On June 24, 2010, the U.S. Supreme Court decided Doe v. Reed, ruling 8-1 that public disclosure of ballot referendum signatures does not, as a general matter, violate the First Amendment.
For news organizations, the opinion is most significant for what it does not say. The court turned a deaf ear to the Doe plaintiffs’ broad arguments that strict constitutional scrutiny is required whenever disclosure of individual identifying information is sought under a public records law. Although the decision allows for “as applied” constitutional challenges, that holding is limited to requests seeking the identity of referendum signers, and the opinion seems unlikely to have any impact on other types of public records requests. Davis Wright Tremaine submitted an amicus brief to the Court on behalf of numerous news organizations.
Doe concerned “R-71,” a Washington ballot referendum seeking to overturn the state’s domestic partnership statute. After the measure qualified for the November 2009 ballot, the state received multiple public records requests for the petitions. State officials determined that the petitions were subject to disclosure under Washington’s Public Records Act (“PRA”).
In response, the organization that sponsored the referendum, and two of the over 138,500 voters who signed the petitions, brought suit in federal court, claiming that release of petition signers’ identifying information would violate the First Amendment. The trial court barred release, but the Ninth Circuit reversed and held that the records were subject to disclosure under the PRA.
In its decision last week, the Supreme Court rejected the plaintiff’s facial challenge – that is, the claim that release of referendum signatures in any context violated the signer’s First Amendment rights of association – but held that disclosure may be unconstitutional in some circumstances.
Seven justices joined the lead opinion by Chief Justice Roberts, which holds that “disclosure of referendum petitions … does not as a general matter violate the First Amendment.” The Court found that the state’s asserted interest in “preserving the integrity of the electoral process by combating fraud, detecting invalid signatures, and fostering government transparency and accountability” sufficed to overcome the plaintiff's argument that the PRA was facially unconstitutional. The majority found it unnecessary to address the state’s other asserted interest in providing information to the electorate about who supports the petition.
However, the majority held that disclosure of referendum signatures “is subject to review under the First Amendment” and may be unconstitutional if those resisting disclosure show “a reasonable probability that the compelled disclosure [of personal information] will subject them to threats, harassment, or reprisals from either Government officials or private parties.” The litigation over disclosure of the R-71 signatures thus will continue, with the plaintiffs attempting to prove that such a “reasonable probability” of harassment exists.
The majority construed the issue before it as a narrow one. Most significantly, the ruling that an as-applied First Amendment challenge could proceed is rooted in concerns over the political process. Nothing in the decision suggests that such challenges would be allowed with respect to public records requests outside the electoral context. Moreover, the Court did not address the Doe plaintiffs’ more general arguments regarding public disclosure of individual information. The plaintiffs had argued, for example, that strict constitutional scrutiny is required any time personal information is disclosed and suggested that open government principles must be reconsidered because technology makes information too accessible.
The decision does not resolve the precise showing plaintiffs would need to make in order to block disclosure of signatures on First Amendment grounds. Justice Roberts’ opinion suggests that nondisclosure should be the exception: “There is no reason to assume that any burdens imposed by disclosure of typical referendum petitions would be remotely like the burdens plaintiffs fear in this case.” In a concurring opinion, however, Justice Alito stated his belief that the R-71 plaintiffs have a “strong argument” that they would be subject to harassment if the petitions were disclosed. On the other hand, Justices Sotomayor, Ginsburg and Stevens suggested that plaintiffs faced a “heavy burden,” and that evidence of any threats of harassment would have to be direct and significant.
Justice Scalia concurred separately, finding that the plaintiffs have no First Amendment claim whatsoever. In his view, “harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.”
Justice Thomas dissented, and would have accepted the plaintiffs’ facial challenge.
As a result of the multiple Doe opinions, future public records requests for ballot measure petitions may well result in litigation, and a case-by-case determination as to whether disclosure would subject signers to threats and harassment (except in California, where disclosure is barred by statute). Outside this narrow context, Doe poses no threat to public records access generally.