Publius and the petition: Doe v. Reed and the history of anonymous speech.

• Author: Boudin, Chesa

NOTE CONTENTS INTRODUCTION I. DOE V. REED: ANONYMOUS SPEECH VERSUS LAWMAKING IN PRACTICE II. THE HISTORY OF ANONYMOUS SPEECH A. Anonymous and Pseudonymous Speech B. Historical Practice: Public Politics and Disclosure III. ANONYMOUS SPEECH AND DISCLOSURE DOCTRINE A. Anonymous Speech Doctrine: Taller and McIntyre B. Disclosure Doctrine IV. PRUDENTIAL CONSIDERATIONS A. State Regulation Can Promote Transparency and Deter Fraud B. Distinguishing Between Speech and Lawmaking Will Foster Civic Discourse C. State Regulation and the Benefits of Policy Experimentation CONCLUSION INTRODUCTION

A signature on a petition page can have myriad meanings, depending on the content and purpose of the specific petition. Signing "I oppose the war in X" might be the act of a protestor wishing to demonstrate how unpopular a war is. Signing a petition that reads "I want to invite Y as homecoming band" might be the act of a student seeking to lobby school administrators. "I join group Z" might be a simple membership rite or a voicing of support for an embattled or unpopular organization. In contrast, signing a petition that states "I support a ballot initiative to repeal a law" might be considered a regulated part of the state or local legislative process. It is this last petition that is the central inquiry of this Note: Are signatures gathered for direct democracy initiatives part of the government lawmaking process and therefore subject to transparency and disclosure laws? Or are they, like so many other petitions, protected speech?

The central argument of this Note is that signatures on petitions as part of ballot initiatives and similar processes can be subject to public scrutiny and disclosure; they should not benefit from free speech protections allowing for anonymity. Put differently, signatures used in direct democracy proceedings should not be considered petitions or speech at all, but rather lawmaking. The implications of this argument for future court decisions are far-reaching: judges should not analyze disclosure of legislative petitions using strict scrutiny under First Amendment doctrine but rather under a more deferential standard of review similar to that applied to other state electoral regulations. (1)

This issue has vast real-world implications; speech activity benefits from broad First Amendment protections while lawmaking and legislative procedures are highly regulated. Moreover, ballot initiatives and other forms of "direct democracy" play an increasingly prominent role in state and local politics. (2) At least twenty-seven states have provisions that make ballot initiatives or popular legislative action possible through the collection of signatures. (3) Ballot initiatives through signature collection on petitions are also a feature of local government. (4) While direct democracy initiatives often target mundane issues like public spending or taxation, (5) they are also used to settle state law on controversial national issues including gay rights, (6) affirmative action, (7) and marijuana legalization. (8) This Note's argument thus has significant implications for the regulation of the direct democracy legislative processes that already are, and surely will continue, defining the states' approaches to pressing national issues.

Direct democracy processes were largely rejected at the Founding in favor of representative democracy. (9) Nevertheless, direct democracy gained popularity in the Progressive Era as a way to empower the people by giving them an added check on their elected representatives or "big business" and "big government" generally. (10) For example, the Washington State Constitution was amended in 1912 to read:

The legislative authority of the state of Washington shall be vested in the legislature ... but the people reserve to themselves the power to propose bills, laws, and to enact or reject the same at the polls, independent of the legislature, and also reserve power, at their own option, to approve or reject at the polls any act, item, section, or part of any bill, act, or law passed by the legislature. (11) The right to legislate through initiative and referendum is neither unrestricted nor constitutionally required. (12) It should come as no surprise that ballot initiatives are limited to eligible voters and required to conform to jurisdiction-specific procedural guidelines. (13) But to what extent can state or local governments regulate petition-based ballot initiatives--especially with regard to disclosure?

