The near-unanimity of the decision masked a deep division on a more focused question that the justices left for another day: Are there good reasons to protect the identities of people who signed petitions concerning a measure opposing gay rights and say they fear harassment and retaliation should their names be posted on the Internet?
The case came from Washington State, which allows voters to reject legislation through a referendum process. Last year, opponents of a state domestic partnership law known as the “everything but marriage” act gathered more than 130,000 signatures, enough to place a referendum on the November ballot.
Several groups had asked the state to turn over the names under its public records law, and two groups said they intended to post the names on the Internet. Their goal, according to a news release, was to encourage conversations among friends, relatives and neighbors that “can be uncomfortable for both parties.”
Protect Marriage Washington, a group that supports traditional marriage, sued to block release of the names, saying disclosure would probably result in “threats, harassment and reprisal.” It relied in large part on responses to the disclosure of the names of people who had provided financial support for Proposition 8, the California ballot initiative that overturned a court decision allowing same-sex marriage.
A federal judge granted the request to withhold the names, but that order was overturned by a three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco.
In October, the Supreme Court intervened at an unusually early stage, staying the Ninth Circuit’s ruling. That had the effect of blocking disclosure of the names through the election in November. The effort to overturn the everything-but-marriage act failed.
In Thursday’s ruling, Chief Justice John G. Roberts Jr., writing for the most part for seven justices, said the case had arrived at the court in a posture that presented only the easier of two questions. That question was whether there is a general First Amendment right to anonymity in signing ballot petitions of all sorts.
Eight justices agreed that there is not. Justice Clarence Thomas dissented.
The court sent back to the lower courts the harder question of whether the petitions concerning particularly controversial measures may warrant protection.
As a general matter, Chief Justice Roberts said, there are good reasons to allow disclosure, including the role it plays in preserving the integrity of elections.
“Public disclosure,” he wrote, “can help cure the inadequacies of the verification and canvassing process,” he wrote. It can also help prevent some kinds of fraud, including “outright forgery and ‘bait and switch’ fraud, in which an individual signs the petition based on a misrepresentation of the underlying issue.”
“The signer,” the chief justice wrote, “is in the best position to detect these types of fraud, and public disclosure can bring the issue to the signer’s attention.”
The majority said the available evidence suggested that the names of people who signed ordinary ballot petitions had been released without incident. Given that, Chief Justice Roberts wrote, it was appropriate to uphold the public records law “against a broad-based challenge” without foreclosing narrower challenges.
Justice Samuel A. Alito Jr., whose distaste for disclosure of the particular names at issue in the case was evident at the argument of the case in April, issued a vigorous concurrence arguing that a narrower challenge should succeed.
Justice Alito said challengers should have to prove only a reasonable probability of harassment and should be able to rely on all sorts of evidence to do so.
“The widespread harassment and intimidation suffered by supporters of California’s Proposition 8 provides strong support for an as-applied exemption in the present case,” he wrote, reminding his colleagues that they had in January barred the closed-circuit broadcast of the trial of a lawsuit challenging the proposition based in part on fear that witnesses would be harassed.
Justice Alito said that adding the names of petition signers to the vast amount of personal information about them available on the Internet makes the potential for harassment dangerous.
The court’s more liberal members — Justices John Paul Stevens, Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor — were skeptical in a pair of concurrences about whether a narrower challenge should succeed.
Public disclosure of such information is both routine and valuable, they said, and the burdens imposed by it on First Amendment rights are minimal. For a challenge to succeed, Justice Stevens wrote for himself and Justice Breyer, “there would have to be a significant threat of harassment directed at those who sign the petition that cannot be mitigated by law enforcement measures.”
Justice Scalia, in his own concurrence, was the most skeptical of all. He said it was not clear that petition signers deserved any First Amendment protection.
“Harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance,” he wrote. “Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.”
Justice Thomas was the only dissenter in the case, Doe v. Reed, No. 09-559. He said that subjecting “referendum-petition signatures to on-demand public disclosure” violated the First Amendment regardless of the subject matter of the measure at issue.