Should signing a petition be a confidential act?

Please note that this post is from 2010. Evaluate with care and in light of later events.

The Supreme Court has accepted a new case on to its docket, John Doe #1, et al., Petitioners v. Sam Reed, Washington Secretary of State, et al.:

The core constitutional issues in the case are whether signing a ballot measure petition is a form of political speech, whether, if it is protected by the First Amendment, it includes a right to sign without official public disclosure, what standard is to be applied when judging regulation of such a First Amendment right, and what government interest supports disclosure rather than confidentiality for signers’ identities.

via SCOTUSblog » Court to rule on petition-signers’ rights.

Opponents of gay marriage and similar laws argue that the state should not release the names of those who sign petitions (such as those supporting their position), because doing so might make signers targets and thus stifle their sense of freedom to freely express their opinions. (The argument is, in essence, the core of why we have secret ballots in actual voting.) Exposing signers to potential harassment for their views, then, would stifle their ability express their political views by signing petitions they support.

But is this really a free speech issue? That is, should anonymity of expression be protected as part and parcel of the First Amendment? After all, we’ve seen a number of instances where corporations and governments have tried to force journalists to reveal their anonymous sources, and have even jailed journalists who refuse. And many of us have witnessed or experienced the de-anonymizing influence of the modern Internet, where everything posted online tends to become public. So how can signing a petition –usually in a public place, often with witnesses — give you protected anonymity? Is this even a Constitutional issue at all?

The Supreme Court has granted protections in the past to anonymous communications as part of First Amendment protections of free speech. For example, in In McIntyre v. Ohio Elections Commission, the Supreme Court struck down an Ohio law that prohibited the anonymous distribution of campaign literature, writing:

Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority. … It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation — and their ideas from suppression — at the hand of an intolerant society.

First Amendment law can be complicated, and involves balancing a number of factors. In addition, there is a difference between government involvement (in this case, Washington acting as a state to enable publication of names), private actions (your employer discovering your anonymous criticisms of the company, and firing you), and court involvement (subpoenas, rulings that order journalists to reveal sources in court, and so on).

Personally, I always assumed (without ever giving it any deep thought or legal analysis) that my signature on a ballot initiative was a public record. After all, I’m signing it in public, it needs to be verified as legitimate to count, I’m providing my name and address — it certainly never felt anonymous to me. That’s why I always insist on reading what I’m signing, considering the issues, and only signing what I actually agree with, instead of signing just to make the petition-gatherer go away.

So my gut tells me that such signatures should be public, but only because I always assumed they were anyway. I’ll be curious to see where the Supreme Court comes down on this, since the lower courts have gone both ways.

For more on this, see:

• U.S. Supreme Court could be next stop for R-71 from the Seattle P-I, quoting legal scholars giving their opinions
• Ninth Circuit Overturns Preliminary Injunction Restraining Release of Names of Anti-Domestic-Partnership Petition Signers in Washington State at The Volokh Conspiracy
• The Ninth Circuit decision that concluded that Washington could release the names of signers in the interest of transparency and accountability, and that this was not a question of “anonymous free speech” anyway, since signing a petition was not anonymous at all.