Doe v. Reed ( 2010 )

(Slip Opinion) OCTOBER TERM, 2009 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
DOE ET AL. v. REED, WASHINGTON SECRETARY OF
STATE, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 09–559. Argued April 28, 2010—Decided June 24, 2010
The Washington Constitution allows citizens to challenge state laws by
referendum. To initiate a referendum, proponents must file a peti
tion with the secretary of state that contains valid signatures of reg
istered Washington voters equal to or exceeding four percent of the
votes cast for the office of Governor at the last gubernatorial election.
A valid submission requires not only a signature, but also the signer’s
address and the county in which he is registered to vote.
In May 2009, Washington Governor Christine Gregoire signed into
law Senate Bill 5688, which expanded the rights and responsibilities
of state-registered domestic partners, including same-sex domestic
partners. That same month, Protect Marriage Washington, one of
the petitioners here, was organized as a “State Political Committee”
for the purpose of collecting the petition signatures necessary to place
a referendum challenging SB 5688 on the ballot. If the referendum
made it onto the ballot, Protect Marriage Washington planned to en
courage voters to reject SB 5688. Protect Marriage Washington sub
mitted the petition with more than 137,000 signatures to the secre
tary of state, and after conducting the verification and canvassing
process required by state law, the secretary determined that the peti
tion contained sufficient signatures to qualify the referendum (R–71)
for the ballot. Respondent intervenors invoked the Washington Pub
lic Records Act (PRA) to obtain copies of the petition, which contained
the signers’ names and addresses.
The R–71 petition sponsor and certain signers filed a complaint
and a motion for injunctive relief in Federal District Court, seeking to
enjoin the public release of the petition. Count I alleges that the PRA
“is unconstitutional as applied to referendum petitions,” and Count II
2 DOE v. REED
Syllabus
alleges that the PRA “is unconstitutional as applied to the Referen
dum 71 petition because there is a reasonable probability that the
signatories . . . will be subjected to threats, harassment, and repri
sals.” Determining that the PRA burdened core political speech, the
District Court held that plaintiffs were likely to succeed on the merits
of Count I and granted a preliminary injunction preventing release of
the signatory information. Reviewing only Count I, the Ninth Circuit
held that plaintiffs were unlikely to succeed on their claim that the
PRA is unconstitutional as applied to referendum petitions in gen
eral, and therefore reversed.
Held: Disclosure of referendum petitions does not as a general matter
violate the First Amendment. Pp. 4–13.
(a) Because plaintiffs’ Count I claim and the relief that would fol
low—an injunction barring the secretary of state from releasing ref
erendum petitions to the public—reach beyond the particular circum
stances of these plaintiffs, they must satisfy this Court’s standards
for a facial challenge to the extent of that reach. See United States v.
Stevens, 559 U. S. ___, ___. Pp. 4–5.
(b) The compelled disclosure of signatory information on referen
dum petitions is subject to review under the First Amendment. In
most cases, the individual’s signature will express the view that the
law subject to the petition should be overturned. Even if the signer is
agnostic as to the merits of the underlying law, his signature still ex
presses the political view that the question should be considered “by
the whole electorate.” Meyer v. Grant, 486 U.S. 414, 421. In either
case, the expression of a political view implicates a First Amendment
right.
Petition signing remains expressive even when it has legal effect in
the electoral process. But that does not mean that the electoral con
text is irrelevant to the nature of this Court’s First Amendment re
view. States have significant flexibility in implementing their own
voting systems. To the extent a regulation concerns the legal effect of
a particular activity in that process, the government is afforded sub
stantial latitude to enforce that regulation. Also pertinent is the fact
that the PRA is not a prohibition on speech, but a disclosure re
quirement that may burden “the ability to speak, but [does] ‘not pre
vent anyone from speaking.’ ” Citizens United v. Federal Election
Comm’n, 558 U. S. ___, ___. This Court has reviewed First Amend
ment challenges to disclosure requirements in the electoral context
under an “exacting scrutiny” standard, requiring “a ‘substantial rela
tion’ between the disclosure requirement and a ‘sufficiently impor
tant’ governmental interest.” Id., at ___. To withstand this scrutiny,
“the strength of the governmental interest must reflect the serious
ness of the actual burden on First Amendment rights.” Davis v. Fed
Cite as: 561 U. S. ____ (2010) 3
Syllabus
eral Election Comm’n, 554 U. S. ___, ___. Pp. 5–7.
(c) The State’s interest in preserving the integrity of the electoral
process suffices to defeat the argument that the PRA is unconstitu
tional with respect to referendum petitions in general. That interest
is particularly strong with respect to efforts to root out fraud. But
the State’s interest is not limited to combating fraud; it extends to ef
forts to ferret out invalid signatures caused not by fraud but by sim
ple mistake, such as duplicate signatures or signatures of individuals
who are not registered to vote in the State. The State’s interest also
extends more generally to promoting transparency and accountability
in the electoral process.
Plaintiffs contend that disclosure is not sufficiently related to the
interest of protecting the integrity of the electoral process to with
stand First Amendment scrutiny. They argue that disclosure is not
necessary because the secretary of state is already charged with veri
fying and canvassing the names on a petition, a measure’s advocates
and opponents can observe that process, any citizen can challenge the
secretary’s actions in court, and criminal penalties reduce the danger
of fraud in the petition process. But the secretary’s verification and
canvassing will not catch all the invalid signatures, and public disclo
sure can help cure the inadequacies of the secretary’s process. Dis
closure also helps prevent difficult-to-detect fraud such as outright
forgery and “bait and switch” fraud, in which an individual signs the
petition based on a misrepresentation of the underlying issue. And
disclosure promotes transparency and accountability in the electoral
process to an extent other measures cannot. Pp. 8–10.
