The First Amendment Prevails -- Sort Of.

June 24, 2010 9:44 AM

The Supreme Court has affirmed the Ninth Circuit Court of Appeals in Doe v. Reed (R-71 case) but don't celebrate yet. The Court rejected (.pdf format) the general claim that release of initiative petitions violates petition signer's First Amendment rights. But the Court's 8-1 ruling did not reach the petitioner's specific assertions that they will be harassed or harmed if their signatures are released in this case. That claim returns to the federal district judge who first issued the injunction against releasing names. Hence, the names of signers remain unrevealed at this time.
posted by bearwife (92 comments total)

Whoa. Doe v. Reed looks an awful lot like a different Supreme Court case on first glance.
posted by Babblesort at 9:46 AM on June 24, 2010 [5 favorites]

Or with a head cold.
posted by rokusan at 9:47 AM on June 24, 2010 [6 favorites]

So Thomas filed the dissenting opinion. How often does Thomas disagree with Scalia? (I ask because of the commonly held view of Thomas as a kind of Scalia echo.)
posted by oddman at 9:51 AM on June 24, 2010

So it's left to the lower courts to make the hard decisions that follow this ruling by implication. That's starting to look like a pattern with this court.

Tangentially: in another big court decision, the court ruled that Enron CEO Jeff Skilling could not be convicted under the federal "Honest Services" law. Conveniently, though, they left it up to the appeals courts to decide whether to overturn Skilling's conviction entirely on the basis of the ruling.
posted by saulgoodman at 9:53 AM on June 24, 2010

That seems reasonable. If the suit was brought against the Public Disclosure Act as a whole, it's entirely possible that there isn't enough of an evidentiary basis in the Supreme Court to deal with the specific situation.
posted by Lemurrhea at 9:56 AM on June 24, 2010

How often does Thomas disagree with Scalia?

Depending on how you count "disagreement" (that is, voting differently vs. voting the same but for different cited reasons), between a quarter and a sixth of cases. They're not the most aligned members in the recent Court, though -- Souter/Ginsberg and Roberts/Alito are usually closer.
posted by Etrigan at 9:59 AM on June 24, 2010 [1 favorite]

The Court rejected (.pdf format) the general claim that release of initiative petitions violates petition signer's First Amendment rights.

But did they not disagree with the statement to the contrary that previous alterations rejected prior non-assumptions?
posted by DU at 10:02 AM on June 24, 2010 [1 favorite]

But did they not disagree with the statement to the contrary that previous alterations rejected prior non-assumptions?

I honestly can't tell whether this is intended as a parody or actually means something in legalese.
posted by Spacelegoman at 10:05 AM on June 24, 2010 [14 favorites]

How often does Thomas disagree with Scalia? (I ask because of the commonly held view of Thomas as a kind of Scalia echo.)

The idea that Thomas parrots Scalia is a canard. Off the top of my head, they took different positions in the important terrorism case Hamdi v. Rumsfeld. Scalia and Stevens had one dissent; Thomas had another. But they took dramatically different positions despite both being technically dissents. The opinion of the court took a middle ground; Scalia dissented on one side (more restrictive of executive power), and Thomas dissented on the opposite side (maximal executive power).

Also, in the recent case of Dolan v. US, as this Volokh blog post notes, the majority consisted entirely of the 5 most junior justices (with Roberts not counting as one of them since he's Chief Justice): Thomas, Ginsburg, Breyer, Alito, and Sotomayor. This was the first time Thomas ever assigned an opinion, i.e. decided who wrote it (he assigned it to Breyer). Since the most senior justice in the majority assigns the opinion, this was impossible until Sotomayor joined the court.

I don't have statistics on how often the different judges agree/disagree with each other but would be interested in seeing them. I'm pretty sure the most common result is a unanimous decision.
posted by Jaltcoh at 10:12 AM on June 24, 2010 [1 favorite]

Supreme Court Statistics
posted by Blake at 10:16 AM on June 24, 2010 [1 favorite]

Could someone please put this in plain English or give a short summary what this is about? Sentences like:

Determining that the PRA burdened core political speech, the District Court held that plaintiffs were likely to succeed on the merits of Count I and granted a preliminary injunction preventing release of the signatory information. Reviewing only Count I, the Ninth Circuit held that plaintiffs were unlikely to succeed on their claim that the PRA is unconstitutional as applied to referendum petitions in general, and therefore reversed.

make my head hurt.
posted by PontifexPrimus at 10:17 AM on June 24, 2010 [2 favorites]

Holy cow, but that Olympian blogpost is impossible to make sense of. For example:

The United States Supreme Court ruled today in favor of Secretary of State Sam Reed in refusing to bar the disclosure of names of voters that signed the Referendum 71 petitions last year. R-71 asked voters whether to uphold the Legislature's the expansion of the state's domestic partnership law to include all the state rights of marriage without recognizing marriages.

The hell?
posted by notyou at 10:19 AM on June 24, 2010

Here is hoping that the rule of law will prevail, at long last. The R-71 bigots should have never received special dispensation to hide their names in the first place.
posted by Blazecock Pileon at 10:21 AM on June 24, 2010 [2 favorites]

The United States Supreme Court ruled today in favor of Secretary of State Sam Reed in refusing to bar the disclosure of names of voters that signed the Referendum 71 petitions last year.

