Blown To Bits

Privacy and Petitioning

Friday, June 25th, 2010 by Harry Lewis

A fascinating case has been before the US Supreme Court this spring. Opponents of a gay civil union statute in Washington state petitioned to place its repeal on the ballot so voters could have the last word. Backers of the law asked the Secretary of State to declare the names of the petitioners a public record and post the names on the Web. The petitioners sued the state to prevent publication, saying they feared harassment.

It’s a wonderful puzzle. Both sides claim their free speech rights are at stake: the one side holding that the names are really part of the legislative process for which transparency is essential; and the other side arguing that their capacity to speak freely requires a level of anonymity. It’s an Internet-created issue, because although petitions have been around for centuries, until now it would have been impossible to publish them quickly enough to influence an election, and to sort and analyze them effectively enough to be a serious privacy threat.

The court’s decision is at once one-sided and inconclusive. By an 8-1 vote the court decided the immediate question before it: Petitions are, generally speaking, public. But the near-unanimity is only superficial, and may not even settle the question of the case at hand. Most, but not all, of the 8 allowed that there might be circumstances—some credible risk of harm, for example—under which petitioners would have a right to keep their names from being published. So the case goes back to a lower court, but may rise back up again.

What is most interesting is that the views of the justices cut obliquely across the usual liberal-conservative lines. In fact, the justice who is the most dismissive of any privacy right, and the sole justice who would have made privacy the norm, not the exception, are the two most conservative justices, Scalia and Thomas, who rarely split their votes on anything. Scalia called for “civic courage, without which democracy is doomed,” and added that he does “not look forward to a society which … exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism.” Thomas held with equal conviction that routinely publishing the names of petition signers would unacceptably chill free speech through a loss of “associational right to privacy.”

A case of the Internet confusing the traditional alignments on free speech issues.

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