Even more than the other major opinion released by the Supreme Court yesterday, the outcome of Doe v. Reed was no surprise to anyone who witnessed the oral argument. At issue was whether Washington state is within its rights to disclose the signatories of petitions for a ballot initiative, in this case the names of individuals who petitioned to repeal the state's everything-but-marriage gay-rights law. The Court held by an 8 to 1 majority that the signatories of the petition did not have a constitutional right to anonymity.
The argument made by the anti-same-sex-marriage group -- that the First Amendment requires that the signatures be kept private -- was, to put it mildly, not very convincing. The argument is reminiscent of Sarah Palin's, er, innovative contention that the First Amendment should protect her from any criticism. But as Antonin Scalia noted in his concurring opinion, "harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance." When one considers the fact that under Washington state law citizens who sign petitions are in effect acting as legislators, the idea that they have a constitutional right to anonymity is especially hard to justify.
However, in another example of Chief Justice Roberts' legendary ability to foster consensus on the Court, eight of the nine justices issued separate opinions. Among those who agreed that the law was valid, the key division was between Scalia and (to a lesser extent) Stevens, who argued that the law did not burden speech at all; the rest of the majority argued that the law did burden speech but that the burden was justified by the state's interest in a fair, transparent ballot-initiative process.
Roberts' opinion for the Court left open the possibility that the anti-gay group could prove that in its specific case, the disclosure requirement was unduly burdensome. While I tend to be skeptical of such "minimalist" moves, in this case there may be some justification for it. While this was, in Stevens' words, "not a hard case," it's possible to imagine circumstances wherein balancing the relevant interests would be harder. Thomas' dissent relied heavily on a couple of Jim Crow-era freedom-of-association cases, and in those cases mere disclosure really did have an unacceptably chilling effect on political speech and action. However, that was an unusual context -- obviously, the rules of ordinary politics do not apply in authoritarian states where a disenfranchised minority is subject to state-sanctioned terror for ordinary political activity. In most circumstances, the disclosure requirement is obviously consistent with First Amendment principles.
-- Scott Lemieux