(d) Plaintiffs’ main objection is that “the strength of the govern
mental interest” does not “reflect the seriousness of the actual burden
on First Amendment rights.” Davis, supra, at ___. According to
plaintiffs, the objective of those seeking disclosure is not to prevent
fraud, but to publicly identify signatories and broadcast their politi
cal views on the subject of the petition. Plaintiffs allege, for example,
that several groups plan to post the petitions in searchable form on
the Internet, and then encourage other citizens to seek out R–71 peti
tion signers. That, plaintiffs argue, would subject them to threats,
harassment, and reprisals.
The problem for plaintiffs is that their argument rests almost en
tirely on the specific harm that would attend the disclosure of infor
mation on the R–71 petition. But the question before the Court at
this stage of the litigation is whether disclosure of referendum peti
tions in general violates the First Amendment. Faced with the
State’s unrebutted arguments that only modest burdens attend the
disclosure of a typical petition, plaintiffs’ broad challenge to the PRA
must be rejected. But upholding the PRA against a broad-based chal
4 DOE v. REED
Syllabus
lenge does not foreclose success on plaintiffs’ narrower challenge in
Count II, which is pending before the District Court. See Buckley v.
Valeo, 424 U.S. 1, 74. Pp. 10–13.
586 F.3d 671, affirmed.
ROBERTS, C. J., delivered the opinion of the Court, in which KENNEDY,
GINSBURG, BREYER, ALITO, and SOTOMAYOR, JJ., joined. BREYER, J., and
ALITO, J., filed concurring opinions. SOTOMAYOR, J., filed a concurring
opinion, in which STEVENS and GINSBURG, JJ., joined. STEVENS, J., filed
an opinion concurring in part and concurring in the judgment, in which
BREYER, J., joined. SCALIA, J., filed an opinion concurring in the judg
ment. THOMAS, J., filed a dissenting opinion.
Cite as: 561 U. S. ____ (2010) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–559
_________________
JOHN DOE #1, ET AL., PETITIONERS v. SAM REED,
WASHINGTON SECRETARY OF STATE, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 24, 2010]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
The State of Washington allows its citizens to challenge
state laws by referendum. Roughly four percent of Wash
ington voters must sign a petition to place such a referen
dum on the ballot. That petition, which by law must
include the names and addresses of the signers, is then
submitted to the government for verification and canvass
ing, to ensure that only lawful signatures are counted.
The Washington Public Records Act (PRA) authorizes
private parties to obtain copies of government documents,
and the State construes the PRA to cover submitted refer
endum petitions.
This case arises out of a state law extending certain
benefits to same-sex couples, and a corresponding referen
dum petition to put that law to a popular vote. Respon
dent intervenors invoked the PRA to obtain copies of the
petition, with the names and addresses of the signers.
Certain petition signers and the petition sponsor objected,
arguing that such public disclosure would violate their
rights under the First Amendment.
2 DOE v. REED
Opinion of the Court
The course of this litigation, however, has framed the
legal question before us more broadly. The issue at this
stage of the case is not whether disclosure of this particu
lar petition would violate the First Amendment, but
whether disclosure of referendum petitions in general
would do so. We conclude that such disclosure does not as
a general matter violate the First Amendment, and we
therefore affirm the judgment of the Court of Appeals. We
leave it to the lower courts to consider in the first instance
the signers’ more focused claim concerning disclosure of
the information on this particular petition, which is pend
ing before the District Court.
I
The Washington Constitution reserves to the people the
power to reject any bill, with a few limited exceptions not
relevant here, through the referendum process. Wash.
Const., Art. II, §1(b). To initiate a referendum, proponents
must file a petition with the secretary of state that con
tains valid signatures of registered Washington voters
equal to or exceeding four percent of the votes cast for the
office of Governor at the last gubernatorial election.
§§1(b), (d). A valid submission requires not only a signa
ture, but also the signer’s address and the county in which
he is registered to vote. Wash. Rev. Code §29A.72.130
(2008).
In May 2009, Washington Governor Christine Gregoire
signed into law Senate Bill 5688, which “expand[ed] the
rights and responsibilities” of state-registered domestic
partners, including same-sex domestic partners. 586 F.3d
671, 675 (CA9 2009). That same month, Protect Marriage
Washington, one of the petitioners here, was organized as
a “State Political Committee” for the purpose of collecting
the petition signatures necessary to place a referendum on
the ballot, which would give the voters themselves an
opportunity to vote on SB 5688. App. 8–9. If the referen
Cite as: 561 U. S. ____ (2010) 3
Opinion of the Court
dum made it onto the ballot, Protect Marriage Washington
planned to encourage voters to reject SB 5688. Id., at 7, 9.
On July 25, 2009, Protect Marriage Washington submit
ted to the secretary of state a petition containing over
137,000 signatures. See 586 F.3d, at 675; Brief for Re
spondent Washington Families Standing Together 6. The
secretary of state then began the verification and canvass
ing process, as required by Washington law, to ensure that
only legal signatures were counted. Wash. Rev. Code
§29A.72.230. Some 120,000 valid signatures were re
quired to place the referendum on the ballot. Sam Reed,
Washington Secretary of State, Certification of Referen
dum 71 (Sept. 2, 2009). The secretary of state determined
that the petition contained a sufficient number of valid
signatures, and the referendum (R–71) appeared on the
November 2009 ballot. The voters approved SB 5688 by a
margin of 53% to 47%.
