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Doe v. Reed, No. 11-35854 ( Before: Harry Pregerson, A. Wallace Tashima, and N. Randy Smith, Circuit Judges. Opinion by Judge Tashima; Concurrence by Judge N.R. Smith)
Plaintiffs Protect Marriage Washington (“PMW”), John Doe #1, and John Doe #2 (collectively, “Plaintiffs”) seek to enjoin Defendants, the Secretary of State and Public Records Officer of the State of Washington, from releasing the names of people who signed petitions supporting a Washington referendum. These petitions are already widely available on the internet. We dismiss this case as moot because we cannot grant Plaintiffs effective relief.
Washington Secretary of State / From Our Corner: “Judge Richard Hicks of Thurston County Superior Court has just lifted the ban on releasing initiative petitions under the state’s Public Records Act. His decision does not allow release of Referendum 71 petitions, however, since those are still the focus of a federal lawsuit brought by foes of same-sex marriage, and the federal judge has released a ban on release at this point.”
Blog of LegalTimes: “A court battle over releasing the names of petition signers on a Washington gay marriage-related referendum has moved from the U.S. Supreme Court to a federal district court. U.S. District Judge Benjamin Settle on Wednesday ordered the state of Washington to keep private the names and addresses of signers of the referendum to repeal the state’s domestic partnership law.”
“Today, a federal judge entered an order preventing Washington from releasing the names and addresses of individuals that signed a referendum petition to repeal Washington’s “everything but marriage” domestic partnership law.”
Seattle Post-Intelligencer / Strange Bedfellows: “The secretary of state’s office said [Protect Marriage Washington] is again taking their arguments to Judge Benjamin Settle, who last September blocked release of the names of people who signed Referendum 71 petitions. That ruling set in motion the court case that ended up at the nation’s highest court. … Deputy Solicitor General Bill Collins, who is representing the Secretary of State in the ongoing Doe v. Reed litigation, reports that U.S. District Judge Benjamin Settle has dismissed all pending motions in the R-71 public records case. He will await the official paperwork from the U.S. Supreme Court regarding its recent 8-1 opinion in the case and transferring jurisdiction back to his courtroom. At that point, Protect Marriage Washington will be able to re-file fresh motions to block release of the R-71 petitions.”
Federalist Society SCOTUScast: “On June 24, 2010, the Supreme Court announced its decision in Doe v. Reed. In this case, the Court was asked whether compelled disclosure of signatory information on a referendum petition violated the First Amendment. … To discuss the case, we have the Capital University Law School Josiah H. Blackmore II and Shirley M. Nault Designated Professor of Law Bradley A. Smith.”
WorldNetDaily: “Arguing death threats have a significant ‘chilling’ effect on free speech, an attorney representing supporters of Washington state’s traditional-marriage referendum says he’s confident a lower court will decide to protect their names and addresses. … The U.S. Supreme Court ruled last week it would not issue a blanket ban on the release of signatures on petition documents. The high court, however, explained its decision did not prevent the Washington state petition signers from gaining an exemption from public disclosure at the lower court. … [CWA] was one of many [organizations] that filed friend-of-the-court briefs in the Washington state case. Other groups included Liberty Counsel, Cato Institute, Institute for Justice, Alliance Defense Fund, American Center for Law and Justice and the Justice and Freedom Fund.”
When it comes to online smut, privacy matters; when it comes to political speech, it doesn’t, says U.S. Supreme Court
ChristianNewsWire: “Robert Peters, president of Morality in Media, had the following comments: … ‘In June 2004, the Supreme Court affirmed a lower federal court decision which had upheld a preliminary injunction blocking enforcement of the Child Online Protection Act, a law that would have required websites that commercially distribute pornography to take reasonable steps to keep kids away from the smut. In so doing, the Supreme Court agreed with the trial court’s finding that “blocking or filtering technology may be at least as successful as COPA would be in restricting minors’ access to harmful material online without imposing the burden on constitutionally protected speech that COPA imposes on adult users…” Specifically, the trial court found (in the words of the appellate court) that requiring adults to ‘identify themselves as a precondition to accessing disfavored speech’ would ‘likely…deter many adults from accessing that speech.”‘”
Ken Klukowski writing at Townhall: “[The] Supreme Court dealt a setback to supporters of traditional marriage. But it’s not the defeat that gay-rights supporters (and many of their fans on the media) are hailing it as, and leaves open the possibility that traditional-marriage supporters may be the ones celebrating at the end. … The record of atrocious harassment in the wake of California’s Proposition 8 makes perfectly clear that these marriage supporters can make a strong case that they could be harassed. As such, by the standard the Court announced today, the marriage supporters should win.”
