FIRST AMENDMENT - DISCLOSURE OF REFERENDUM PETITIONS

United States Supreme Court

Doe v. Reed, No. 09-559 (June 24, 2010).

OVERVIEW: An open-records statute that requires the disclosure of referendum petitions in general does not facially violate the First Amendment because the interests of compelled disclosure outweigh any privacy interests of the petition signers. The matter was remanded to determine whether the disclosure of specific petitions would violate the First Amendment.

SUMMARY: This case pits the disclosure of public records with First Amendment and privacy rights. The petitioners in this case signed petitions advocating that a referendum be placed on the ballot opposing the expansion of rights in Washington State for state-registered domestic partners, including same-sex partners. After the Secretary of State verified the petitions and qualified the referendum, respondent interveners invoked Washington's Public Records Act (PRA) -- which is equivalent to the Illinois FOIA -- to obtain copies of the petitions, which contained the signers' names and addresses. Out of fear of retaliation for signing the petitions, the petitioners filed suit to prevent the Secretary of State from releasing their private information. The petitioners argued that the PRA violates the First Amendment as applied to referendum petitions in general. Determining that the PRA burdened core political speech under the First Amendment, the district court held that the plaintiffs were likely to succeed on the merits of their claim, and therefore, the district court granted a preliminary injunction preventing the release of the information. The Ninth Circuit held that the plaintiffs were unlikely to succeed on the merits that the PRA is unconstitutional as applied to referendum petitions in general, and therefore reversed.

The Supreme Court first determined that the issue in this case was not whether disclosure of this particular petition would violate the First Amendment, but whether disclosure of referendum petitions in general would do so. In examining the scope of the challenge, the Court determined that the petitioners were required to satisfy the Court's standards for a facial challenge to the PRA because, if the petitioners won this battle, the relief would reach beyond the particular circumstances of these plaintiffs. The Court then determined that this case does implicate a First Amendment right because an individual's signature on a petition expresses a political viewpoint. Nevertheless, the interests of preserving the integrity of the electoral process by combating fraud, detecting invalid signatures, and fostering government transparency and accountability outweigh the petitioners' privacy interests. Therefore, the Court held that the disclosure of referendum petitions in general do not violate the First Amendment. The Court, however, remanded the case back to the district court for a determination of whether disclosure of the information in this particular petition would violate the First Amendment.