The PRA, Wash. Rev. Code §42.56.001 et seq., makes all
“public records” available for public inspection and copy
ing. §42.56.070(1) (2008). The Act defines “[p]ublic re
cord” as “any writing containing information relating to
the conduct of government or the performance of any
governmental or proprietary function prepared, owned,
used, or retained by any state or local agency.”
§42.56.010(2). Washington takes the position that refer
endum petitions are “public records.” Brief for Respon
dent Reed 5.
By August 20, 2009, the secretary had received requests
for copies of the R–71 petition from an individual and four
entities, including Washington Coalition for Open Gov
ernment (WCOG) and Washington Families Standing
Together (WFST), two of the respondents here. 586 F.3d,
at 675. Two entities, WhoSigned.org and Know-
ThyNeighbor.org, issued a joint press release stating their
intention to post the names of the R–71 petition signers
online, in a searchable format. See App. 11; 586 F.3d, at
4 DOE v. REED
Opinion of the Court
675.
The referendum petition sponsor and certain signers
filed a complaint and a motion for a preliminary injunction
in the United States District Court for the Western Dis
trict of Washington, seeking to enjoin the secretary of
state from publicly releasing any documents that would
reveal the names and contact information of the R–71
petition signers. App. 4. Count I of the complaint alleges
that “[t]he Public Records Act is unconstitutional as ap
plied to referendum petitions.” Id., at 16. Count II of the
complaint alleges that “[t]he Public Records Act is uncon
stitutional as applied to the Referendum 71 petition be
cause there is a reasonable probability that the signatories
of the Referendum 71 petition will be subjected to threats,
harassment, and reprisals.” Id., at 17. Determining that
the PRA burdened core political speech, the District Court
held that plaintiffs were likely to succeed on the merits of
Count I and granted them a preliminary injunction on
that count, enjoining release of the information on the
petition. 661 F. Supp. 2d 1194, 1205–1206 (WD Wash.
2009).
The United States Court of Appeals for the Ninth Cir
cuit reversed. Reviewing only Count I of the complaint,
the Court of Appeals held that plaintiffs were unlikely to
succeed on their claim that the PRA is unconstitutional as
applied to referendum petitions generally. It therefore
reversed the District Court’s grant of the preliminary
injunction. 586 F.3d, at 681. We granted certiorari. 558
U. S. ___ (2010).
II
It is important at the outset to define the scope of the
challenge before us. As noted, Count I of the complaint
contends that the PRA “violates the First Amendment as
applied to referendum petitions.” App. 16. Count II as
serts that the PRA “is unconstitutional as applied to the
Cite as: 561 U. S. ____ (2010) 5
Opinion of the Court
Referendum 71 petition.” Id., at 17. The District Court
decision was based solely on Count I; the Court of Appeals
decision reversing the District Court was similarly lim
ited. 586 F.3d, at 676, n. 6. Neither court addressed
Count II.
The parties disagree about whether Count I is properly
viewed as a facial or as-applied challenge. Compare Reply
Brief for Petitioners 8 (“Count I expressly made an as
applied challenge”), with Brief for Respondent Reed 1
(“This is a facial challenge to Washington’s Public Records
Act”). It obviously has characteristics of both: The claim is
“as applied” in the sense that it does not seek to strike the
PRA in all its applications, but only to the extent it covers
referendum petitions. The claim is “facial” in that it is not
limited to plaintiffs’ particular case, but challenges appli
cation of the law more broadly to all referendum petitions.
The label is not what matters. The important point is
that plaintiffs’ claim and the relief that would follow—an
injunction barring the secretary of state “from making
referendum petitions available to the public,” App. 16
(Complaint Count I)—reach beyond the particular circum
stances of these plaintiffs. They must therefore satisfy our
standards for a facial challenge to the extent of that reach.
See United States v. Stevens, 559 U. S. ___, ___ (2010) (slip
op., at 10).
III
A
The compelled disclosure of signatory information on
referendum petitions is subject to review under the First
Amendment. An individual expresses a view on a political
matter when he signs a petition under Washington’s
referendum procedure. In most cases, the individual’s
signature will express the view that the law subject to the
petition should be overturned. Even if the signer is agnos
tic as to the merits of the underlying law, his signature
6 DOE v. REED
Opinion of the Court
still expresses the political view that the question should
be considered “by the whole electorate.” Meyer v. Grant,
486 U.S. 414, 421 (1988). In either case, the expression of
a political view implicates a First Amendment right. The
State, having “cho[sen] to tap the energy and the legiti
mizing power of the democratic process, . . . must accord
the participants in that process the First Amendment
rights that attach to their roles.” Republican Party of
Minn. v. White, 536 U.S. 765, 788 (2002) (internal quota
tion marks and ellipsis omitted).
Respondents counter that signing a petition is a legally
operative legislative act and therefore “does not involve
any significant expressive element.” Brief for Respondent
Reed 31. It is true that signing a referendum petition may
ultimately have the legal consequence of requiring the
secretary of state to place the referendum on the ballot.
