The State of Washington has a series of process rules which, when taken together, courts have interpreted to require that the identity of citizens who sign referendum petitions (that is, petitions that have the legal effect of causing a law already passed by the legislature to be suspended and sent to the voters for approval) be published as public information. The proponents of a referendum to overturn the state’s domestic partnership law objected to this, claiming that such a requirement interfered with their right to freedom of speech (by publishing their names, it subjected them to the risk of retaliatory harassment, thereby placing a burden on the exercise of their right to free speech).

They lost at the Supreme Court this morning, but they lost in a way which means they may yet win.

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First amendment challenges, like many constitutional challenges, can be brought using two different kinds of argument: (1) a facial challenge that alleges that the law is always unconstitutional under any circumstances, or that the circumstances under which it is constitutional are so small in comparison with the circumstances in which they aren’t that they it’s equivalent to never, or (2) a challenge which says that, in the particular situation presented by the facts of the case, the way the law is being applied is unconstitutional. Generally speaking, as-applied challenges are more likely to succeed, but sometimes facial challenges do as well (the communications decency act was struck down on a facial challenge, for example).

The opponents of SR71 (that is, the people who wanted to hold a referendum and who then cmapaigned against it) have brought both kinds of challenge. Their facial challenge is what made it to the Supreme Court today; their as-applied challenge remains at the district court, and the fact that they lost the facial challenge does not mean that they will lose their as-applied challenge.

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Washington law does not explicitly require referendum petition signatures per se to be public, but it requires that all “public records” be available for inspection and copying, and defines that to include “any writing containing information relating to the conduct of government or he performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency”; that clearly covers referendum signatures (and appears to be intended to be so broad as to cover virtually everything imagineable). The Supreme Court states as a basic premise that such a law is subject to first amendment review when it is applied to petition signatures, because (a) signing the petition is inherently an expressive act (and therefore ‘speech’), but they concede that the act of signing a referendum petition is also an act that has a role in the electoral process which can therefore be regulated as part of the electoral process. The issue therefore contains significant interests on both sides, and the court responsds by balancing those interests against each other, looking at: how serious is the burden on the speech interest, how important is the government interest at issue, and how closely tied is the regulation to the government interest?

The standard used in previous cases to perform such balancing has been “a substantial relation between the disclosure reqauirement and a sufficiently important governmental interest.” The burden lies with the State of Washington to demonstrate that, so it put forward effectively three interests: (a) combatting fraud in the electoral process (eg, invalid signatures); (b) fostering government transparency; (c) providing information to the electorate about who supports the petition. The court looked only at the first interest, decided that Washington’s interest in combatting fraud in the electoral process was important enough (and this disclosure requirement was sufficiently related) that the standard had been met, and then ignored the other two rationales (because good courts don’t rule on questions they don’t have to).

The opponents of SR71 tried to counter this by arguing that no, really, the burden on the exercise of speech rights is really, really high, and the normal standard for disclosure shouldn’t apply. After all, several groups plan to post the list of signatures in searchable form on the internet, where they could be combined with publically available phone numbers and maps, and this information will be used to harass and intimidate signers. Which is, in theory, a legitimate argument … for an as-applied challenge. There’s no evidence that this is a problem for people seeking a referendum on less emotionally charged issues.

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Justice Breyer concurred for the purpose of pointing out that the court, which didn’t say it was balancing interests but obviously was, was balancing interests.

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Justice Alito concurred for the purpose of observing that, while he agrees with the argument that in the general case disclosure of referendum petition signatures doesn’t violate the first amendment, he thinks an as-applied challenge will easily succeed whenever there is a “reasonable probability” of harassment, and that he really thinks the SR71 opponents should win their as-applied challenge. (He went on at length about that even though it wasn’t necessary to answer that question and judicial restraint generally calls for not answering unnecessary questions).

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Justice Sotomayor concurred for the purpose of pointing out that initiatives and referenda are special creatures whose rules are basically up to the people of each State, acting as sovereigns, and that the court should grant states wide leeway to develop their own rules governing the application of direct democracy. (An unusually strong states-rights position for a liberal justice).

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Justice Stevens concurred for the purpose of saying that no, really, signing referendum petitions aren’t an exercise of freedom of speech, and then proceeded to explain why he thinks the as-applied challenge should fail. (It’s unclear whether his off-topic rant or Justice Alito’s off-topic rant came first).

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Justice Scalia concurred for the purpuse of saying that he doubts that signing a referendum petition is an exercise of free speech, to criticize a 1995 decision invalidating a ban on anonymous campaign literature, and to wholeheartedly support the argument that, in signing referendum petitions, citizens are acting as legislators, whose behavior has traditionally been *required* to be public, even in colonial times – the federal constitution and state constitutions all require actions of the legislature to be kept in public journals, and revolutionary-era petitions for redress of grievances (which a referendum petition clearly is) were always read publically. He then proceeded to argue that in colonial times, *voting* was public; and if voting on a referendum was allowed to be public, it’s nonsense to say that a rule making petition signatures public would have been prohibited.

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Justice Thomas dissented. He believes the problem is not that requiring disclosure interferes with the freedom of citizens to speak, but with their freedom to associate with one another; accordingly, because there’s a particularly high value to privacy in political associations, the standard the state should have used is higher (it must demonstrate a “subordinating interest of the State that is compelling, and … a substantial relation between the information sought and an overriding and compelling state interest”). The state can’t meet that burden.

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I agree with Justice Thoms that the state couldn’t meet hte burden he wants the state to meet, but I’m unconvinced that it’s the right one – he doesn’t really explain *how* signing a petition to revoke a law is an act of *association* rather than an act of speech or an act of legislation, and without a compelling argument there, his reasoning just collapses. My position on this is probably closest to Justice Scalia: signing a referendum petition, or an initiative petition, is an inherently legislative act; it has a binding legal effect and should not be carried out in secret.

This decision appears to be unimportant, in that the opponents of SR71 still have an active case and are still likely to prevail, but that’s misleading: a decision on the other side would have had enormous implications – because if a state can’t require disclosure of signatures on a referendum, it probably also can’t require disclosure of authorship of campaign ads (the burden on speech would be the same, but the state interest would be lower). So: there was a possibility of a major upheaval in campaign law coming out of this, and that possibility has been deflected, rather decisively.