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.
SCOTUSblog: “[E]leven argued cases are still pending and are expected to be decided before the end of the Term.” …
Christian Legal Society v. Martinez (08-1371)
Doe v. Reed (09-559)
Baptist Press: “The U.S. Supreme Court will protect the identities of supporters of a state initiative to defend marriage in spite of the apparent skepticism of one of its most conservative justices, predicted religious freedom lawyer [Jordan Lorence] . . . ‘I think we’re going to get a favorable decision,’ Lorence said. It might be narrower than the original lawsuit requested, ‘but I think the names will not be disclosed,’ he said.”
Tom Goldstein writes at SCOTUS Blog: “But the Doe v. Reed argument identified an extremely strong fifth vote: Justice Scalia. In that argument, Justice Scalia expressed the strong view that disclosure requirements do not implicate significant First Amendment concerns. To the concern that disclosure could deter expression, Justice Scalia responded, ‘[T]he fact is that running a democracy takes a certain amount of civic courage.’”
WorldNetDaily: “The U.S. Supreme Court is considering a case that could allow the names and addresses of opponents of a measure granting benefits of marriage to same-sex partners to be posted on the Internet, where radical homosexuals could target them with verbal assault – or much worse . . . Other groups [besides CWA] that [filed briefs] included Liberty Counsel, Cato Institute, Institute for Justice, Alliance Defense Fund, American Center for Law and Justice, and the Justice and Freedom Fund.”
Jacob Sullum writing at Reason Magazine: “From reading New York Times editorials, I gather that the First Amendment protects celebrities who curse on TV and pit bull enthusiasts who sell dogfighting videos. Yet somehow it does not protect conservative activists who hate Hillary Clinton, Christian student groups that exclude people who engage in extramarital sex, or petition signers who fear harassment if they are publicly identified as opponents of gay marriage.”
Metro Weekly: “Scalia was – unsurprisingly – the most pointed in his questions but, more surprisingly to some, found himself on the same side of the argument as those LGBT groups and opposing the briefs filed by the Alliance Defense Fund and the National Organization for Marriage.”
Tom Goldstein writing at the SCOTUS Blog: “I happened to be in the courtroom today for the argument in Doe v. Reed, which was Justice Stevens’ last argued case. Early reporting and commentary on the decision – with which I agree entirely – has been that the Court will affirm by a wide margin the Ninth Circuit’s refusal to grant the particular injunction now before the Court. But it does not follow, as some have thought, that the courts will in fact allow the lists of petition signatories to be released. In fact, I think there is a significant chance they will not . . . ”
Washington Post: “Supreme Court justices appeared skeptical Wednesday about keeping secret the names of people who signed a petition to repeal Washington state’s gay rights law, suggesting citizens cannot always hide behind anonymity if they want to be heard . . . ”
Tony Mauro writes at the National Law Journal: “It was quite a morning for the First Amendment at the Supreme Court, as the justices handed down a major church-state decision and heard oral arguments in a case testing issues of free speech, the right to petition and the right of privacy. It was a historic morning for another reason: barring the unforeseen, it was Justice John Paul Stevens’ final day of hearing oral argument as a justice . . . ”
Lyle Denniston writes at the SCOTUS Blog: “Justice Antonin Scalia, using history, sarcasm and political taunts, laid down a barrage of objections Wednesday to a plea that the Supreme Court create a new constitutional right of anonymity for individuals who sign petitions to get policy measures onto election ballots. When he was finished, the strong impression was that it might be exceedingly hard to gather a five-vote majority to establish such a right, even though the plea got the fervent support of Justice Samuel A. Alito, Jr., and some implied help from Chief Justice John G. Roberts, Jr. The oral argument was in John Doe # 1, et al., v. Reed, et al. (09-559).”
Neighbor against Neighbor: What right does the state have to reveal your signature on a political petition?
Dick Carpenter writes at the Wall Street Journal: “Today the Supreme Court hears arguments in Doe v. Reed. The case is about ‘mandatory disclosure’—that is, whether the state of Washington may publicly release the names and addresses of citizens who signed a petition to place a referendum on domestic partnership legislation on the ballot . . . In short, my research reveals that forcing people to comply with disclosure rules in order to exercise their First Amendment rights means many will stay silent or uninvolved—with little or no benefit to the public. Mandatory disclosure laws don’t inform voters; they squelch speech.”
