LawNerd on R-71

By Advokat October 8, 2009

[Editor's Note: Another Nerd joins PubliCola's stable of nerds: LawNerd. He works for a serious downtown law firm, so he wants to remain anonymous. We'll just call him Advokat, yiddish for lawyer.

Today, Advokat weighs in on next week's big R-71 case in the U.S. Court of Appeals.

On October 14 the United States Court of Appeals for the Ninth Circuit will hear arguments on the State of Washington’s appeal of an injunction preventing the release of names and addresses of people who signed Referendum 71 petitions.  Referendum 71, which is on November’s ballot, seeks a vote to approve (or not) the “everything but marriage” bill passed by the legislature this past session.

Several people had requested from the State the names and addresses of the signatories under the State’s Public Records Act. The sponsor of the Referendum effort, Protect Marriage Washington, and two anonymous signers filed suit in federal court in Tacoma seeking to prevent the release of names and addresses.  US District Court Judge Benjamin Settle—a George W Bush appointee—agreed and issued an injunction.

Judge Settle based his ruling on two premises:  (1) the signers were engaged in political speech, which includes the right to anonymous political speech, and (2) the State’s compelling interest in preserving the on the integrity of the initiative and referendum process would not be served by releasing the signers’ names and addresses.

But Judge Settle missed two important steps in the analysis.  First, the real issue is not whether signing a referendum petition is political speech (the State does not argue that point) but whether signing a referendum petition is anonymous speech.  After all, as the State points out in its Ninth Circuit briefs, the initiative and referendum process is an open process where people sign on a sheet with twenty other people (who can see their names and addresses), signers are required by law to give both name and address, referendum proponents can use the names and addresses for their own purposes such as fundraising, and the State and opponents of the referendum are entitled to look at the names and addresses for verification purposes.  So is a referendum signer really engaging in anonymous speech?  Judge Settle did not address this issue at all, but the Ninth Circuit undoubtedly will.

Second, the few cases where the Court’s have protected anonymous speech involved situations with a reasonable probability that disclosure would lead to threats, harassment or reprisals. That has been found with respect to NAACP membership in Alabama in the 1960s and membership in the Social Workers Party. Again, Judge Settle did not address this issue with respect to the signers of the Referendum 71 petitions.

The case has broad implications.  It is the first case to prohibit disclosure under the State’s Public Records Act based on a constitutional argument (as opposed to application of one of the Act’s exemptions).  The broad disclosure mandate in the Act might be undermined.  Moreover, the case has the potential to undermine public accountability of the electoral process.  If the trial court is affirmed, it could set a precedent for donors to hot-button political campaigns to remain anonymous—hiding their identity behind broad claims of anonymous speech.

Interestingly, the attorneys representing Protect Marriage Washington are the same attorneys who argued (and lost) a case in California seeking to keep anonymous the identity of donors supporting Proposition 8 – the California Constitutional Amendment limiting marriage to a man and a woman.

Judge Settle’s decision may just reflect the old adage that bad facts make bad law.  Judge Settle likely felt discomfort about the tactic announced by one of the requesters for the disclosure of names, namely to post them on the internet to facilitate a “personal and uncomfortable conversation.” But on the law, the State has the stronger arguments.

Look for a report on the oral argument next week.
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