Using a First Amendment lens to analyze a state's ability to regulate the legislative process will inevitably lead to confusion and misguided outcomes. The goal of this Note is to distinguish between pure speech, which might include a signature on a generic petition with no legislative implications, and speech-like activity that forms part of the lawmaking process and should be transparent and subject to disclosure. (14) The states should be able to determine, within broad constitutional bounds, the extent of the disclosure requirements. The argument here is not for a specific policy approach to disclosure provisions but rather for a distinction between lawmaking and speech.

This Note seeks to help alleviate the tension between anonymous speech and disclosure in the context of direct democracy by analyzing a recent Supreme Court case, historic practice, and judicial doctrine. Part I describes the facts, procedural posture, and outcome of Doe v. Reed (15) to give context to the broader theoretical argument in subsequent Parts. Part II reviews the history of anonymous speech and public politics in the United States. This Part marshals the practice, understanding, and experience of the Founding generation to illustrate that the history of anonymous speech does not support efforts to participate in modern-day lawmaking anonymously. On the contrary, a vibrant history of transparent and public lawmaking bolsters the notion that direct democracy initiatives should be subject to disclosure. Part III analyzes doctrine at the intersection of free speech and election law to clarify precedential principles and argue for disclosure. This Part shows why anonymous speech doctrine does not and should not apply to direct democracy processes and why disclosure doctrine does. Part IV weighs the evidence presented in the first three Parts. Through prudential analysis, this Part considers the implications of the Note's position and engages counterarguments.

1. DOE V. REED: ANONYMOUS SPEECH VERSUS LAWMAKING IN PRACTICE

   The Supreme Court recently had the opportunity to decide a case at the heart of this Note's inquiry. Unfortunately, the opinion in that case does not adequately resolve the issues germane to this Note. This Part briefly describes the circumstances that brought Doe v. Reed to the Supreme Court. It then analyzes the Court's decision in Reed and focuses on the ways in which the Court neglected to resolve the core problem presented. The Justices in Reed did not establish a clear rule of law that can resolve direct democracy cases certain to emerge in the future. But first it is important to set out the facts.

   In May 2009, the governor of Washington signed into law the so-called "everything but marriage" bill that would allow for civil unions for gay couples. (16) Just seven months later, the Supreme Court granted certiorari in Reed. (17) In granting certiorari, the Court did not intend to speak to the issues surrounding the national domestic partnership debate but rather to hear a tangential issue arising out of the unique circumstances of the Washington state initiative process. Reed presented a fascinating and complex First Amendment constitutional challenge to a Washington state public disclosure law.

   After the "everything but marriage" bill was signed into law, a group called Protect Marriage Washington (PMW) sought to roll back the gay rights legislation through referendum. (18) PMW sought a 2009 ballot referendum on the legislation so that the law would require voter approval before going into effect. (19) In order to initiate the referendum process, Washington law requires that petitions must be filed with Washington's secretary of state; those petitions must contain the valid signatures of registered Washington voters in a number at least equal to four percent of the votes cast for governor in the immediately preceding election. (20) Petitioners must request that each signatory sign and print her name and write the address, city, and county in which she is registered to vote. (21)

   Shortly after PMW submitted its petitions to Secretary of State Sam Reed, his office received several requests, pursuant to Washington's Public Records Act, for copies of the petitions themselves. (22) Through this kind of disclosure, nongovernmental organizations have played a central role in detecting fraud. (23) PMW, together with two unnamed plaintiffs who were signatories of the petitions, sought to enjoin release of the petitions, arguing that the disclosure requirement was unconstitutional as applied to the petition signatories because there was a reasonable probability that the referendum supporters "[would] be subjected to threats, harassment, and reprisais." (24) The district court granted the petitioners a preliminary injunction preventing the Secretary of State from releasing the petitions, but the Ninth Circuit overruled the district court on the basis that the lower court had erroneously applied strict scrutiny. (25) A few months later, the plaintiffs sought and received a writ of certiorari from the Supreme Court on whether the First Amendment rights to free speech and to privacy require strict scrutiny of a state law compelling disclosure of identifying information about petition signers. (26) In addition, the Court agreed to consider whether the lower court properly granted the preliminary injunction against disclosure of the petitions. (27)

   This case provided the Court with the...