If a 3rd-grader turned in a paper containing this sentence, it would be returned covered in red pen. Why do lawyers seem to have carte blanche for writing confusing and grammatically-awkward text?
posted by schmod at 10:22 AM on June 24, 2010 [3 favorites]

What's so hard to understand about that excerpt?

"refusing to bar" == "allowing"

Once you get that out of the way, the rest of it seems pretty straightforward to me.
posted by kmz at 10:24 AM on June 24, 2010

Another thing is that agreeing with Scalia is not the same thing as parroting Scalia. A justice can echo another by signing onto their opinion. Do Scalia and Thomas usually agree? Of course, but they sometimes write separate opinions to express their own views. For instance, here are Scalia's partial dissent and Thomas's partial dissent in Grutter, an important 2003 case on affirmative action in academic admissions. Thomas's opinion is much more elaborate.
posted by Jaltcoh at 10:25 AM on June 24, 2010

posted by bearwife That claim returns to the federal district judge who first issued the injunction against releasing names. Hence, the names of signers remain unrevealed at this time.

Good. That's the right decision.
posted by mattdidthat at 10:25 AM on June 24, 2010

Were you then, or have you ever not been, not a member of the party to which this issue fails to not pertain?
posted by Babblesort at 10:26 AM on June 24, 2010 [2 favorites]

If a 3rd-grader turned in a paper containing this sentence, it would be returned covered in red pen.

Exactly. Why do all SCOTUS posts have to be obfuscated behind quintuply-negated sentences?
posted by DU at 10:27 AM on June 24, 2010

OK, people, translation:

1. People signed a petition (R-71) to repeal a law. The law had granted marriage-like rights to same sex partners.
2. Other people realized the signers probably were anti homosexual haters. They wanted to see the signer's names.
3. The signers asked a judge to keep their names secret. They said that they needed to keep their names secret so they could comfortably use their first amendment rights of expression and association and petition.
4. The judge agreed with the signers, by issuing an order called an injunction.
5. The appellate court said the judge was wrong.
6. The Supreme Court agreed the judge was wrong.
7. The Supreme Court said that usually, other people can see petitions to change laws.
8. But the Supreme Court thinks that if the signers in this casecan show they will be harassed or threatened, maybe should be able to keep their names secret.

Simple enough?

You could read the decision, too -- it is the second link.
posted by bearwife at 10:29 AM on June 24, 2010 [8 favorites]

If a 3rd-grader turned in a paper containing this sentence, it would be returned covered in red pen. Why do lawyers seem to have carte blanche for writing confusing and grammatically-awkward text?

There may be good reason to write "refusing to bar the disclosure of names" instead of "allowing the names to be released." These words have technical meanings that aren't designed with Metafilter or a 3rd-grader in mind. "Allowing" would be sloppy because it would imply that the court had some kind of active role in encouraging it. A "bar" implies that one party is arguing that some specific doctrine or provision prevents the names from being disclosed. "Refused" means the court rejected that argument. A court is more comfortable "refusing to bar" something than "allowing" something.
posted by Jaltcoh at 10:30 AM on June 24, 2010 [4 favorites]

My Federal criminal defense attorney ex once showed me a probation officer's report that included the following phrasing to describe her client's passing of all his required drug tests...

Mr. X has failed to supply a positive sample.

posted by Babblesort at 10:31 AM on June 24, 2010 [6 favorites]

Thanks, bearwife, for thumbnailing it. The original FPP lacked enough context to give those of us who have not been paying attention much of a clue about what the SCOTUS just did.
posted by notyou at 10:33 AM on June 24, 2010 [1 favorite]

8. But the Supreme Court thinks that if the signers in this casecan show they will be harassed or threatened, maybe should be able to keep their names secret.

A deciding factor will be if the R-71 bigots can get away with simply claiming being threatened, or if they will actually, finally have to prove it with actual, real, non-make-believe evidence this time. Here's hoping for the latter.
posted by Blazecock Pileon at 10:39 AM on June 24, 2010 [1 favorite]

Sure. IAAL, so aim for legal precision in my language. Didn't mean to be unclear.

And having said that, this is how point 8 should have read:

But the Supreme Court thinks that if the signers in this case can show the district judge they will be harassed or threatened, maybe they should be able to keep their names secret
posted by bearwife at 10:40 AM on June 24, 2010

But did they not disagree with the statement to the contrary that previous alterations rejected prior non-assumptions really been far even as decided to use even go want to do look more like?
posted by Faint of Butt at 10:41 AM on June 24, 2010

Could someone please put this in plain English or give a short summary what this is about?

Sure. Nutshell:

Washington allows changes to state law by referendum. In 2009 R71 Washington expanded the rights of same-sex partners to be entirely the same as that of "traditional marriage". Opponents collected signatures to get a referendum (R71) on the ballot to repeal the law, which they succeeded in doing. Washington law treats such referendum petitions as public records subject to disclosure like any other public record.

The R71 proponents filed suit in federal court to block this disclosure. They made 2 arguments:

1. There is always a Constitutional right to privacy for signatories to a referendum petition.

2. There is a right in this specific case dealing with specific referendum.

The district court ruled for the plaintiffs (the R71 people) on the first argument and didn't reach the second. The Ninth Circuit reversed that decision on appeal, holding (in a preliminary injunction) that the plaintiffs would likely lose on that first claim. The plaintiffs appealed to the Supreme Court.

