Supreme Court Breakfast Table

Is There Even a First Amendment Issue in Doe v. Reed?
An email conversation about the news of the day.
June 25 2010 5:52 PM

Supreme Court Breakfast Table

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Dear Dahlia and Paul,

It seems to me that the shadow of the Tea Party hangs over the court's decision in Doe v. Reed, and that the issue of making law by anonymous petitions that trigger popular referenda is going to be with us for a while.

This case is not as lopsided as the 8-to-1 vote against the traditional-marriage advocates would suggest. It's true that only Justice Thomas agreed with the claim that it violates the First Amendment in every case for the state, under its public-records law, to release the names and addresses of people who sign petitions to put propositions on the ballot. Here the particular proposition was that the state's new and relatively liberal gay-partnership law should be repealed by referendum. The court leaves open the prospect that when this case goes back to the lower court, the marriage traditionalists may still be able to show that if their names and addresses are released, they will face harassment from some gay rights supporters that will have a chilling effect on their First Amendment rights. 

There is a fundamental question the court fails to explore in any depth: Does this case even raise a true First Amendment issue? It is important to begin by being precise about what is triggered by signing petitions for a referendum under the laws of the state. If enough citizens sign a petition challenging a law enacted by the state legislature, the operation of that law is immediately suspended and does not become operative again unless a majority in a statewide election votes to keep the law. So signing an official petition is a legislative act with official legislative consequences. 

Now, I agree that signing a petition is also clearly an act of expression. But the expressive part does not trigger a disclosure requirement. It is only when the citizen also wants his or her signature to be counted by the state as an official act for legislative purposes, such as suspending or canceling a law, that the public-records law requires identifying information to be revealed. To me, this is the key. The state does not prevent any citizen from expressing anonymously any idea he or she wishes to express. Nor does the state prevent citizens from withholding whatever identifying information (such as addresses and occupation) they wish to keep private when joining with other citizens in collective association or expression.  Only the official act of submitting a petition as part of the referendum lawmaking process triggers disclosure requirements. 

In supporting plaintiffs' arguments for anonymity, Justices Alito and Thomas cite the right to privacy of belief and association. But those rights are fully protected by the state except when the speakers wish not only to convey their views but also to have the act of signing become an operative part of the legislative process.

Surely a state can opt for an open legislative process. Otherwise, one of the hallmarks of American democracy—the town meeting—would be subject to attack as unconstitutional. Suppose a community decided not to have a referendum process but to provide instead for popular lawmaking by town meetings. The logic of some of the Doe v. Reed opinions would suggest that moving from a referendum to a town-meeting system would be unconstitutional because it would deprive people of this new First Amendment right to make law in secret. That can't be right.

It may well be the case, as Justice Thomas notes, that public disclosure of the names and addresses of referendum-petition signers will make successful resort to the referendum process less frequent and will thus reduce the total quantum of speech. But that argument seems to assume that there is some federal constitutional requirement that a state must have a referendum process. Yet states are free to have no process at all for lawmaking by referendum. None. Nor is there any First Amendment interest in frequent or successful referenda. States are free to have such processes only if an extraordinarily large number of signatures are obtained or only when a sufficient number of citizens are willing to stand up and be counted publicly in support of repeal or enactment of a law. These matters of preferred lawmaking process are for individual states to decide. The First Amendment has no dog in the fight over whether there should be more or fewer instances of popular lawmaking by referenda. 

It is also a bit troubling that there will now be a fact-bound, case-by-case process used to determine whether petition signers will be guaranteed anonymity. It would have been better in my view to have adopted either of the definitive positions put forth by Justice Thomas (always) or Justice Scalia (never) than to have this fact-bound approach. (For a view somewhat contrary to mine, see Rick Pildes very insightful posting on Balkinazation.)

The case-by-case determination of whether a petition process will be "open" or "secret" has to be made early, so that those soliciting signatures can inform the first signers whether their names may be disclosed. But what basis will a judge have for predicting before a petition process begins that signers will be harassed? Sometimes, as in Doe, there might be useful information from similar referenda battles in other states. But more often a judge will have little more than her sense of whether the group seeking anonymity is really an unpopular or marginalized group. That places the judiciary smack in the middle of a culture war in which various factions, now including not just the usual suspects, but also conservatives on college campuses, traditional-marriage supporters, Christians, and others, are given new incentives to present themselves as oppressed. Whatever the justice of these claims, the process of deciding who needs or deserves anonymity could take the judiciary down a road with a lot of big potholes. 

Might we expect more fireworks on Monday? With decisions coming on guns, gays, and Christians, how could we not?

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Walter Dellinger was head of the Office of Legal Counsel from 1993 to 1996.

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