Should signing a petition be a confidential act?

The Supreme Court has accepted a new case on to its docket, John Doe #1, et al., Petitioners v. Sam Reed, Washington Secretary of State, et al.:

The core con­sti­tu­tional issues in the case are whether sign­ing a bal­lot mea­sure peti­tion is a form of polit­i­cal speech, whether, if it is pro­tected by the First Amendment, it includes a right to sign with­out offi­cial pub­lic dis­clo­sure, what stan­dard is to be applied when judg­ing reg­u­la­tion of such a First Amendment right, and what gov­ern­ment inter­est sup­ports dis­clo­sure rather than con­fi­den­tial­ity for sign­ers’ identities.

via SCOTUSblog » Court to rule on petition-​​signers’ rights.

Opponents of gay mar­riage and sim­i­lar laws argue that the state should not release the names of those who sign peti­tions (such as those sup­port­ing their posi­tion), because doing so might make sign­ers tar­gets and thus sti­fle their sense of free­dom to freely express their opin­ions. (The argu­ment is, in essence, the core of why we have secret bal­lots in actual vot­ing.) Exposing sign­ers to poten­tial harass­ment for their views, then, would sti­fle their abil­ity express their polit­i­cal views by sign­ing peti­tions they support.

But is this really a free speech issue? That is, should anonymity of expres­sion be pro­tected as part and par­cel of the First Amendment? After all, we’ve seen a num­ber of instances where cor­po­ra­tions and gov­ern­ments have tried to force jour­nal­ists to reveal their anony­mous sources, and have even jailed jour­nal­ists who refuse. And many of us have wit­nessed or expe­ri­enced the de-​​anonymizing influ­ence of the mod­ern Internet, where every­thing posted online tends to become pub­lic. So how can sign­ing a peti­tion –usu­ally in a pub­lic place, often with wit­nesses — give you pro­tected anonymity? Is this even a Constitutional issue at all?

The Supreme Court has granted pro­tec­tions in the past to anony­mous com­mu­ni­ca­tions as part of First Amendment pro­tec­tions of free speech. For exam­ple, in In McIntyre v. Ohio Elections Commission, the Supreme Court struck down an Ohio law that pro­hib­ited the anony­mous dis­tri­b­u­tion of cam­paign lit­er­a­ture, writing:

Under our Constitution, anony­mous pam­phle­teer­ing is not a per­ni­cious, fraud­u­lent prac­tice, but an hon­or­able tra­di­tion of advo­cacy and of dis­sent. Anonymity is a shield from the tyranny of the major­ity. … It thus exem­pli­fies the pur­pose behind the Bill of Rights, and of the First Amendment in par­tic­u­lar: to pro­tect unpop­u­lar indi­vid­u­als from retal­i­a­tion — and their ideas from sup­pres­sion — at the hand of an intol­er­ant society.

First Amendment law can be com­pli­cated, and involves bal­anc­ing a num­ber of fac­tors. In addi­tion, there is a dif­fer­ence between gov­ern­ment involve­ment (in this case, Washington act­ing as a state to enable pub­li­ca­tion of names), pri­vate actions (your employer dis­cov­er­ing your anony­mous crit­i­cisms of the com­pany, and fir­ing you), and court involve­ment (sub­poe­nas, rul­ings that order jour­nal­ists to reveal sources in court, and so on).

Personally, I always assumed (with­out ever giv­ing it any deep thought or legal analy­sis) that my sig­na­ture on a bal­lot ini­tia­tive was a pub­lic record. After all, I’m sign­ing it in pub­lic, it needs to be ver­i­fied as legit­i­mate to count, I’m pro­vid­ing my name and address — it cer­tainly never felt anony­mous to me. That’s why I always insist on read­ing what I’m sign­ing, con­sid­er­ing the issues, and only sign­ing what I actu­ally agree with, instead of sign­ing just to make the petition-​​gatherer go away.

So my gut tells me that such sig­na­tures should be pub­lic, but only because I always assumed they were any­way. I’ll be curi­ous to see where the Supreme Court comes down on this, since the lower courts have gone both ways.

For more on this, see:

• U.S. Supreme Court could be next stop for R-​​71 from the Seattle P-​​I, quot­ing legal schol­ars giv­ing their opinions
• Ninth Circuit Overturns Preliminary Injunction Restraining Release of Names of Anti-​​Domestic-​​Partnership Petition Signers in Washington State at The Volokh Conspiracy
• The Ninth Circuit deci­sion that con­cluded that Washington could release the names of sign­ers in the inter­est of trans­parency and account­abil­ity, and that this was not a ques­tion of “anony­mous free speech” any­way, since sign­ing a peti­tion was not anony­mous at all.