The SC upheld the Ninth Circuit's ruling, saying that signing a petition is an expressive act (of a political view) under the First Amendment and so disclosure survives the general challenge because it helps combat fraud by allowing the public to review the signatures and promotes government transparency and accountability.

So, the general claim of privacy in all referendum petitions was denied. However, the SC left open the possibility that the plaintiffs may prevail on their second claim, that in this particular referendum disclosure of their signatures should be barred. The plaintiffs claimed they were subjected to threats and harassment resulting from R71, but it seems doubtful that they will prevail on the second claim either if you look at the various opinions.

Why do lawyers seem to have carte blanche for writing confusing and grammatically-awkward text?

What's awkward about it? The RR71 sponsors wanted the Washington Secretary of State to bar the disclosure of their signatures on R71 as required by Washington state law. The SOS refused to do so. The Supreme Court ruled in the SOS's favor. What's unclear about this? "The United States Supreme Court ruled today in favor of Secretary of State Sam Reed in refusing to bar the disclosure of names of voters that signed the Referendum 71 petitions last year." How would you write that sentence?
posted by Sangermaine at 10:44 AM on June 24, 2010 [3 favorites]

God damn it, bearwife.
posted by Sangermaine at 10:45 AM on June 24, 2010

Upholding the rights of bigots to prevent other people's happiness while remaining anonymous is what America is all about, apparently.
posted by Aquaman at 10:46 AM on June 24, 2010 [1 favorite]

A deciding factor will be if the R-71 bigots can get away with simply claiming being threatened, or if they will actually, finally have to prove it with actual, real, non-make-believe evidence this time. Here's hoping for the latter.

Why are people so anxious to see these names if not to harass these people in some way?
posted by straight at 10:49 AM on June 24, 2010

To further summarize bearwife's already able summary:

The signers' broader claim that disclosure of petitioners names as such violates their First Amendment rights was rejected as a matter of law. But their narrower claim that releasing their names in this case might be inappropriate was returned to the trial court for further consideration.

This is the right legal result, pretty much regardless of your position on the political issue. If exercising one's First Amendment rights will subject you to harassment, you're generally due some protection from the government. But getting that protection is going to require you to demonstrate that you have a legitimate fear of being harassed. This is a fact-intensive balancing test, and the Supreme Court doesn't usually do findings of fact, it renders decisions of law. Ergo the case is sent back to the district court to make that finding one way or the other.
posted by valkyryn at 10:50 AM on June 24, 2010 [1 favorite]

Sorry, Sangermaine. Great explanation by you, though.
posted by bearwife at 10:52 AM on June 24, 2010

(Not saying they don't deserve harassment, but that's a different question.)
posted by straight at 10:52 AM on June 24, 2010

A deciding factor will be if the R-71 bigots can get away with simply claiming being threatened, or if they will actually, finally have to prove it with actual, real, non-make-believe evidence this time. Here's hoping for the latter.

Why are people so anxious to see these names if not to harass these people in some way?
posted by straight at 10:49 AM on June 24 [+] [!]

That joke writes itself.
posted by hincandenza at 10:56 AM on June 24, 2010

Here's what I wonder: just how fair minded will Judge Settle be? A Bush appointee, he surprised many with his initial ruling.
posted by bearwife at 10:57 AM on June 24, 2010

Why are people so anxious to see these names if not to harass these people in some way?

It would be good for a judge to rule that fairness and equality do not constitute harassment.
posted by Blazecock Pileon at 11:00 AM on June 24, 2010

posted by straight Why are people so anxious to see these names if not to harass these people in some way?

It's simple. The people who want the names released claim there's no evidence the signers will be harassed, so they want the names released so they can harass the signers and create the evidence.
posted by mattdidthat at 11:01 AM on June 24, 2010

Why are people so anxious to see these names if not to harass these people in some way?

Here are two things I just thought of off the top of my head.

First: A business that supported this abominable law would instantly lose my patronage.

Second: If a civic leader or other public figure claimed to not harbor homophobic tendencies it would be fair to point to support of this law to undermine that claim.

Neither of these things are harassment. These things are just part of living in an open democratic society.
posted by Doublewhiskeycokenoice at 11:04 AM on June 24, 2010 [4 favorites]

Why are people so anxious to see these names if not to harass these people in some way?

The main reason they are anxious to see the names is that there wasn't full review given to the petitions to weed out duplicate signatures and non-voter-registered signers. Also there was controversy surrounding the practice of people signing the petition at the same time they registered to vote, meaning they were not registered at the time they signed the petition, which is a requirement under WA law.

Also, it is the law in WA that all signatures on a petition be available for public review, because signing a petition is a public political act and not a private polling matter.

According to some projections during the signature verification process, it was statistically unlikely that there were enough signatures to get R-71 on the ballet to begin with. And a full accounting of the petitions never took place, although I can't find a link to that due to weak Google-fu.

There are plenty of reasons to make petitions signatures public other than harassment, and most of them have to do with making sure the law is being followed correctly.
posted by hippybear at 11:08 AM on June 24, 2010 [8 favorites]

Why are people so anxious to see these names if not to harass these people in some way?

It would be good for a judge to rule that fairness and equality do not constitute harassment.