Law.com: “This is the final week of argument for the U.S. Supreme Court with four cases left on the docket and dozens more still to be decided. The week also marks the last time Justice John Paul Stevens is expected to hear arguments with his fellow justices . . . On the last day of arguments, two important policies clash in John Doe No. 1 v. Reed, said media law scholar Lyrissa Lidsky of the University of Florida Levin College of Law . . . [The petition signers] are supported by a large number of conservative social and legal organizations, such as the Family Research Council and Alliance Defense Fund.”
Everett Daily Herald: “On Wednesday, the U.S. Supreme Court will hear lawyers argue why those names should be kept secret forever . . . In its filing, the Alliance Defense Fund, whose lawyers focus on civil liberties and religion cases, contends that ‘fear of harassment at the hands of pressure groups … discourages people from signing petitions.’”
Seattle Times: “The case could decide whether signing a petition for a ballot measure is private or whether the names of signers can be made public.”
Catholic News Agency: “In an effort to prevent traditional marriage supporters from being targeted and harassed, lawyers in Washington state have filed a brief with the Supreme Court to keep the personal information of over 138,000 people private. Arguments will be heard before the U.S. Supreme Court on April 28.”
USA Today: “‘The shift in the nature of the free-speech plaintiffs has been going on for some time,’ adds Stanford law professor Michael McConnell, who represents a group of Christian students in a separate case. The students are challenging a decision by a California state law school to deny their group campus privileges because it excludes gay men and lesbians. ‘It has to do with who has power,’ McConnell says. ‘Certainly universities and a lot of state and local governments are dominated by leftists.’ Many of the groups siding with the conservative speakers represent conservative religious interests, such as the United States Conference of Catholic Bishops, in the Hastings case, and Alliance Defense Fund, in the Washington state case.”
Earned Media: “Sharon F. Blakeney, an allied attorney with the Alliance Defense Fund and counsel for Concerned Women for America in filing their Amicus Brief, stated, ‘If the names and personal information of the voters who signed the R-71 petition are released and published on the Internet, they will be subjected to torment and intimidation by homosexual activists from all corners of the globe. Signing the R-71 petition was essentially casting a vote on the ultimate issue, and the signatures, home addresses, and all other personal information on the petition should be treated with the Constitutional protections and confidentiality of a secret ballot.’”
Concerned Women for American Press Release: “Concerned Women for America (CWA) filed an Amicus Curiae brief in the United States Supreme Court today in support of Protect Marriage Washington in its case currently pending before the Court, Doe #1, Doe #2 and Protect Marriage Washington v. Reed et al . . . Sharon F. Blakeney, an allied attorney with the Alliance Defense Fund and counsel for Concerned Women for America in filing their Amicus Brief, stated, ‘If the names and personal information of the voters who signed the R-71 petition are released and published on the Internet, they will be subjected to torment and intimidation by homosexual activists from all corners of the globe.’”
Liberty Counsel: “Today, Liberty Counsel filed an Amicus Brief with the United States Supreme Court supporting the privacy of proponents who signed a petition in favor of Referendum 71, which placed on the ballot the question of repealing the recent law giving all the privileges of marriage to homosexual partners in Washington. ”
Seattle Post-Intelligencer (AP): “The U.S. Supreme Court has scheduled an April 28 hearing on whether Washington state can release more than 138,000 names on petitions supporting a domestic partnership referendum.”
SCOTUS Blog reports the following dates on these cases of interest:
Mon. Apr. 19 — Christian Legal Society v. Martinez (08-1371) — right of religious student group to benefits at public college without sacrificing beliefs
LA Times: “When a citizen signs a petition to place an initiative on the ballot, is he or she acting as a voter or as a legislator? How the Supreme Court answers that question will determine whether states can make the names of signers public. It’s a close call, but the court should decide in favor of disclosure.”
“Friday, the Supreme Court of the United States agreed to hear a case that asks it to decide whether the Washington Secretary of State may release the names, addresses, and other personal information of over 138,000 individuals who signed a referendum petition seeking to protect traditional marriage in Washington.”
The justices today said they will review a federal appeals court decision that authorized Washington state officials to reveal the identities of 138,000 signers of a petition to place an initiative on the ballot last year.”
