Out of court

Thursday, June 24, 2010

Sign a petition and stand by your position.

Today the U.S. Supreme Court ruled that Washington's Public Disclosure Law does not violate the First Amendment rights of people who sign petitions to change the law. Doe v. Reed involved the referendum to repeal the law giving same-sex couples some of the same rights and benefits heterosexual couples get. That referendum was later rejected by 53% of the voters; i.e., the same-sex couples law was upheld..

Before that election when the referendum supporters had enough signatures to get the issue on the ballot, opponents of the referendum filed for disclosure of the names of the referendum signers. Under state law, the signers' names and addresses on successful petitions are considered state documents and subject to public disclosure. The signers objected, arguing their right to freedom of expression would be chilled by the potential for harassment for their position. A federal district judge in Tacoma agreed and issued an injunction barring release of the names. In an 8-1 decision the court reversed, and Chief Justice Roberts wrote: "disclosure requirements may burden the ability to speak, but they do not prevent anyone from speaking .."

Justice Sotomayor concurred with that reasoning: "for persons with the "civic courage" to participate in this process, the State’s decision to make accessible what they voluntarily place in the public sphere should not deter them from engaging in the expressive act of petition signing." Although the Court threw out the First Amendment challenge, it left open the possibility that the referendum signers might still prevent disclosure if they could qualify for an exemption under the Public Disclosure Law. As Justice Stevens in his concurring opinion noted: "there would have to be a significant threat of harassment directed at those who sign the petition that cannot be mitigated by law enforcement measures" for disclosure to be granted..

The referendum signers wanted to remain anonymous because they 'feared' harassment from the other side. I'm not sure that's what was really going on. I think they wanted to hide their biases and prejudices against same-sex couples from ridicule. Because their attempt to 'protect marriage' is narrow minded and stupid. The fact that some adults wish to spend their domestic, private lives with the same sex has no effect upon others who choose to spend their private lives with the opposite sex. The argument that a marriage's only purpose is to sanctify the procreation and raising of children is to miss the point of love and marriage. Just because only opposite sex marriages can result in biologicial children, it does not mean others should not enjoy marriage and have an equal right to the benefits the law confers. And in any event, I know many same sex couples who are much better parents than opposite sex couples..

Of greater concern is this notion of anonymity. In the era of the internet it is much easier to express opinions anonymously behind some username. That permits the most extreme, irresponsible positions, arguing nonsense such as death panels. The notion that anonymity is sacred is wrong. Even the supposed right to a secret ballot is not that old. As Justice Scalia pointed out: "Voting was public until 1888 when the States began to adopt the Australian secret ballot. . . We have acknowledged the existence of a First Amendment interest in voting, but we have never said that it includes the right to vote anonymously." Opinions about the public policy must be openly discussed. On this I agree with Justice Scalia when he writes: "For my part, I do not look forward to a society which campaigns anonymously and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.."

If you don't have the courage to stand by your convictions, then you shouldn't sign petitions or take positions that others can hear or read in any medium. Having to withstand criticism and defending your position is part of the process. Otherwise, there is no marketplace of ideas, but just a jeering crowd of anonymous hecklers and bigots..

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