I agree. But what does your response have to do with the question?
posted by The World Famous at 11:11 AM on June 24, 2010

I don't know anything about California. But it is routine here that political petitions are challenged by their opponents such that many signatures are found to be invalid; candidates usually try to get several times the required number of signatures on nominating petitions because of this. Does California allow challenges to the signatures on petitions for ballot referenda? If so, it seems like the Prop 8 people want to be excluded from routine review on the basis that their opinions are too noisome to publicly acknowledge. That doesn't seem like very good public policy.
posted by enn at 11:17 AM on June 24, 2010

Thanks for the serious response, hippybear. I was seriously wondering because it seemed like all the discussion of this issue I'd seen previously came across as, "Those idiots claiming to fear harassment! They need to show us their names so we can harass them!"

That does seem like a good argument that the interests of state in having transparent election procedures would outweigh the theoretical fear of harassment. But I do wonder about drawing the anonymity line at the ballot box and nowhere else. Most of the time this sort of thing would come up, anonymity would be protecting minorities and other more progressive causes from intimidation and harassment.
posted by straight at 11:19 AM on June 24, 2010

But what does your response have to do with the question?

That gay people exist and are entitled to equal protections under the law should not be considered sufficient basis for harassment, which — when you really get down to brass tacks — is almost certainly the basis for "Doe's" claims, since they couldn't provide any evidence last time around under threat of perjury.
posted by Blazecock Pileon at 11:22 AM on June 24, 2010

Here's some more information about what happened when R-71 was headed for the ballot. Essentially, the (different, state) judge who reviewed a suit by people opposed to R-71, who wanted to keep it off the ballot, found lots of problems with the signatures. But that state judge also had to let R-71 go to the ballot, because the lawsuit she reviewed was filed in the wrong court.
posted by bearwife at 11:23 AM on June 24, 2010

enn: I don't know anything about California, either. But this specific case is about a voter referendum in Washington State, so I'm not sure whether is applies to Prop 8 or not.
posted by hippybear at 11:26 AM on June 24, 2010

"Those idiots claiming to fear harassment! They need to show us their names so we can harass them!"

I do have to claim a certain amount of ironic enjoyment out of the idea that the same group of people who (as a whole, certainly not the same individuals) have spit on me in public, thrown bottles at me out of moving vehicles, had restaurants approach me to stop my "appalling display of public affection" and other such casual bigotry are now afraid that I'm going to egg their cars or burn a big pink triangle on their front lawn or something.

It's as if they realize the fear they've created over the past 40 years since Stonewall (and before, when the fear was the norm, but was more insidious and less confrontational), and know that it can be directed by anyone toward anyone at any time. And out of the fear they feel about feeling that fear-mongering directed toward them, they seek to hide in their own closet.

If there's one lesson I've learned from the past 20 years of being a homosexual, it is that harassment is never a good choice in how to influence people toward less bigotry.
posted by hippybear at 11:30 AM on June 24, 2010 [9 favorites]

Anti-Gay Signature Fraud Caught On Tape - Port Angeles, Washington (via BP's post). Referendum 71 petition signatures collectors outright lying about what the petition they're offering does. Signatures should be public at the very least so people can find out whether or not they got scammed in to signing something they were actually against.
posted by 0xFCAF at 11:30 AM on June 24, 2010 [1 favorite]

Why are people so anxious to see these names if not to harass these people in some way?

The ol' "you have nothing to fear if you aren't breaking the law" argument, only reversed.
posted by DU at 11:33 AM on June 24, 2010

hippybear: oops — thanks for the correction.
posted by enn at 11:37 AM on June 24, 2010

Why are people so anxious to see these names if not to harass these people in some way?

I don't think they need to be harassed. I think having their name publicly associated with a law so clearly on the wrong side of history is their punishment, and I think shame is a large factor in their desire to hide their actions.
posted by mullingitover at 11:39 AM on June 24, 2010

posted by mullingitover I don't think they need to be harassed. I think having their name publicly associated with a law so clearly on the wrong side of history is their punishment, and I think shame is a large factor in their desire to hide their actions.

The people who signed the petition didn't make Referendum 71 law, the voters of Washington state did. The people who signed the petition merely got the issue on the ballot. Signing a petition does not automatically or tacitly indicate support for the proposal, it simply means the signer thinks the issue should be on the ballot, to be decided by voters. Harassing the people who signed the petition is just engaging in the bigotry and and meanspiritedness of which they're being accused.
posted by mattdidthat at 11:53 AM on June 24, 2010

Who the heck signs their name to a petition expecting privacy?

I ask for both the common-sense and the legal perspective.
posted by rokusan at 11:56 AM on June 24, 2010 [2 favorites]

Umm, mttdidthat, the law granting same sex couples the same rights as married couples was already law. R-71 was put on the ballot in hopes the voters would vote "no," thereby overturning the law that gave same sex couples the same rights as married couples.

So by voting YES on R-71, which they did do 53%-44%, voters rejected the anti-homosexual effort by R-71 sponsors.

To quote from the link I provide here:

According to the description prepared by the Washington Secretary of State, the ballot summary read as follows:

Same-sex couples, or any couple that includes one person age sixty-two or older, may register as a domestic partnership with the state. Registered domestic partnerships are not marriages, and marriage is prohibited except between one man and one woman. This bill would expand the rights, responsibilities, and obligations of registered domestic partners and their families to include all rights, responsibilities, and obligations granted by or imposed by state law on married couples and their families.
The measure implemented its changes by amending state laws that confer rights and responsibilities to married partners to those in state registered domestic partnerships, excluding marriage Revised Code of Washington (RCW) 26.04:

For the purposes of this code, with the exception of chapter 26.04 RCW, the terms spouse, marriage, marital, husband, wife, widow, widower, next of kin, and family shall be interpreted as applying equally to state registered domestic partnerships or individuals in state registered domestic partnerships as well as to marital relationships and married persons.

