A free speech fight that was part of a recent battle in Washington State over a controversial civil union law will be heard by the Supreme Court Wednesday in a case that examines the breadth of “anonymous speech” protection.
The high court has often ruled that the sweeping reach of the First Amendment’s speech protection also covers the rights of people to speak under the cloak of anonymity..
Wednesday’s case presents the justices with the unique question of whether people who sign a petition forcing a state-wide referendum are entitled to keep their identities under wraps.
Last May, lawmakers in Olympia passed a law expanding the rights of same-sex partners. In response, a group called Protect Marriage Washington circulated a petition forcing the issue onto the November ballot. Washington, similar to other states, allows voters to overturn state laws by referendum.
The state requires a sufficient number of names on the referendum petition to place the matter before the voters. Protect Marriage Washington submitted more than 138,500 names to the Secretary of State who verified the petition and placed the issue on that November’s ballot.
During the petition gathering process, several groups supportive of the civil union measure announced their intentions to use a state open records law to obtain the petition list and publish those names on the internet. Referendum supporters expressed concern that the people who signed the petition could be subject to retributive attacks. They pointed to violence associated with the contentious fight over California’s Proposition 8 and went to court to stop the names from becoming public.
A trial court judge initially enjoined the state from releasing the names but the Ninth Circuit U.S Court of Appeals ruled the names should be made public. The lower courts disagreed over the level of First Amendment protection petition signers are entitled.
Referendum supporters argue an abridgement of their ability to remain anonymous violates “core political speech.” The groups seeking access to the names argue “there is no right, fundamental or otherwise, to secrecy in the legislative process.”
15 years ago the Supreme Court sided with an Ohio woman who anonymously distributed leaflets opposing a tax hike. In writing for the majority, Justice John Paul Stevens said, “when a law burdens core political speech, we apply ‘exacting scrutiny,’ and we uphold the restriction only if it is narrowly tailored to serve an overriding state interest.”
The most famous example of anonymous political speech in American speech is the collection of essays now known as the Federalist Papers. Many of those writings were published anonymously by Alexander Hamilton, James Madison and John Jay.
Coincidently, Wednesday’s case is the last one the justices have scheduled for its current term, thus making it likely that it will be the last one heard by Justice Stevens, who earlier this month announced his retirement effective when the Court begins its summer recess.
In taking the case, the high court stayed the Ninth Circuit’s disclosure order pending its ruling which is expected in a couple of months. As for the November referendum, Washington voters with a 53% majority decided to uphold the civil union law.