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Art Leonard Observations

Federal Judge Allows Disclosure of Anti-Gay Petition Signers

Posted on: October 18th, 2011 by Art Leonard No Comments

Another chapter has been written in the long-running saga over the disclosure of the names and addresses of those who signed petitions in the state of Washington to put a measure on the 2009 general election ballot attempting to repeal a newly-enacted state law expanding the rights of same-sex domestic partners. 

The statute was delayed in going into effect until the vote was held, when a small but comfortable majority of Washington voters cast their ballots in favor of the challenged statute, which then went into effect.  On October 17, 2011, two years later, U.S. District Judge Benjamin H. Settle, who had initially ruled that it would violate the rights of petition signers to make their names and addresses public as required by state law, lifted his preliminary injunction, concluding that plaintiffs had failed to show that their 1st Amendment rights would be violated by such disclosure at this time.

The ruling in Doe v. Reed, Case No. C09-5456BHS (W.D.Wash.), was not entirely unanticipated, in light of the meager evidence presented by the plaintiffs when they were finally required to prove that disclosure would most likely subject petition signers to serious harassment or danger.  Judge Settle was ruling on cross-motions for summary judgment, filed after plaintiffs had an opportunity to present their case through deposition and documentary evidence.  The case had already been to the U.S. Supreme Court, which had affirmed the 9th Circuit's decision to reject Judge Settle's ruling that disclosure of any referendum or initiative petition is unconstitutional "as a general matter."  Doe v. Reed, 130 S.Ct. 2811 (2010).  The Supreme Court found that the state has a strong interest in transparency in the initiative process, and unless petition signers could show that they would be subject to serious harm from disclosure of their identities, the balance of First Amendment interests weighed against them.

Thus, on remand, the issue was clearly framed.  Plaintiffs could only prevail in keeping their identities "secret" if they could credibly show that serious harm would flow from disclosure.  Several of the "John" and "Jane Doe" plaintiffs testified in depositions about their experiences in petitioning for signatures, testifying against the partners' rights bill in the legislature, or voting against it as legislators.  Virtually all of the deponents were publicly known as supporters of the repeal referendum, R-71, but apart from some public expressions of disapproval and heated exchanges, none of which amounted to much, none of the deponents testified that they lived in great fear of retribution from opponents of R-71, or that they were frightened of what might happen were their status as petition-signers disclosed. 

Actually, Judge Settle pointed out, there was another, likely overlapping, set of people whose experiences would have been much more relevant.  It seems that state law also required disclosure of the identifies of people who donated money to support the organization that was formed to petition for signatures and campaign for repeal of the partners' rights law, and it would seem most pertinent to know whether donors whose names were disclosed suffered serious retribution because of their support for the repeal referendum.  Yet counsel for plaintiffs made no effort to depose them or offer any testimony about their experiences, to the extent that they included people who were not already testifying as plaintiffs in this case.  Most of the documentary evidence submitted to the court concerned actions by opponents of California Proposition 8 to exact retribution against people who had supported that measure, and evidence of violence or serious harm arising from those activities was scant.

Plaintiffs were up against a body of Supreme Court precedent that made their task rather difficult.  The case law mainly involves situations where the Court ordered exceptions to state disclosure laws in circumstances involving "minor parties" that took very unpopular positions, such as the Socialist Workers Party, or a famous case involving the NAACP (National Association for the Advancement of Colored People) during the early years of the civil rights movement, where there was persuasive evidence that a state law requiring disclosure of the membership of non-profit organizations was likely to lead in the case of NAACP to serious harassment and harm to the organization's members, effectively voiding their First Amendment rights of freedom to associate to advance political goals.

In this case, Judge Settle found, the proponents of repealing the state partners' rights law were not a "minor party" or similar political association whose existence would be threatened by disclosure of the identity of petition signers.   Such protection against disclosure in past cases was extended to "fringe" organizations with "unpopular or unorthodox beliefs" who were seeking to "further ideas that have been 'historically and pervasively rejected and vilified by this country's government and its citizens.'"  Indeed, this case has been virtually decided already by another district court in ProtectMarriage.com v. Bowen, 599 F.Supp. 2d 1197 (2009), in which the proponents of Proposition 8 failed to block disclosure of the identity of people financially supporting the campaign to enact Proposition 8 in California.

As to the evidence of potential harm, wrote the judge, "Doe has provided the Court with a mountain of anecdotal evidence from around the country that offers merely a speculative possibility of threats, harassment, or reprisals," but that evidence failed to meet the requirement that it be "specifically and directly related to a group or organization" with a direct tie to people who signed petitions for R-71. 

Looking to the Supreme Court's prior ruling in this case, and especially to the concurring opinions, which explored in greater depth than the opinion for the Court the issue of what plaintiffs would have to show in order to qualify for an exception to the general rule of disclosure, Judge Settle found that the plaintiff's burden was to provide evidence of "serious and widespread harassment that the State is unwilling or unable to control" (quoting from Justice Sotomayor's concurring opinion) or "strong evidence before concluding that an indirect and speculative chain of events imposes a substantial burden on speech" (quoting from Justice Stevens' concurring opinion). 

"Applied here," wrote Settle, "the Court find that Doe has only supplied evidence that hurts rather than helps its case.  Doe has supplied minimal testimony from a few witnesses who, in their respective deposition testimony, stated either that police efforts to mitigate reported incidents was sufficient or unnecessary."  In sum, plaintiffs just failed to make their case, and, given the passage of time, the defeat of R-71, and the cooling of tempers, it appears highly unlikely that disclosure at this point would pose any serious risk, especially as the publicly known supports of repeal all testified that they had not suffered any harmful retribution apart from some empty threats and offensive gestures.

"If a group could succeed in an as-applied challenge to the [Public Records Act] by simply providing a few isolated incidents or profane or indecent statements, gestures, or other examples of uncomfortable conversations that are not necessarily even related or directly connected to the issue at hand," wrote Settle, "disclosure would become the exception instead of the rule. . . . The right of individuals to speak openly and associate with others who share common views without justified fear of harm is at the very foundation of preserving a free and open society," wrote Settle, but "the facts before the Court in this case, however, do not rise to the level of demonstrating that a reasonable probability of threats, harassment, or reprisals exists as to the signers of R-71, now nearly two years after R-71 was submitted to the voters in Washington State."

Upon learning of the judge's ruling, the state immediately made the list of petition signers publicly available and it was quickly picked up by the Associated Press, so the cat is now out of the bag.  Spokespersons for the plaintiffs vowed to appeal to the 9th Circuit, apparently not having learned the lesson yet from losing their prior appeal to the Supreme Court.  And, of course, now that the names have been disclosed, the case may well be moot as regards any further appeal.

On the one hand, this decision is an important ruling for transparency in the initiative and referendum process for next time around.  On the other hand, the proponents of R-71 were able to attain their short term goal by stalling the disclosure of the names and identities of the petition-signers until long after they would be relevant in the context of the immediately pending vote on R-71.  Thus one aspect of democracy was stymied as the judicial process slowly ground to a decision with temporary injunctive relief in place when the disclosure of the information might have been most useful politically to supporters of the partners' rights law.   But proponents of repeal lost the vote, showing that ultimately the forces opposed to legal recognition for same-sex couples are fighting a losing, rearguard battle as society moves on with increased public support for such recognition. 

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