A "YES" vote approved SB 5688, which grants state registered domestic partners in Washington all rights, responsibilities, and obligations granted by or imposed by state law on married couples. A "NO" vote rejected SB 5688.
posted by bearwife at 12:02 PM on June 24, 2010

I'm trying to think if there is any petition that I would sign where I wouldn't want my name known. Generally, that scenario only exists in societies with torture and secret prisons, so we're probably ok.
posted by mecran01 at 12:04 PM on June 24, 2010

suit by people opposed to R-71

The people who signed the petition didn't make Referendum 71 law, the voters of Washington state did. The people who signed the petition merely got the issue on the ballot.

It's worth noting that this discussion is a little confused by how Washington State does referenda on bills in the legislature. Ref. 71 was a referendum on a pro-civil-rights bill that the state legislature had passed. Voting "approve" in the referendum was a vote for that pro-rights bill, voting "disapprove" was a vote against it. Of course, the pro-rights side opposed holding a referendum at all, so they could be said to "oppose" the referendum, even though they voted "approve" when the referendum was held.

Whew!

In the event, when the referendum was held, the "approve" side won, and the pro-civil-rights bill became Washington State law, giving same-sex couples full civil marriage rights on the state level.
posted by mr_roboto at 12:04 PM on June 24, 2010

Neither of these things are harassment. These things are just part of living in an open democratic society.

See, now you are just harassing me. Stop harassing me!
posted by joe lisboa at 12:05 PM on June 24, 2010

Er, ah, right, yes. That's what I meant. I lose track of the refusals to uphold the lower court's decision to overturn the refusal to uphold the injunction.
posted by mattdidthat at 12:05 PM on June 24, 2010

The question of whether signatories to petitions should be public seems a bit separate from whether the signatories to a particular petition should be made public retroactively, if -- and this is a big if -- the signatories believed that it wouldn't be public at the time. It's sort of an expectation of privacy issue; did people who were signing believe that it would be public or private? Did they sign knowing it was a public act, like standing up in a town meeting, or did they do it thinking it was more like the voting booth? If it was the latter, I could see an argument for keeping that particular petition private, but at the same time I'd also want to see it thrown out and new signatures gathered, this time with everyone knowing that they'd be made public.

Put differently, if the way things are supposed to work is that signing a petition is supposed to be a public act, but people signed a petition without understanding that and thinking it was public, and are now afraid that they're going to be harassed, then that petition should just be thrown out and the thing should be redone.

Making the signatures public and letting the petition remain valid just seems like it's asking for trouble and a deepening of ill will on both sides of the issue. The best thing might be to force a re-do of the petition, making sure this time that the only people who sign it are the ones comfortable standing up and announcing their stance. This would preserve the process while also preventing anyone from claiming harassment as the result of something they thought (however erroneously) was secret. My guess is that the measure wouldn't pass a second time if done completely in the open.
posted by Kadin2048 at 12:07 PM on June 24, 2010

In the event, when the referendum was held, the "approve" side won, and the pro-civil-rights bill became Washington State law, giving same-sex couples full civil marriage rights on the state level.

A lot of the reason for the bill to be passed in the first place was to placate public anti-gay religious groups in WA who had said "we don't care if you give them all the same rights, just don't call it marriage". So the legislature actually called their bluff and passed what was nicknamed the "everything but marriage" bill. Then those same groups got into a tizzy and started a process to have the law rescinded, starting with getting a judge to suspend its implementation until it could be put to public referendum.

In that way, it is similar to Prop 8 in CA -- it sought to remove an existing law granting rights to homosexuals (and in this case, anyone over 62 who wanted to register into a Domestic Partnership but not get married, for whatever legal ground that might be useful.)

Watching from the outside, it's comic. Watching it happen in my own state was a bit horrifying.
posted by hippybear at 12:11 PM on June 24, 2010 [1 favorite]

If people so lily-livered that they can't stomach the idea of their neighbors knowing that they signed a petition which they actually did sign then those people have no business giving their names and addresses out to strangers in the street. If you want all of your political opinions to remain solely between you and your maker then leave it in the voting booth and leave public political action to people with a spine.
posted by Doublewhiskeycokenoice at 12:11 PM on June 24, 2010 [4 favorites]

My guess is that the measure wouldn't pass a second time if done completely in the open.

Again, the measure' passage was not what the people supporting the referendum wanted. When it passed (approved in a 53-47 margin), rights for same-sex couples in Washington State were increased. The people responsible for getting the referendum on the ballot wanted to see it defeated.

A redo is impossible in this case, since the Washington State Constitution requires that referenda on laws passed by the legislature can only be forced within 90 days of those laws being passed. The law in question was passed in May, 2009.
posted by mr_roboto at 12:12 PM on June 24, 2010

Why are people so anxious to see these names if not to harass these people in some way?

I'm going to take this at face value and answer "because if the law says that a group of citizens must stand up and make an affirmation in order to accomplish a political goal then it is antithetical for that affirmation to be done in secret. Further, as others have pointed out, a secret list of names begs for fraud and deception."

Reading between the lines, I'll say that not all reaction to someone's behavior constitutes harassment. They may not like the fact that people want to see the names of the people who would propose this resolution so they can make sure not to associate with them or patronize their business, but people are entirely within their rights to make those exclusions.

