Posted by Eugene Volokh:
Fedearl Judge Temporarily Restraints Release of Names of
Anti-Domestic-Partnership Petition Signers in Washington States:
http://volokh.com/archives/archive_2009_07_26-2009_08_01.shtml#1248984996
Today's order, in Doe v. Reed, No. 09-5456BHS (W.D. Wash. July 29,
2009), reads in relevant part:
Plaintiffs seek to enjoin Defendants from releasing copies of the
Referendum 71 petition to any third party. Specifically, Plaintiffs
seek to prevent Defendants from releasing the names, addresses, and
other contact information of individuals who signed the petition.
Plaintiffs contend that release of this petition would result in a
violation of Plaintiffs , and others' First Amendment rights....
To obtain preliminary injunctive relief, the moving party must
show: (1) a likelihood of success on the merits; (2) a likelihood
of irreparable harm to the moving party in the absence of
preliminary relief; (3) a balance of equities tips in the favor of
the moving party; and (4) that an injunction is in the public
interest.
Having considered Plaintiffs' motion, Defendants' failure to appear
or otherwise object to Plaintiffs' motion, and the remainder of the
record herein, the Court concludes as follows:
1. For purposes of deciding Plaintiffs' motion for a temporary
restraining order only, Plaintiffs have pled a colorable First
Amendment claim, and have sufficiently demonstrated a reasonable
likelihood of success on the merits.
2. Plaintiffs have demonstrated a reasonable likelihood of
irreparable harm if Defendants release the contact information of
those individuals who signed the Referendum 71 petition.
3. The balance of equities weighs in favor of Plaintiffs.
Defendants and interested third parties will not be unduly
prejudiced by delaying the release of this information until after
this matter has been fully briefed, should Defendants ultimately
prevail on Plaintiffs' motion for preliminary injunction.
4. A temporary restraining order is in the public interest.
Plaintiffs' complaint raises constitutional issues potentially
affecting over 100,000 voters....
The order lasts until Sept. 3, 2009, which is the date set for the
hearing on a longer-lasting preliminary injunction pending a full
decision on the merits. The plaintiff's constitutional argument --
which the court said has "a reasonable likelihood of success on the
merits," but which the court has not more expressly endorsed (since
this is just a temporary restraining order aimed at maintaining the
status quo pending a full hearing), is [1]here, and here is an
excerpt:
KnowThyNeighbor.org and WhoSigned.org[] have stated that they
intend to make the names of the 138,500 petition signers available
and searchable on the internet in an attempt to encourage
Washington citizens to have a personal and uncomfortable
conversation with any individual that has signed the petition.
Ironically, the creators of WhoSigned.org have exercised their
First Amendment right to remain anonymous, a choice the petition
signers cannot make because of the Public Records Act. A temporary
restraining order and preliminary injunction are necessary to
protect Plaintiffs from suffering immediate and irreparable
deprivations of their First Amendment liberties that will occur if
Defendants release copies of the petition pursuant to the Public
Records Act. As shall be set forth below and in Plaintiffs�
Verified Complaint, individuals whose names are already connected
with Referendum 71 have been subjected to threats, harassment, and
reprisals simply for exercising their First Amendment freedoms of
speech and association. If a temporary restraining order and
preliminary injunction are not issued, each of the 138,500
Washington residents who signed the Petition will suffer similar
deprivations of their First Amendment liberties.
For more on the subject, see [2]the prevailing lawyer's press release.
My thought: I think there are [3]plausible arguments that voter
signatures shouldn't be publicly released by the government. Just as
we have a secret ballot for the ultimate votes, we could have at least
a quasi-secret signature system for the signing of referendum,
initiative, recall, and candidate nomination petitions. It might not
be fully secret -- for instance, the government would know what you
signed, though it doesn't know how you voted, and it's possible that
the signatures would be briefly visible as other people are signing
the petitions (though that could be minimized, for instance if there's
just one signature per page, and each page is concealed after it's
signed). But there are good reasons why we might choose to make it as
close to a secret ballot as possible.
Yet I don't think that such a system is constitutionally mandated by
the First Amendment, just as I don't think that a secret ballot is
constitutionally mandated by the First Amendment. Signing a petition
is a legally significant act, and if the government chooses to
publicize the names of people who have taken such an act, I don't
think this abridges their freedom of speech even if the revelation
might indeed have a deterrent effect on some people. Not all
government action that deters people's exercise of their free speech
rights is unconstitutional, and in particular government speech
revealing signers' identities is not, I think, unconstitutional.
Even overt government condemnation of certain speakers is not a First
Amendment violation, though such condemnation might deter speakers.
The same is even more true, I think, of a simple release of over
100,000 names, though again I can't deny that there would be a
deterrent effect. The judgment about how secret signatures or even
ballots should be is a judgment that should be made legislatively (or
by voter initiative). The First Amendment and First Amendment caselaw
does not preclude either option.
References
1. http://volokh.com/files/ref71motion.pdf
2.
http://www.alliancealert.org/2009/07/30/tro-entered-to-prevent-wash-secretary-of-state-from-releasing-copies-of-ref-71-marriage-protection-petition/
3. http://www.volokh.com/posts/1245174890.shtml
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