Are Petitions Free Speech?
Once upon a time, if you were going to petition government you had to walk the neighborhoods gathering signatures. While doing that your friends and neighbors got the opportunity to see who had recently signed the petition. It was time intensive work which meant that those who organized in advance were the ones who got their petitions before the government. With the advent of the internet it is really easy to put petitions together and gets hundreds of signatures in a matter of a few hours. As a natural result of that, the question is being asked - are these signatures a public act or a private one?
The Supreme Court voted last week to block release of the names of more than 138,000 people in Washington state who signed petitions seeking to repeal a same-sex domestic partner law in a ballot scheduled for Nov. 3.
The Supreme Court's intervention set off a broad debate among election-law experts and 1st Amendment scholars over what is private and what is public when it comes to politics.
Is signing a petition and delivering it to the government a public act, like voting on a bill in the legislature or contributing money to a campaign? Or is it more like casting a secret ballot at the polling place?
The reason this question is being raised is because gay rights activists are trying to make the names public.
The case in Washington was the latest in which gay rights advocates had sought to use public records to expose supporters of anti-gay measures.
"We've put close to a million names online," said Aaron Toleos, co-founder of Boston-based KnowThyNeighbor.org. He said the group had posted the names on petitions seeking rollbacks in gay rights laws in Massachusetts, Florida, Arkansas and Oregon.
Given how these same gay rights activists treated people who supported traditional marriage in the Prop 8 debate I can understand the reluctance to release the names.
"The process of signing a petition is political speech," James Bopp, a lawyer for Protect Marriage Washington, said in his appeal to the high court. This speech will be "chilled," he added, if the signers of a petition are "harassed, intimidated and threatened."
In an interview, Bopp, an Indiana lawyer and a prominent conservative, portrayed the dispute as "part of a nationwide effort to harass and intimidate supporters of traditional marriage."
I'm not sure I agree 100% with Mr. Bopp's assessment, but I understand his reasoning for that assessment as we have seen here in Utah.
First Amendment scholar Eugene Volokh of UCLA questioned whether petition signers have a constitutional right to anonymity.
"As a matter of 1st Amendment law, you have the right to speak anonymously but you don't have a constitutional right to essentially engage in a legally significant action anonymously," he said. "The state can demand you identify yourself on a petition, and at that point it seems the state is entitled to publish it."
Signing a petition is more akin to a lawmaker's vote, which is usually required to be made in public so the citizenry can monitor the progress of the laws that will govern them, legal analysts say.
But Richard Hasen, a Loyola law professor, noted that the Supreme Court in the past has protected civil rights groups and socialists from revealing the names of their members because of fears they could be harassed and intimidated.
"The court would not necessarily construe signing a ballot measure as a 1st Amendment-protected activity," Hasen said. "But if it is, in fact, true that signers face harassment, I think that's troubling."
You've seen the arguments pro and con. What do you think? At first blush, I am leaning toward Mr. Volokh's assessment but I am torn and I am more than willing to be convinced toward the other argument....Are internet petitions protected free speech?
Cross posted at Ladies Logic where your comments are welcome
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