It's possible that people will also go on to do illegal things ranging from denying them employment (which may or may not be illegal in WA, actually, and depending on whether you count this as political belief) to committing acts of violence. However we accept this risk in plenty of other ways, including political contributions, so in my mind this is an effort to fight a culture way from unequal ground.
posted by phearlez at 12:15 PM on June 24, 2010

If people so lily-livered that they can't stomach the idea of their neighbors knowing that they signed a petition which they actually did sign then those people have no business giving their names and addresses out to strangers in the street. If you want all of your political opinions to remain solely between you and your maker then leave it in the voting booth and leave public political action to people with a spine.

Is there a good reason we don't publicize voting records as well?
posted by mecran01 at 12:15 PM on June 24, 2010 [1 favorite]

did people who were signing believe that it would be public or private?

In WA it is law that petitioners' signatures are a matter of public record. Ignorance of the law is no excuse, blah blah blah. That's how it's been for a while now. What really blew this up isn't the idea of having to travel to whatever state office actually holds the signatures on file and looking at the physical papers which (I believe) have remained in public records access this whole time.

This entire case was started by the threat to post the signatures on the internet. See, public access that is truly open to the average joe... that's a threat to privacy and personal safety. Public access which requires weekdays off and the ability to travel? That's still okay.
posted by hippybear at 12:16 PM on June 24, 2010 [1 favorite]

So these people signed a petition to take away peoples' rights, and are now demanding that their rights be protected? If they think same-sex "everything but marriage" is wrong, why not go on the record about it? Are they ashamed or something? Christ, what an a bunch of assholes.
posted by kirkaracha at 12:18 PM on June 24, 2010 [1 favorite]

Is there a good reason we don't publicize voting records as well?

It makes it harder to buy votes or induce people to vote a certain way with threats.
posted by mr_roboto at 12:18 PM on June 24, 2010 [1 favorite]

Signing a petition does not automatically or tacitly indicate support for the proposal, it simply means the signer thinks the issue should be on the ballot, to be decided by voters. Harassing the people who signed the petition is just engaging in the bigotry and and meanspiritedness of which they're being accused.

a: Fair enough. Petition signers indicted by their action that they believed civil rights should be put up to popular vote. Personally I find that equally repugnant, but I'm okay with making the distinction.

b: Gimmie a break. People don't knowingly sign petitions to create ballot initiatives they disagree with. It may be a popular thing for signature-seekers to claim "we're just asking that you support the right of the public to make the decision" (see above) but that's a fiction. There's three kinds of signatures on an initiative petition: supporters, people who were deceived, and disinterested folks who will sign anything.
posted by phearlez at 12:22 PM on June 24, 2010

Is there a good reason we don't publicize voting records as well?

Well, yes, because we have this thing called a secret ballot. It is aimed at preventing voter intimidation and bribery and other forms of coercion.

But the decision to petition to place a law on the ballot has never been accorded the same secrecy, until Judge Settle's injunction in this case. Generally, the public has a pretty big interest in knowing who is pulling the strings in creating legislation, or repealing it.
posted by bearwife at 12:22 PM on June 24, 2010

Why are people so anxious to see these names if not to harass these people in some way?

To better exercise their rights of free association, and free lack of association.

To be sure, I imagine that people not directly concerned with the propriety of the initiative itself might want to know the names in order to behave differently towards people who signed the petition. Maybe they want to cease doing business with them -- but not doing business with someone is not harassment. Maybe they want to ask them why they did that, but asking people a question is not harassment. Maybe they want to berate them for their choice, but within some bounds berating someone is not harassment (though it can easily turn into it).

To qualify meaningful harassment and not the free exchange of ideas or free association, it should at the very least interfere with the purported victim's daily life or cause a reasonable person to fear for their safety. I don't see any reason to think that people looking for the names want to actually harass the signers.
posted by ROU_Xenophobe at 12:23 PM on June 24, 2010 [4 favorites]

To better exercise their rights of free association, and free lack of association.

I only want to associate with people whose credit card numbers I like. So I'm going to need to know everyone's credit card number.
posted by The World Famous at 12:29 PM on June 24, 2010 [2 favorites]

I think having their name publicly associated with a law so clearly on the wrong side of history is their punishment...

The wrong side of history. I've been trying to figure out which "side" that is for the longest time. Still no luck, but thanks for the pointer.
posted by MarshallPoe at 12:38 PM on June 24, 2010

I'm just glad all the apologetics and specious reasoning are on the wrong side of the law, for once. It will be a beautiful day when Doe and its supporters will either have to admit in front of a judge that they were never under threat of physical violence or will have to perjure themselves.
posted by Blazecock Pileon at 12:38 PM on June 24, 2010

I'm not even sure if I signed an R-71 petition at this point; I very well might have, and I obviously voted for it in the election itself (although when a MeFi thread on it was posted, I somehow garbled my negatives and stated the opposite of what I meant- which I think was the goal for the R-71 promoters, to sow confusion). But it seems that initiatives were meant to be public in Washington state, and that is the current law, so this should have been and seems to have been fairly open-and-shut for SCOTUS: the SoS shouldn't have to bar the releasing of the signatures as that is already done for other initiatives. The harassment angle seems similarly easy to resolve, as hippybear notes it's already public but you just have to travel to see it so why should internet publication result in more harassment?