Michael C. Dorf writes at FindLaw: “I do not raise the foregoing examples because I think they conclusively show that there is no First Amendment right to sign a petition for a referendum without having one’s identity disclosed to the public. Whether there is such a right appears to be an open question. But given that there are legitimate concerns about the democratic process on each side of that question, the best answer may be to let the democratic process itself resolve them. In the Doe #1 case, that would mean affirming the Ninth Circuit and denying the claimed constitutional right.”
Today, Protect Marriage Washington asked the U.S. Supreme Court to hear its case that seeks to prevent the release of the names of the 138,000 individuals who signed a Washington referendum petition in support of traditional marriage.
Click here for the ruling: Doe v. Reed, No. 09-35818 (9th Cir. Oct. 22, 2009). The ruling has been stayed pending action by the U.S. Supreme Court.
“Washington state officials have been temporarily blocked by U.S. Supreme Court Justice Anthony Kennedy from releasing the names of people who signed petitions to overturn a new law expanding gay rights.”
The application, filed with Justice Anthony M. Kennedy, is Doe, et al., v. Reed, et al. (09A356) . . . Kennedy has sought a response from state officials by this afternoon.
“The group Protect Marriage Washington, which collected nearly 138,000 signatures to qualify R-71 for the November ballot, says those people could be harassed, amounting to an infringement on their free speech rights.”
The Stranger: “The 9th US Circuit Court of Appeals agreed today to expedite a case about releasing the names and addresses of everyone who signed Referendum 71. A three-judge panel will hear oral arguments on October 14 in Pasadena, California. Each side will have 15 minutes to present their case.”
ADF attorney Gary McCaleb appeared on the Jody Hice Show to discuss the harrassment of marriage defenders in Washington state and ADF efforts to stop that.
The MP3 runs just under 18 minutes.
ADF Media information: New hotline for Wash. Referendum 71 supporters who encounter retaliation
“The Washington state attorney general’s office says it is appealing a federal judge’s decision to keep secret the names of people who signed petitions calling for a public vote on expanded domestic partnership benefits.”
Carlos Santoscoy reports at On Top Magazine: “The Christian-based legal group Alliance Defense Fund (ADF) earlier set up a Referendum 71 webpage to collect data from people who ‘have been threatened or suffered retaliation after signing an R-71 petition’ or have been prevented from signing a petition.”
“‘The State cannot allow the release of the names on the Referendum 71 petition when the purpose is to harass and intimidate people who are merely exercising their right to speak,’ Bopp stated in the release.
Bopp, Jr. of Indiana-based Bopp, Coleson & Bostrom is lead counsel in the case, according to a press release. Attorney Stephen Pidgeon of Everett, who is associated with the Alliance Defense Fund, is expected to handle today’s proceeding.”
Protect Marriage Washington Files Suit to Prevent 138,500 Names from Being Posted Online By Foes of Traditional Marriage
“Opponents have now threatened to obtain copies of the petition, which contain the name and address of each petition signer, in an effort to make them available on the internet. The clear goal of this effort is to intimidate and harass . . . Attorney Stephen Pidgeon (Bellevue, WA), an Alliance Defense Fund Allied Attorney, is serving as local counsel in the case.” (Source: Bopp, Coleson & Bostrom)
Washington State Rep. Matt Shea writing in The Spokesman-Review: “WhoSigned.org is promising to publish, on the Internet, personal information of those signing Referendum 71 to ‘prevent voter fraud’ and ‘foster discussion’ . . . Alliance Defense Fund is involved in a major lawsuit to stop such a flagrant misuse of public information. ADF has set up a hotline (1-800-655-6592) and website www.telladf.org/r71 for Washingtonians who believe they’ve suffered retaliation because their names appeared on WhoSigned.org.”
Volokh Conspiracy: “The Spokane Spokesman reports: ‘Petitions were being printed Tuesday for Referendum 71, which asks Washington voters to overturn a new law granting same-sex domestic partners many of the rights of spouses. But those who sign the petitions may be in for a surprise. Some R-71 opponents have put up a Web site -–www.whosigned.org -– where they intend to post the names of all the required 120,577 signers.’”
Lornet Turnbull writing in the Seattle Times: “Patterned after online sites in Massachusetts, Arkansas and Florida, the idea behind WhoSigned.org is generating debate inside and outside the gay community and raising questions about privacy in the democratic process and whether such tactics amount to intimidation.”
Mark Rahner reports in the Seattle Times: “[M]embers of Washington-based WhoSigned.org plan to shine a light on those who sign petitions for Referendum 71, an attempt by religious and conservative groups to overturn the state’s 2009 Domestic Partner Expansion Bill.”