Congress Shall Make No Law...
8:40 PM
Doe ruling isn’t all “D’oh!”

Today, the U.S. Supreme Court released its opinion in Doe v. Reed, a case that asked whether thesupremecourt First Amendment prohibited Washington State from ever disclosing the names and addresses of those who signed a petition to get an issue on the ballot.  In an 8-1 decision, the Court ruled against that broad challenge while reserving judgment on whether the petitioners in the case—who had signed a petition that sought the repeal of a bill that expanded same-sex partnership rights—were entitled to an as-applied exemption from the disclosure requirements on the grounds that they were potentially subject to threats and harassment.


The Institute for Justice had filed a friend of the court brief in Doe v. Reed where it argued that mandatory disclosure laws implicate First Amendment concerns.  That brief relied heavily on IJ’s 2007 report entitled Disclosure Costs, which was the first attempt by anyone to document the profound chilling effect of mandatory disclosure laws.


States obviously have the right to regulate the time, place and manner of their elections, and the Court’s opinion focused on the narrow issue of whether mandatory disclosure laws help states prevent fraud and mistakes in the petition-verification process.  But some Justices had some harsh words for Washington state’s so-called “informational” interest—the idea that mandatory disclosure laws are justified because they help satisfy people’s general desire to know who supported or opposed an issue.


Justice Alito, for instance, said in his concurrence that


The implications of accepting [the state’s] argument are breathtaking.  Were we to accept respondents’ asserted information interest, the State would be free to require petition signers to disclose all kinds of demographic information, including the signer’s race, religion, political affiliation, sexual orientation, ethnic background, and interest-group memberships.  Requiring such disclosures, however, runs headfirst into a half century of our case law, which firmly establishes that individuals have a right to privacy of belief and association.


And, in dissent, Justice Thomas argued that “[p]eople are intelligent enough to evaluate the merits of a referendum without knowing who supported it.”


In the end, today’s ruling answered a single narrow question:  Whether a state may constitutionally disclose the identity of those who sign a referendum petition.  Although Doe resolves this issue, the larger topic of whether states may require everyone to “name names” in order to speak out about a ballot issue remains an open one.  And it is an area where the Institute for Justice has fought and will continue to fight on behalf of all Americans’ First Amendment rights.