Plus, this particular referendum has a plausible deniability built-in for closet bigots: R-71 was pushed by a couple of extremely homophobic spouse abusers/tax cheats who thought this would unleash a popular ground swell of fag-hating bigotry to overturn the recently enacted "Everything but marriage" bill. Gay rights organizations and supporters of the original bill didn't like the referendum because they were worried it wasn't the right time for such a vote, in case it didn't go their way and undid the bill they'd just fought hard to enact. So they pushed hard for the referendum to not get signatures- but once it was on the ballot they pushed hard for the referendum to pass. Anti-gay organizations in the, uh, "mainstream" homophobic community were similarly fearful that it might force the issue in a way the homophobes didn't like so they discouraged the referendum getting signatures and pushed for "No" when it made the ballot.

The anti-gay rights groups had reason to be concerned, as happily when R-71 made the ballot and then passed 53%-47%, it meant that not only had the legislature encoded gay civil unions, but a majority of the citizens of the state approved it immediately! Usually the bigots like to say it's the law that matters, except when they disagree with the law and it becomes all about the "will of the people". R-71 going up for a vote and winning meant the bigots had no recourse left in WA state (except activist judges, I guess).

Anyway, because of the complicated and twisted history of R-71, even if you're a hateful bigot of Phelpsian proportions you'd have a hard time claiming harassment fears over your signing the petition, since there'd be no clear way to tell from signing the petition what your stance was on civil union/gay marriage.
posted by hincandenza at 12:56 PM on June 24, 2010 [1 favorite]

MarshallPoe: The wrong side of history. I've been trying to figure out which "side" that is for the longest time. Still no luck, but thanks for the pointer.

Oh that's easy: it's the side of history that's gradually arcing away from justice.

Here to help!
posted by hincandenza at 12:58 PM on June 24, 2010 [3 favorites]

It would be good for a judge to rule that fairness and equality do not constitute harassment.

Naturally. And since we're talking about an unquestionably righteous cause -- fairness and equality -- it pretty much follows that not only would no one promoting such a cause would do anything untoward, like harassment, but it may even be the case that anything that furthers the cause is de facto moral, even if in other contexts it would be harassment.
posted by namespan at 1:04 PM on June 24, 2010 [1 favorite]

Oh that's easy: it's the side of history that's gradually arcing away from justice.

For your next assignment, define "justice," without using the words "that I agree with."
posted by Etrigan at 1:06 PM on June 24, 2010

For your next assignment, define "justice," without using the words "that I agree with."

In this case, I wold think "justice" would be "in keeping with both the letter and the spirit of the phrase 'equal protection under the law.'"
posted by Doublewhiskeycokenoice at 1:08 PM on June 24, 2010

In this case, I wold think "justice" would be "in keeping with both the letter and the spirit of the phrase 'equal protection under the law.'"

Do I really need to ask for a definition of "spirit," or do you get the point that "the right side of history" isn't quite as obvious as you and hincandenza seem to think it is?
posted by Etrigan at 1:09 PM on June 24, 2010

The wrong side of history. I've been trying to figure out which "side" that is for the longest time. Still no luck, but thanks for the pointer.

Like pornography, our future great-grandchildren will know it when they see it. Now please stop showing our future great-grandchildren pornography.
posted by joe lisboa at 1:33 PM on June 24, 2010

Do I really need to ask for a definition of "spirit," or do you get the point that "the right side of history" isn't quite as obvious as you and hincandenza seem to think it is?

Some people get real nitpicky when it comes to allowing gay people the same rights as any other citizen. All of a sudden these people find all sorts of subtleties of the law that somehow seem to prevent the simple application of equality regardless of race (back when), gender (women vote? Well, you see, it's a complicated situation and we must be very careful...), and now sexual orientation. Such experts at the law, and such refined connoisseurs of metaphysical subtleties. I guess it's progress - from the time when the same kinds of people were more expert with the rope and gun.
posted by VikingSword at 1:36 PM on June 24, 2010 [2 favorites]

"Everyone thinks they are on the right side of history."

There, your red herring is dispatched, skinned and mounted on the wall. Can you contribute anything to the discussion surrounding putatively reasonable expectations of personal privacy in public political advocacy now or was there another irrelevant non-issue you cared to introduce?
posted by joe lisboa at 1:42 PM on June 24, 2010

it may even be the case that anything that furthers the cause is de facto moral, even if in other contexts it would be harassment

Please provide an example, if you can. So far, it seems that proponents of keeping the names secret are stretching the meaning of the word "harassment" so thin it is becoming meaningless. You knowing that I signed a petition is not any kind of harassment of me by you — it never has been, until now.

In any case, notions of fairness and equality are not just about rights associated with marriage, but with the obligations we all have to the law. The petition signers behind Doe were given special dispensation to remain anonymous; the original law was that the names were to have been released, as was confirmed in today's ruling.

Why should these particular petition signers remain above the laws that should be applied fairly and equally to all? Why does their hatred of gay people grant them special dispensation granted to no one else?
posted by Blazecock Pileon at 1:43 PM on June 24, 2010 [1 favorite]

Not directed at VikingSword, obviously.
posted by joe lisboa at 1:44 PM on June 24, 2010

Why should these particular petition signers remain above the laws that should be applied fairly and equally to all? Why does their hatred of gay people grant them special dispensation granted to no one else?

