quo. Obviously, if the names were released before the Supreme Court decided whether or not to hear the case, the damage would have been done in terms of privacy.

On the other hand, by keeping the names secret, damage was done to the cause of openness and public information on the eve of a hotly contested election. Although not much can be read from the tea leaves of the Supreme Court's decision to reinstate the injunction, it's possibly a signal that the Court is ready to undo some of the disclosure requirements in campaign finance law as well.   

November 2, 2009

Update: On January 15, 2010, the Supreme Court granted certiorari. At oral argument on April 28, most of the justices seemed unperusaded of the need for anonymity, especially since the record before the Court was devoid of any evidence that petition-signers had been threatened. For an entertaining summary of the argument, see Dahlia Lithwick's article in Slate.

On June 24, in an 8-1 decision written by Chief Justice Roberts, the Court ruled that signers of election petitions have no general First Amendment right to keep their identities secret because there is a strong public inerest in disclosure and transparency, and any burden on the right to express political views is generally insignificant. The case was sent back to the lower courts to decide whether signers of petitions involving particularly controversial measures are entitled to anonymity.

Justice Alito wrote a concurrence expressing his views on this second question; he said signature gatherers must be able to obtain an exemption to the disclosure law well in advance, and "without clearing a high evidentiary hurdle." Under this lenient standard, he opined that the signers of the anti-gay marriage petition are entitled to anonymity.

By contrast, Justice Sotomayor, joined by Justices Ginsburg and Stevens, wrote a concurrence aruging that anyone challenging particular applications of the state’s disclosure rules should "bear a heavy burden" of proof, because "even when a referendum involves a particularly controversial subject and some petition signers fear harassment," the state's "important interests in 'protect[ing] the integrity and reliability of the initiative process' remain undiminished." Therefore, courts should be "deeply skeptical of any assertion that the Constitution, which embraces political transparency, compels States to conceal the identity of persons who seek to participate in lawmaking through a state-created referendum process."

The case attracted a large number of friend of the court briefs: 15 in support of the anti-gay petition signers; 10 in support of the freedom-of-information argument.

One of the latter briefs, filed by four political scientists who described themselves as "Direct Democracy Scholars," pointed out that “more than a million names of signers of petitions for referenda and initiatives opposing gay marriage have been posted on the Internet. Yet there is no evidence that any of these signers has faced any threat of retaliation or harassment by reason of that disclosure.”

For the Supreme Court decision, click here.

Notes

1. Doe, No. 1 v. Reed, S.Ct. No. 09A356 (Oct. 20, 2009).

2. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958).

3. Bates v. Little Rock, 361 U.S. 516 (1960).

4. Talley v. California, 362 U.S. 60, 64 (1960).

5. Buckley v. Valeo, 424 U.S. 1, 64-67 (1976).

6. Brown v. Socialist Workers '74 Campaign Committee, 459 U.S. 87 (1982).

7. McIntyre v. Ohio Elections Commission, 514 U.S. 334, 341-43 (1995).

8. Id., 514 U.S. at 378-79 (Scalia dissenting).

9. Abby Goodnough, “Setback for Group Fighting Gay Marriage in Maine,” New York Times, Oct. 30, 2009, A22.

10. Quoted in William Yardley, "Privacy Looms Over Gay Rights Vote," New York Times, Nov. 1, 2009, §1, 24.

 


The Free Expression Policy Project began in 2000 to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. The FEPP website is now hosted by the National Coalition Against Censorship. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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