But we do not see how adding such legal effect to an ex
pressive activity somehow deprives that activity of its
expressive component, taking it outside the scope of the
First Amendment. Respondents themselves implicitly
recognize that the signature expresses a particular view
point, arguing that one purpose served by disclosure is to
allow the public to engage signers in a debate on the mer
its of the underlying law. See, e.g., id., at 45; Brief for
Respondent WCOG 49; Brief for Respondent WFST 58.
Petition signing remains expressive even when it has
legal effect in the electoral process. But that is not to say
that the electoral context is irrelevant to the nature of our
First Amendment review. We allow States significant
flexibility in implementing their own voting systems. See
Burdick v. Takushi, 504 U.S. 428, 433–434 (1992). To the
extent a regulation concerns the legal effect of a particular
activity in that process, the government will be afforded
substantial latitude to enforce that regulation. Also perti
nent to our analysis is the fact that the PRA is not a pro
hibition on speech, but instead a disclosure requirement.
Cite as: 561 U. S. ____ (2010) 7
Opinion of the Court
“[D]isclosure requirements may burden the ability to
speak, but they . . . do not prevent anyone from speaking.”
Citizens United v. Federal Election Comm’n, 558 U. S. ___,
___ (2010) (slip op., at 51) (internal quotation marks
omitted).
We have a series of precedents considering First
Amendment challenges to disclosure requirements in the
electoral context. These precedents have reviewed such
challenges under what has been termed “exacting scru
tiny.” See, e.g., Buckley v. Valeo, 424 U.S. 1, 64 (1976)
(per curiam) (“Since NAACP v. Alabama [357 U.S. 449
(1958),] we have required that the subordinating interests
of the State [offered to justify compelled disclosure] sur
vive exacting scrutiny”); Citizens United, supra, at ___
(slip op., at 51) (“The Court has subjected [disclosure]
requirements to ‘exacting scrutiny’ ” (quoting Buckley,
supra, at 64)); Davis v. Federal Election Comm’n, 554 U. S.
___, ___ (2008) (slip op., at 18) (governmental interest in
disclosure “ ‘must survive exacting scrutiny’ ” (quoting
Buckley, supra, at 64)); Buckley v. American Constitu
tional Law Foundation, Inc., 525 U.S. 182, 204 (1999)
(ACLF) (finding that disclosure rules “fail[ed] exacting
scrutiny” (internal quotation marks omitted)).
That standard “requires a ‘substantial relation’ between
the disclosure requirement and a ‘sufficiently important’
governmental interest.” Citizens United, supra, at ___
(slip op., at 51) (quoting Buckley, supra, at 64, 66). To
withstand this scrutiny, “the strength of the governmental
interest must reflect the seriousness of the actual burden
on First Amendment rights.” Davis, supra, at ___ (slip op.,
at 18) (citing Buckley, supra, at 68, 71).1
——————
1 JUSTICE SCALIA doubts whether petition signing is entitled to any
First Amendment protection at all. Post, at 1 (opinion concurring in
judgment). His skepticism is based on the view that petition signing
has “legal effects” in the legislative process, while other aspects of
political participation—with respect to which we have held there is a
8 DOE v. REED
Opinion of the Court
B
Respondents assert two interests to justify the burdens
of compelled disclosure under the PRA on First Amend
ment rights: (1) preserving the integrity of the electoral
process by combating fraud, detecting invalid signatures,
and fostering government transparency and accountabil
ity; and (2) providing information to the electorate about
who supports the petition. See, e.g., Brief for Respondent
Reed 39–42, 44–45. Because we determine that the
State’s interest in preserving the integrity of the electoral
process suffices to defeat the argument that the PRA is
unconstitutional with respect to referendum petitions in
general, we need not, and do not, address the State’s
“informational” interest.
The State’s interest in preserving the integrity of the
electoral process is undoubtedly important. “States allow
ing ballot initiatives have considerable leeway to protect
the integrity and reliability of the initiative process, as
they have with respect to election processes generally.”
ACLF, 525 U.S., at 191. The State’s interest is particu
larly strong with respect to efforts to root out fraud, which
not only may produce fraudulent outcomes, but has a
systemic effect as well: It “drives honest citizens out of the
democratic process and breeds distrust of our govern
ment.” Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (per
curiam); see also Crawford v. Marion County Election Bd.,
553 U.S. 181, 196 (2008) (opinion of STEVENS, J.). The
——————
First Amendment interest, see supra, at 5–7—do not. See post, at 3–4,
and n. 3. That line is not as sharp as JUSTICE SCALIA would have it; he
himself recognizes “the existence of a First Amendment interest in
voting,” post, at 6, which of course also can have legal effect. The
distinction becomes even fuzzier given that only some petition signing
has legal effect, and any such legal effect attaches only well after the
expressive act of signing, if the secretary determines that the petition
satisfies the requirements for inclusion on the ballot. See post, at 3.
Petitions that do not qualify for the ballot of course carry no legal effect.
Cite as: 561 U. S. ____ (2010) 9
Opinion of the Court
threat of fraud in this context is not merely hypothetical;
respondents and their amici cite a number of cases of
petition-related fraud across the country to support the
point. See Brief for Respondent Reed 43; Brief for State of
Ohio et al. as Amici Curiae 22–24.
But the State’s interest in preserving electoral integrity
is not limited to combating fraud. That interest extends to
efforts to ferret out invalid signatures caused not by fraud
but by simple mistake, such as duplicate signatures or
signatures of individuals who are not registered to vote in
the State. See Brief for Respondent Reed 42. That inter
est also extends more generally to promoting transparency
and accountability in the electoral process, which the
State argues is “essential to the proper functioning of a
democracy.” Id., at 39.