I don't know. What rationale and evidentiary support was offered in their successful motion for injunctive relief? I'm genuinely asking, since I don't know and since you seem to know what the arguments and evidence were. Can you tell me?
posted by The World Famous at 1:47 PM on June 24, 2010

MetaFilter: a third-grader in mind.
posted by five fresh fish at 1:57 PM on June 24, 2010

One quirk to understand:

In Washington, when you sign a petition, you are saying "Yes, I will vote for this should it appear on the ballot." In other states, when you sign a petition, you are saying, "Yes, I would like this to be placed on the ballot."

It's a little thing, but it plays out big in this particular situation. In another state, signing the petition could be construed as "doing your civic duty" or some such mealy-mouthed thing. In Washington, signing the petition meant you would vote against R-71 should it appear on the ballot. So if you signed your name, you are a de facto homophobe, just as if you sign your name on a Tim Eyman anti-tax initiative, you are aligning yourself with Eyman.

This was one reason why many on the Christian Right in Washington, at least around Seattle, stayed away from the petition drive.

Could something bad happen to people who signed the petition? Possibly. But I think that if any stupidity happens they will amend the law to give signers some cover, e.g. by saying it's for referring and not that they'd vote for/against it. And I think people on both sides know that if someone does do something really stupid, there be dragons, and it will pretty much be the end of the system we have in this state. The libertarian streak that pervades in Washington will come out and demand unprecedented levels of privacy protection.
posted by dw at 2:48 PM on June 24, 2010

In Washington, signing the petition meant you would vote against R-71 should it appear on the ballot. So if you signed your name, you are a de facto homophobe, just as if you sign your name on a Tim Eyman anti-tax initiative, you are aligning yourself with Eyman.

Wait what? Page 6 of this document (scroll down) shows the full text of the petition which was circulated, and there is even a (really really huge) image of the petition here showing the additional header text. I really don't see any pledge of any kind here about voting one way or the other...

The Marijuana Legalization Initiative petition, hoping to get something on the ballot also doesn't have any language about there being a pledge to vote any certain way about the topic.

I'm unclear on what you mean, I guess.
posted by hippybear at 3:26 PM on June 24, 2010

That cannot be true, dw; I've never heard that before and I've signed other petitions in Washington state, including ones I was myself not 100% certain on but felt it deserved a time at the ballot including things like the monorail ballot initiative, marijuana reform initiatives, etc.

The logical conclusion of your statement is that you would face legal or civic liability if you did not vote the way you signed- yet with a secret ballot how, and therefore why, would they enforce or require such a thing? Can you cite that? I've never heard anything other than "signing a referendum petition means agreeing to put it on the ballot for a full vote", and I'd hazard almost no Washington citizen has heard that.


Also, I further think you're making shit up wholesale since R71 was a referendum to affirm the bill if passed and revoke the bill if it fails to pass. It was an attempt to undo the bill via referendum by having a majority vote against R-71, as the homophobic R-71 promoters thought the sentiment in Washington was that the "everything but marriage" bill should be revoked and surely a popular vote would prove them right... but no, they were wrong.

Even if your "You have to vote IN FAVOR OF a referendum for which you signed the petition to put it on the ballot" babble turns out to be true in Washington state, which I really doubt is true and is completely unenforceable anyway... where on God's green earth do you then conclude that with this particular special snowflake of a referendum we should declare up is down and decide that signing the petition to put the referendum on the ballot must mean you actually, in this one special case of referendum signing in Washington, planned and are required to vote against it and thus are a "de facto homophobe"? Sure we know the backstory that R-71 was started by homophobes to attempt to undo the law, but that's not what the referendum says.

From your own words, emphasis my own:

In Washington, when you sign a petition, you are saying "Yes, I will vote for this should it appear on the ballot."

...

In Washington, signing the petition meant you would vote against R-71 should it appear on the ballot.

The hell?! Are you smoking the crack pipe today? Those two statements don't reconcile and they're one paragraph apart. By your own (I believe faulty assumption-based) reasoning anyone who signed the petition to put R-71 on the ballot was legally required to vote for R-71 and thus affirm "everything but marriage" as law, and is the very opposite of a homophobe.

Maybe all those R-71 supporters are worried that they'll be outed to their homophobic co-workers and friends the horrible truth that they are tolerant and understanding open-minded people. Yeah, I can see where the courts would have a vested interest in preventing people from finding that out.
posted by hincandenza at 3:30 PM on June 24, 2010

In Washington, when you sign a petition, you are saying "Yes, I will vote for this should it appear on the ballot." In other states, when you sign a petition, you are saying, "Yes, I would like this to be placed on the ballot."

I don't think this is true. Even if true, how is it enforceable? The ballot is secret.
posted by mr_roboto at 5:32 PM on June 24, 2010

I hate to be cynical, but I keep trying to think of scenarios in which this ruling can be abused by the far right.
posted by mecran01 at 7:33 PM on June 24, 2010

Not to worry, mecran. The right is undoubtedly wracking their brains as well. "How can we fuck over the fags, bitches, or poor," they wonder,"how can we subjugate them all?" Except they wouldn't use a big word like subjugate.
posted by five fresh fish at 7:48 PM on June 24, 2010 [1 favorite]

In Washington, when you sign a petition, you are saying "Yes, I will vote for this should it appear on the ballot."

I'm sorry, dw, but that is completely false.

Did one of the oh-so-trustworthy petition workers tell you that?
posted by bearwife at 10:41 AM on June 25, 2010