Supreme Court speaks with divided tongue: Doe v. Reed

New York Law School Professor Arthur S. Leonard analyzes Doe v. Reed, No. 09-559 (U.S. June 24, 2010) at LeonardLink: “My quick summary – Concur by Sotomayor with Ginsburg and Stevens – it should be difficult for plaintiffs to keep the names confidential; Concur by Alito – it should be easy for the plaintiffs to keep the names confidential; Concur by Stevens and Breyer – it should be difficult for plaintiffs to keep the names confidential; Concur by Scalia – originalist view of the First Amendment and characterization of petition signers as actually being involved in ‘legislating’ means there is only a weak First Amendment interest, if any, in keeping these names confidential. So Scalia is sees no problem with the statute, as such, and is very unfavorably disposed to the second claim. Dissent by Thomas – Strong First Amendment protection for privacy of petition signers, so statute violates the First Amendment. Interesting to see Thomas and Scalia sharply split.

In a follow-up post, Leonard offers further analysis, including this regarding Scalia’s concurrence:

To me, the most interesting opinion was, as is frequently the case, Justice Scalia’s. Scalia is a proponent of ‘originalism’ in construing constitutional text, so he provides a history lesson about referenda and voting in America. He starts from the proposition that a referendum process devoted to enacting or repealing bills is actually a form of legislating, and when individuals sign petitions to put such referenda on the ballot, they are really acting as legislators, not just voters. In that case, the Constitution tips heavily towards disclosure, since there is no tradition of conducting legislative activities in secret. Indeed, as he points out, the Constitution requires each house of Congress to publish a journal of its proceedings, recording and reporting the votes of their members on questions before the house.

Supreme Court upholds Washington signature disclosure requirement for referendums, BUT

Doe v. Reed at ScotusWiki.