That Washington

Justice Scalia Critical of R-71 Anonymity

By Josh Feit April 28, 2010



SCOTUS Blog has a report on today's R-71 hearing in the U.S. Supreme Court where GOP Washington State Attorney General Rob Mckenna argued that an anti-gay rights petition could not keep signatures anonymous.

It looks like another Republican, Justice Anton Scalia (also seconding the argument made by the NYT editorial page on Saturday) agreed:


Declaring that the rough-and-tumble of democracy is not for the faint-hearted, what Scalia referred to as the “touchy, feely” sensitivity of some political activists, the Justice said “you can’t run a democracy” with political activity behind a First Amendment shroud.  “You are asking us to enter into a whole new field,” Scalia told James Bopp Jr., the lawyer for Washington State signers of an anti-gay rights petition.  Politics, the Justice went on, “takes a certain amount of civic courage.  The First Amendment does not protect you from civic discourse — or even from nasty phone calls.”

“A petition-signer,” he said, “is taking part in the legislative process.”  He suggested that there was no court case holding that the First Amendment shields “activity that consists of the process of legislation.”  In fact, Scalia said, “for the first century of our existence” even casting a ballot was done in public, and ballots were of different colors so everyone could know how an individual had voted in a given contest.
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