Plaintiffs contend that the disclosure requirements of
the PRA are not “sufficiently related” to the interest of
protecting the integrity of the electoral process. Brief for
Petitioners 51. They argue that disclosure is not neces
sary because the secretary of state is already charged with
verifying and canvassing the names on a petition, advo
cates and opponents of a measure can observe that proc
ess, and any citizen can challenge the secretary’s actions
in court. See Wash. Rev. Code §§29A.72.230, 29A.72.240.
They also stress that existing criminal penalties reduce
the danger of fraud in the petition process. See Brief for
Petitioners 50; §§29A.84.210, 29A.84.230, 29A.84.250.
But the secretary’s verification and canvassing will not
catch all invalid signatures: The job is large and difficult
(the secretary ordinarily checks “only 3 to 5% of signa
tures,” Brief for Respondent WFST 54), and the secretary
can make mistakes, too, see Brief for Respondent Reed 42.
Public disclosure can help cure the inadequacies of the
verification and canvassing process.
Disclosure also helps prevent certain types of petition
fraud otherwise difficult to detect, such as outright forgery
10 DOE v. REED
Opinion of the Court
and “bait and switch” fraud, in which an individual signs
the petition based on a misrepresentation of the underly
ing issue. See Brief for Respondent WFST 9–11, 53–54;
cf. Brief for Massachusetts Gay and Lesbian Political
Caucus et al. as Amici Curiae 18–22 (detailing “bait and
switch” fraud in a petition drive in Massachusetts). The
signer is in the best position to detect these types of
fraud, and public disclosure can bring the issue to the
signer’s attention.
Public disclosure thus helps ensure that the only signa
tures counted are those that should be, and that the only
referenda placed on the ballot are those that garner
enough valid signatures. Public disclosure also promotes
transparency and accountability in the electoral process to
an extent other measures cannot. In light of the foregoing,
we reject plaintiffs’ argument and conclude that public
disclosure of referendum petitions in general is substan
tially related to the important interest of preserving the
integrity of the electoral process.2
C
Plaintiffs’ more significant objection is that “the
strength of the governmental interest” does not “reflect
the seriousness of the actual burden on First Amendment
rights.” Davis, 554 U. S., at ___ (slip op., at 18) (citing
Buckley, 424 U.S., at 68, 71); see, e.g., Brief for Petitioners
12–13, 30. According to plaintiffs, the objective of those
seeking disclosure of the R–71 petition is not to prevent
fraud, but to publicly identify those who had validly signed
and to broadcast the signers’ political views on the subject
of the petition. Plaintiffs allege, for example, that several
——————
2 JUSTICE THOMAS’s contrary assessment of the relationship between
the disclosure of referendum petitions generally and the State’s inter
ests in this case is based on his determination that strict scrutiny
applies, post, at 5 (dissenting opinion), rather than the standard of
review that we have concluded is appropriate, see supra, at 7.
Cite as: 561 U. S. ____ (2010) 11
Opinion of the Court
groups plan to post the petitions in searchable form on the
Internet, and then encourage other citizens to seek out the
R–71 signers. See App. 11; Brief for Petitioners 8, 46–47.
Plaintiffs explain that once on the Internet, the petition
signers’ names and addresses “can be combined with
publicly available phone numbers and maps,” in what will
effectively become a blueprint for harassment and intimi
dation. Id., at 46. To support their claim that they will be
subject to reprisals, plaintiffs cite examples from the
history of a similar proposition in California, see, e.g., id.,
at 2–6, 31–32, and from the experience of one of the peti
tion sponsors in this case, see App. 9.
In related contexts, we have explained that those
resisting disclosure can prevail under the First Amend
ment if they can show “a reasonable probability that the
compelled disclosure [of personal information] will sub
ject them to threats, harassment, or reprisals from ei
ther Government officials or private parties.” Buckley,
supra, at 74; see also Citizens United, 558 U. S., at ___
(slip op., at 52). The question before us, however, is not
whether PRA disclosure violates the First Amendment
with respect to those who signed the R–71 petition, or
other particularly controversial petitions. The question
instead is whether such disclosure in general violates
the First Amendment rights of those who sign referen
dum petitions.
The problem for plaintiffs is that their argument rests
almost entirely on the specific harm they say would attend
disclosure of the information on the R–71 petition, or on
similarly controversial ones. See, e.g., Brief for Petitioners
10, 26–29, 46, 56. But typical referendum petitions “con
cern tax policy, revenue, budget, or other state law issues.”
Brief for Respondent WFST 36 (listing referenda); see also
App. 26 (stating that in recent years the State has re
ceived PRA requests for petitions supporting initiatives
concerning limiting motor vehicle charges; government
12 DOE v. REED
Opinion of the Court
regulation of private property; energy resource use by
certain electric utilities; long-term care services for the
elderly and persons with disabilities; and state, county,
and city revenue); id., at 26–27 (stating that in the past 20
years, referendum measures that have qualified for the
ballot in the State concerned land-use regulation; unem
ployment insurance; charter public schools; and insurance
coverage and benefits). Voters care about such issues,
some quite deeply—but there is no reason to assume that
any burdens imposed by disclosure of typical referendum
petitions would be remotely like the burdens plaintiffs fear
in this case.
