- The Washington Times - Tuesday, November 17, 2009


There’s no doubt that the right to free speech includes the right not to speak in public. A lawful government may no more compel somebody to speak than it can compel that person to attend a specific church, buy a particular brand of soap or vote for one candidate over another.

That same right to civic participation without public speech is what makes the secret ballot inviolable. And if the ballot box is secret, so should be its extension to the process of petitioning to get a matter on the ballot.

Such is the reasonable contention of anonymous petitioners in Doe v. Reed, which is among the most prominent cases the U.S. Supreme Court has under consideration for the court docket. If the high court accepts the case, it will have a tremendous chance to defend the First Amendment against state infringement.

For years, the state of Washington has allowed for new laws to be challenged by referendum if enough voters sign a petition demanding a vote. The law itself provides for petitioner names to remain confidential (except for verification of authenticity by the secretary of state). But when petitioners this year succeeded in putting on the statewide ballot a challenge to the state’s so-called “everything but marriage” law providing legal standing for homosexual domestic partnerships, Secretary of State Sam Reed suddenly decided that the state’s broad Public Records Act requires petitioner names to be made public - notwithstanding the provisions to the contrary in the law governing the referendum process.

Petitioners using the pseudonym Doe filed suit demanding an injunction against the release of the names. They argue that the First Amendment right against compelled speech should preclude publicizing their names.

As the court noted in Buckley v. Valeo, “compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment.” Though in that case, the court came down on the side of disclosing campaign donations, justices argued that only something as important to democracy as preventing corruption could outweigh freedom of association. This case isn’t about stopping backroom political sleaze; it is about making people scared to sign a piece of paper.

As the high court explained in McIntyre v. Ohio Elections Commission in 1995, the desire to keep political participation anonymous “may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible.”

Indeed, two of the groups supporting domestic partnerships openly said the reason they want to publicize the names of petition-signers, via the Internet, is so their supporters can have “personal” and “uncomfortable” conversations with petitioners. The petitioners’ court filings cite numerous instances of confrontations, harassment and even bodily threats leveled at those who signed this particular petition or others like it around the country.

These are the same sorts of concerns, of course, that led to the adoption of the secret ballot in American elections. The secret ballot is rightfully sacrosanct. Likewise, the act of qualifying a measure to be on the ballot in the first place is all part of the same voting process.

This case has national implications for participatory democracy. If the Supreme Court takes the case, it can reinforce the First Amendment against its deprivations by political bullies.

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