Posted by Eugene Volokh:
Gay Rights Group Planning to Publicly Out Signers of Referendum Petition:
http://volokh.com/archives/archive_2009_06_14-2009_06_20.shtml#1245174890
The [1]Spokane Spokesman reports:
Petitions were being printed Tuesday for Referendum 71, which asks
Washington voters to overturn a new law granting same-sex domestic
partners many of the rights of spouses.
But those who sign the petitions may be in for a surprise. Some
R-71 opponents have put up a Web site -� [2]www.whosigned.org -�
where they intend to post the names of all the required 120,577
signers.
Washington law apparently makes the names of petition signers publicly
available, and if that's so then those who disagree with the petition
certainly have a First Amendment right to publicize those names. To be
sure, such public identification of people's political actions can
deter people from exercising their political rights, and might even be
intended to have that effect. (But the use of speech to pressure
people through threat of social ostracism is [3]constitutionally
protected. And this is so even if the speech may have the effect of
stimulating illegal discrimination against people -- Washington law
[4]prohibits employers from discriminating against employees based on
their political activities -- and conceivably even violence.
(The site organizers are quoted as saying that �We think that it will
help neighbors talk to each other,� and [5]the site also says that the
publicity can help people verify the accuracy of the petitions. But
I'm pretty sure that these won't be the main effects of the site's
operation, and I suspect that they weren't the sole reasons for the
site to be put up.)
Yet the rise in such outing tactics -- especially now that people can
use the Internet to easily turn formally public records that are
practically inaccessible into records that are truly available to
everyone in seconds -- raises the question of just what records the
government should make public, especially in unrestricted ways. Even
if the government wants to let challengers check the validity of
petition signatures, it can do so in ways that reveal less
information, for instance by revealing only small but statistically
valid samples, or (possibly) by requiring people who access the
information to promise not to redistribute it (see, e.g., [6]Seattle
Times Co. v. Rhinehart, upholding such a protective order as to
information released for purposes of litigation).
So my questions: Should referendum, initiative, recall, and candidate
nomination signatures be treated more like voters' ballots, which are
expected to be kept secret? Or should they be treated more like
legislators' votes for proposed bills, which are expected to be made
public? For that matter, how should we treat other political
information, such as voters' party registration and the record of
people's large campaign contributions, which is generally made public
now? And what should be our ethical judgment about people's
publicizing others' low-level political activity of this sort?
References
1.
http://www.spokesman.com/stories/2009/jun/03/group-will-publish-names-of-partner-rights/
2. http://www.whosigned.org/
3.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=458&invol=886
4. http://apps.leg.wa.gov/rcw/default.aspx?cite=42.17.680
5. http://www.whosigned.org/
6. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=467&invol=20
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