Plaintiffs have offered little in response. They have
provided us scant evidence or argument beyond the bur
dens they assert disclosure would impose on R–71 petition
signers or the signers of other similarly controversial
petitions. Indeed, what little plaintiffs do offer with
respect to typical petitions in Washington hurts, not
helps: Several other petitions in the State “have been
subject to release in recent years,” plaintiffs tell us, Brief
for Petitioners 50, but apparently that release has come
without incident. Cf. Citizens United, supra, at ___ (slip
op., at 55) (“Citizens United has been disclosing its donors
for years and has identified no instance of harassment or
retaliation”).
Faced with the State’s unrebutted arguments that only
modest burdens attend the disclosure of a typical petition,
we must reject plaintiffs’ broad challenge to the PRA. In
doing so, we note—as we have in other election law disclo
sure cases—that upholding the law against a broad-based
challenge does not foreclose a litigant’s success in a nar
rower one. See Buckley, supra, at 74 (“minor parties” may
be exempt from disclosure requirements if they can show
“a reasonable probability that the compelled disclosure of
a party’s contributors’ names will subject them to threats,
harassment, or reprisals from either Government officials
Cite as: 561 U. S. ____ (2010) 13
Opinion of the Court
or private parties”); Citizens United, supra, at ___ (slip op.,
at 54) (disclosure “would be unconstitutional as applied to
an organization if there were a reasonable probability that
the group’s members would face threats, harassment, or
reprisals if their names were disclosed” (citing McConnell
v. Federal Election Comm’n, 540 U.S. 93, 198 (2003)). The
secretary of state acknowledges that plaintiffs may press
the narrower challenge in Count II of their complaint in
proceedings pending before the District Court. Brief for
Respondent Reed 17.
* * *
We conclude that disclosure under the PRA would not
violate the First Amendment with respect to referendum
petitions in general and therefore affirm the judgment of
the Court of Appeals.
It is so ordered.
Cite as: 561 U. S. ____ (2010) 1
BREYER, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–559
_________________
JOHN DOE #1, ET AL., PETITIONERS v. SAM REED,
WASHINGTON SECRETARY OF STATE, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 24, 2010]
JUSTICE BREYER, concurring.
In circumstances where, as here, “a law significantly
implicates competing constitutionally protected interests
in complex ways,” the Court balances interests. Nixon v.
Shrink Missouri Government PAC, 528 U.S. 377, 402
(2000) (BREYER, J., concurring). “And in practice that has
meant asking whether the statute burdens any one such
interest in a manner out of proportion to the statute’s
salutary effects upon the others.” Ibid. As I read their
opinions, this is what both the Court and JUSTICE
STEVENS do. See ante, at 7 (opinion of the Court); post, at
2 (STEVENS, J., concurring in part and concurring in
judgment). And for the reasons stated in those opinions
(as well as many of the reasons discussed by JUSTICE
SOTOMAYOR), I would uphold the statute challenged in
this case. With this understanding, I join the opinion of
the Court and JUSTICE STEVENS’ opinion.
Cite as: 561 U. S. ____ (2010) 1
ALITO, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–559
_________________
JOHN DOE #1, ET AL., PETITIONERS v. SAM REED,
WASHINGTON SECRETARY OF STATE, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 24, 2010]
JUSTICE ALITO, concurring.
The Court holds that the disclosure under the Washing
ton Public Records Act (PRA), Wash. Rev. Code §42.56.001
et seq. (2008), of the names and addresses of persons who
sign referendum petitions does not as a general matter
violate the First Amendment, ante, at 13, and I agree with
that conclusion. Many referendum petitions concern
relatively uncontroversial matters, see ante, at 11–12, and
plaintiffs have provided no reason to think that disclosure
of signatory information in those contexts would signifi
cantly chill the willingness of voters to sign. Plaintiffs’
facial challenge therefore must fail. See ante, at 2, 5.
Nonetheless, facially valid disclosure requirements can
impose heavy burdens on First Amendment rights in
individual cases. Acknowledging that reality, we have
long held that speakers can obtain as-applied exemptions
from disclosure requirements if they can show “a reason
able probability that the compelled disclosure of [personal
information] will subject them to threats, harassment, or
reprisals from either Government officials or private
parties.” Buckley v. Valeo, 424 U.S. 1, 74 (1976) (per
curiam); see also Citizens United v. Federal Election
Comm’n, 558 U. S. ___, ___ (2010) (slip op., at 52); McCon
nell v. Federal Election Comm’n, 540 U.S. 93, 197–198
(2003); Brown v. Socialist Workers ’74 Campaign Comm.
2 DOE v. REED
ALITO, J., concurring
(Ohio), 459 U.S. 87, 93 (1982). Because compelled disclo
sure can “burden the ability to speak,” Citizens United,
supra, at ___ (slip op., at 51), and “seriously infringe on
privacy of association and belief guaranteed by the First
Amendment,” Buckley, supra, at 64, the as-applied exemp
tion plays a critical role in safeguarding First Amendment
rights.
I
The possibility of prevailing in an as-applied challenge
provides adequate protection for First Amendment rights
only if (1) speakers can obtain the exemption sufficiently
far in advance to avoid chilling protected speech and (2)
the showing necessary to obtain the exemption is not
overly burdensome. With respect to the first requirement,
the as-applied exemption becomes practically worthless if
speakers cannot obtain the exemption quickly and well in
advance of speaking. To avoid the possibility that a dis
closure requirement might chill the willingness of voters
to sign a referendum petition (and thus burden a circula
tor’s ability to collect the necessary number of signatures,
cf. Meyer v. Grant, 486 U.S. 414, 423 (1988)), voters must
have some assurance at the time when they are presented
with the petition that their names and identifying infor
mation will not be released to the public. The only way a
circulator can provide such assurance, however, is if the
circulator has sought and obtained an as-applied exemp
tion from the disclosure requirement well before circulat
ing the petition. Otherwise, the best the circulator could
do would be to tell voters that an exemption might be
obtained at some point in the future. Such speculation
would often be insufficient to alleviate voters’ concerns
about the possibility of being subjected to threats, har
assment, or reprisals. Cf. Citizens United, supra, at ___
(slip op., at 5–6) (THOMAS, J., concurring in part and
dissenting in part).
