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May 1st, 2010

Anonymous Speech for Pro-Family Activist?

SUPREME-COURT1Written by Nathan Tucker

On Thursday, the Supreme Court heard oral arguments on whether gay marriage activists can use a state’s freedom of information act to compel disclosure of the names and addresses of those who signed a petition to overturn the state’s domestic partnership law.

The state of Washington allows voters to veto acts of the legislature at the ballot box if they obtain a sufficient number of signatures to place the question before the voters. Using this process, a pro-family group called Protect Marriage Washington (PMW) collected 122,000 signatures to force a statewide vote on whether Washington’s new domestic partnership law should be repealed.

In order to prevent a vote on the question, gay marriage activists attempted to have the courts throw the referendum off the ballot. That effort failed, and the veto referendum went before the voters last November, where it was rejected 53-47 percent.

Gay rights groups such as KnowThyNeighbor.org and WhoSigned.org also sought release of the signed petition forms that had triggered the referendum process. When the Washington Secretary of State’s office announced that it would grant the freedom of information act request, PMW filed suit in federal court to stop the disclosure and won a temporary restraining order from the trial judge. On appeal, the injunction was overruled by the 9th Circuit but later reinstated by the Supreme Court when it agreed to hear the case.

A petition, unlike ordinary political speech, compels the government to do something (in this case, place an issue on the ballot) that it otherwise would not have done. During oral argument, Washington’s Attorney General tried to use this distinction to argue that signing a petition is not speech protected under the 1st Amendment, but rather a part of the legislative process.

The problem with this argument is that all petitions force the government to place an issue or, more commonly, a political candidate’s name on the ballot. To hold that all such advocacy is unprotected would have a chilling effect on the political process.

But why stop with petitions, since the act of voting itself compels the government to do something—whether it is repealing its laws or swearing in a new official? If signing a petition is not constitutionally protected free speech, than neither is the act of voting.

Rejecting Washington’s argument, both the trial court and the 9th Circuit recognized, in keeping with Supreme Court case law, that signing a petition is political speech. They differed, however, in how much protection such political speech is entitled to when it is weighed against the public’s “right to know.”

PMW argued that the signers of the petition had a right to remain anonymous due to the real prospect of intimidation by gay marriage activists. Both KnowThyNeighbor.org and WhoSigned.org stated publicly that they intended to place the name and addresses of signers on the internet to encourage “uncomfortable conversations.”

A local blogger had written that, if the leader of PMW “can do ‘legal’ things that harm OUR family, why can’t we go to Arlington, WA to harm his family?” Boycotts were even threatened: “We shall boycott the businesses of EVERYONE who signs your odious, bigoted petition.”

Several justices, in their questioning of counsel at oral argument, seemed to indicate a willingness to allow disclosure unless groups could show a “reasonable probability that [it would] subject them to threats, harassment, or reprisals.”

But the Court should go even further and rule that individuals have the absolute right to anonymous speech under the First Amendment. The historic record illustrates the commonplace usage by our Founders of such pseudonyms as “Publius” and “Cato.” They understood and cherished the important role of anonymous speech in our public debates and would not have approved placing the burden on a speaker to preserve his anonymity.

The right to anonymity is essential to the preservation of political speech, and the Court should take this opportunity to affirm its sanctity.

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at nathanwt@juno.com.




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