Justice Antonin Scalia, for instance, derided the idea as “touchy-feely.”
“The fact is that running a democracy takes a certain amount of civic courage,” he said. “And the First Amendment does not protect you from criticism or even nasty phone calls when you exercise your political rights.”
The argument in the case, the last scheduled in the term and probably the last of Justice John Paul Stevens’s tenure, was lively and wide-ranging, with the justices kicking around analogies with unusual gusto.
While the justices appeared unlikely to adopt the sweeping rule requested by the petitioners, several left open the possibility that proof of potential harassment in particular cases could warrant secrecy.
The case arose from a failed effort to overturn a Washington State domestic partnership law known as the “everything but marriage” act. Protect Marriage Washington, a group that supports traditional marriage, sued to block release of the names of the more than 130,000 people who signed petitions to put the measure on the ballot. The group said disclosure would probably result in “threats, harassment and reprisal.”
James Bopp Jr., a lawyer for the group and two anonymous individuals, argued that Washington’s open records law ran afoul of the First Amendment in requiring that the names of petition signers be disclosed.
Justice Stevens asked a single set of questions, about whether disclosures might encourage worthwhile debate.
Mr. Bopp called that “a very marginal interest.”
Justice Scalia jumped in. “What about just wanting to know their names so you can criticize them?” he asked. “Is that such a bad thing for democracy?”
Justice Anthony M. Kennedy said that at least some forms of retaliation, notably economic boycotts and picketing, were constitutionally protected. “It’s a First Amendment activity,” Justice Kennedy said.
In testy exchanges with Justice Ruth Bader Ginsburg, Mr. Bopp conceded that petition signers give up some expectations of privacy, that their signatures may not indicate a political point of view and that disclosures of such names are a commonplace occurrence in some 20 states.
“The sponsoring organizations sometimes sell or trade these lists” of names, Justice Ginsburg said. “They use them for fund-raising purposes. So that would be the end of a person’s privacy, at least on one side. Is that true, that the initiative sponsor uses these lists?”
“Yes,” Mr. Bopp said.
Justice Ginsburg added, drawing on Mr. Bopp’s briefs, that signing a petition could mean one of three things: support for the ballot measure, support for the idea that the issue in question should be put to a vote or an effort to placate a pesky solicitor.
Mr. Bopp denied endorsing the third view, prompting Justice Ginsburg to read a snippet from one of his briefs saying that people may “simply sign to avoid any further discussion with a petition circulator.” That caused Mr. Bopp to reverse course.
Justice Scalia suggested that even secret ballots in ordinary elections were a matter of legislative choice rather than constitutional principle. For the first century of the nation’s existence, he said, voting was public.
Attorney General Robert M. McKenna of Washington, who was defending his state’s open records law, said the question was an open one.
A number of news organizations, including The New York Times Company, filed a brief in the case, arguing that the petitions should be treated as public records.
Only Justice Samuel A. Alito Jr. appeared consistently sympathetic to the argument in favor of secrecy. He pressed Mr. McKenna about just how much information the government could collect and disclose.
Mr. McKenna said it depends, later adding that the names of people who signed similar petition forms in Arkansas, Florida and Massachusetts were made public without incident.
Chief Justice John G. Roberts Jr. appeared skeptical of adopting an across-the-board First Amendment principle requiring secrecy. But he did suggest that courts could address particularly fraught situations case by case without adopting a general rule applicable to all petitions.
On the broader point, though, Justice Scalia seemed to capture the mood of the court. “You are asking us,” he told Mr. Bopp, “to enter into a whole new field where we have never gone before.”