Cite as: 561 U. S. ____ (2010) 3
ALITO, J., concurring
Additionally, speakers must be able to obtain an as
applied exemption without clearing a high evidentiary
hurdle. We acknowledged as much in Buckley, where we
noted that “unduly strict requirements of proof could
impose a heavy burden” on speech. 424 U.S., at 74.
Recognizing that speakers “must be allowed sufficient
flexibility in the proof of injury to assure a fair considera
tion of their claim,” we emphasized that speakers “need
show only a reasonable probability” that disclosure will
lead to threats, harassment, or reprisals. Ibid. (emphasis
added). We stated that speakers could rely on a wide
array of evidence to meet that standard, including “spe
cific evidence of past or present harassment of [group]
members,” “harassment directed against the organization
itself,” or a “pattern of threats or specific manifestations of
public hostility.” Ibid. Significantly, we also made clear
that “[n]ew [groups] that have no history upon which to
draw may be able to offer evidence of reprisals and threats
directed against individuals or organizations holding
similar views.” Ibid. From its inception, therefore, the as
applied exemption has not imposed onerous burdens of
proof on speakers who fear that disclosure might lead to
harassment or intimidation.
II
In light of those principles, the plaintiffs in this case
have a strong argument that the PRA violates the First
Amendment as applied to the Referendum 71 petition.
A
Consider first the burdens on plaintiffs’ First Amend
ment rights. The widespread harassment and intimida
tion suffered by supporters of California’s Proposition 8
provides strong support for an as-applied exemption in the
present case. See Buckley, supra, at 74 (explaining that
speakers seeking as-applied relief from a disclosure re
4 DOE v. REED
ALITO, J., concurring
quirement can rely on “evidence of reprisals and threats
directed against individuals or organizations holding
similar views”). Proposition 8 amended the California
Constitution to provide that “[o]nly marriage between a
man and a woman is valid or recognized in California,”
Cal. Const., Art. I, §7.5, and plaintiffs submitted to the
District Court substantial evidence of the harassment
suffered by Proposition 8 supporters, see Declaration of
Scott F. Bieniek in No. C:09–5456 (WD Wash.), Exhs. 12,
13. Members of this Court have also noted that harass
ment. See Hollingsworth v. Perry, 558 U. S. ___, ___
(2010) (per curiam) (slip op., at 2–3); Citizens United, 558
U. S., at ___ (slip op., at 2–3) (opinion of THOMAS, J.).
Indeed, if the evidence relating to Proposition 8 is not
sufficient to obtain an as-applied exemption in this case,
one may wonder whether that vehicle provides any mean
ingful protection for the First Amendment rights of per
sons who circulate and sign referendum and initiative
petitions.
What is more, when plaintiffs return to the District
Court, they will have the opportunity to develop evidence
of intimidation and harassment of Referendum 71 sup
porters—an opportunity that was pretermitted because of
the District Court’s decision to grant a preliminary injunc
tion on count 1 of plaintiffs’ complaint. See 661 F. Supp.
2d 1194, 1205–1206 (WD Wash. 2009); Tr. of Oral Arg. 40–
41. For example, plaintiffs allege that the campaign
manager for one of the plaintiff groups received threaten
ing e-mails and phone calls, and that the threats were so
severe that the manager filed a complaint with the local
sheriff and had his children sleep in an interior room of
his home. App. 9–10.
B
The inadequacy of the State’s interests in compelling
public disclosure of referendum signatory information
Cite as: 561 U. S. ____ (2010) 5
ALITO, J., concurring
further confirms that courts should be generous in grant
ing as-applied relief in this context. See Buckley, supra, at
71 (recognizing that the weakness of the State’s interests
in an individual case can require exempting speakers from
compelled disclosure); Brown, 459 U.S., at 92–93 (same).
As the Court notes, respondents rely on two interests to
justify compelled disclosure in this context: (1) providing
information to voters about who supports a referendum
petition; and (2) preserving the integrity of the referen
dum process by detecting fraudulent and mistaken signa
tures. Ante, at 8.
1
In my view, respondents’ asserted informational interest
will not in any case be sufficient to trump the First
Amendment rights of signers and circulators who face a
threat of harassment. Respondents maintain that publicly
disclosing the names and addresses of referendum signa
tories provides the voting public with “insight into
whether support for holding a vote comes predominantly
from particular interest groups, political or religious or
ganizations, or other group[s] of citizens,” and thus allows
voters to draw inferences about whether they should
support or oppose the referendum. Brief for Respondent
Washington Families Standing Together 58; see also Brief
for Respondent Reed 46–48. Additionally, respondents
argue that disclosure “allows Washington voters to engage
in discussion of referred measures with persons whose
acts secured the election and suspension of state law.” Id.,
at 45; see also Brief for Respondent Washington Families
Standing Together 58.
The implications of accepting such an argument are
breathtaking. Were we to accept respondents’ asserted
informational interest, the State would be free to require
petition signers to disclose all kinds of demographic infor
mation, including the signer’s race, religion, political
6 DOE v. REED
ALITO, J., concurring
affiliation, sexual orientation, ethnic background, and
interest-group memberships. Requiring such disclosures,
however, runs headfirst into a half century of our case
law, which firmly establishes that individuals have a right
to privacy of belief and association. See Rumsfeld v. Fo
rum for Academic and Institutional Rights, Inc., 547 U.S.
47, 69 (2006); Brown, supra, at 91; Buckley, 424 U.S., at
64; DeGregory v. Attorney General of N. H., 383 U.S. 825,
829 (1966); Gibson v. Florida Legislative Investigation
Comm., 372 U.S. 539, 544 (1963); NAACP v. Alabama ex
rel. Patterson, 357 U.S. 449, 462 (1958). Indeed, the
State’s informational interest paints such a chilling pic
ture of the role of government in our lives that at oral
argument the Washington attorney general balked when
confronted with the logical implications of accepting such
an argument, conceding that the State could not require
petition signers to disclose their religion or ethnicity. Tr.
of Oral Arg. 37, 56.
Respondents’ informational interest is no more legiti
mate when viewed as a means of providing the public with
information needed to locate and contact supporters of a
referendum. In the name of pursuing such an interest, the
State would be free to require petition signers to disclose
any information that would more easily enable members
of the voting public to contact them and engage them in
discussion, including telephone numbers, e-mail ad
dresses, and Internet aliases. Once again, permitting the
government to require speakers to disclose such informa
tion runs against the current of our associational privacy
cases. But more important, when speakers are faced with
a reasonable probability of harassment or intimidation,
the State no longer has any interest in enabling the public
to locate and contact supporters of a particular measure—
for in that instance, disclosure becomes a means of facili
tating harassment that impermissibly chills the exercise
of First Amendment rights.
Cite as: 561 U. S. ____ (2010) 7
ALITO, J., concurring
In this case, two groups proposed to place on the Inter
net the names and addresses of all those who signed Ref
erendum 71, and it is alleged that their express aim was to
encourage “uncomfortable conversation[s].” 661 F. Supp.
2d, at 1199 (internal quotation marks omitted). If this
information is posted on the Internet, then anyone with
access to a computer could compile a wealth of information
about all of those persons, including in many cases all of
the following: the names of their spouses and neighbors,
their telephone numbers, directions to their homes, pic
tures of their homes, information about their homes (such
as size, type of construction, purchase price, and mortgage
amount), information about any motor vehicles that they
own, any court case in which they were parties, any in
formation posted on a social networking site, and newspa
per articles in which their names appeared (including such
things as wedding announcements, obituaries, and articles
in local papers about their children’s school and athletic
activities). The potential that such information could be
used for harassment is vast.
2
Respondents also maintain that the State has an inter
est in preserving the integrity of the referendum process
and that public disclosure furthers that interest by help
ing the State detect fraudulent and mistaken signatures.
I agree with the Court that preserving the integrity of the
referendum process constitutes a sufficiently important
state interest. Ante, at 8. But I harbor serious doubts as
to whether public disclosure of signatory information
serves that interest in a way that always “reflect[s] the
seriousness of the actual burden on First Amendment
rights.” Davis v. Federal Election Comm’n, 554 U. S. ___,
___ (2008) (slip op., at 18).
First, the realities of Washington law undermine the
State’s argument that public disclosure is necessary to
8 DOE v. REED
ALITO, J., concurring
ensure the integrity of the referendum process. The State
of Washington first authorized voter initiatives via consti
tutional amendment in 1912, and the following year the
Washington Legislature passed a statute specifying the
particulars of the referendum process. See State ex rel.
Case v. Superior Ct. for Thurston Cty., 81 Wash. 623, 628,
143 P. 461, 462 (1914). Significantly, Washington’s laws
pertaining to initiatives and referenda did not then and do
not now authorize the public disclosure of signatory in
formation. See Wash. Rev. Code §29A.72.010 et seq.; 1913
Wash. Laws. pp. 418–437. Instead, the public disclosure
requirement stems from the PRA, which was enacted in
1972 and which requires the public disclosure of state
documents generally, not referendum documents specifi
cally. See Wash. Rev. Code §42.56.001 et seq. Indeed, if
anything, Washington’s referenda and initiative laws
suggest that signatory information should remain confi
dential: Outside observers are permitted to observe the
secretary of state’s verification and canvassing process
only “so long as they make no record of the names, ad
dresses, or other information on the petitions or related
records during the verification process,” §29A.72.230, and
the State is required to destroy all those petitions that fail
to qualify for the ballot, §29A.72.200.
Second, the State fails to come to grips with the fact
that public disclosure of referendum signatory information
is a relatively recent practice in Washington. Prior to the
adoption of the PRA in 1972, the Washington attorney
general took the view that referendum petitions were not
subject to public disclosure. See Op. Wash. Atty. Gen. 55–
57 No. 274, pp. 1–2 (May 28, 1956), online at
http://www.atg.wa.gov/AGOOpinions/opinion.aspx?section
=topic&id=10488 (all Internet materials as visited June
17, 2010, and available in Clerk of Court’s case file) (de
claring that public disclosure of initiative petitions would
be “contrary to public policy” and would run contrary to “a
Cite as: 561 U. S. ____ (2010) 9
ALITO, J., concurring
tendency on the part of the legislature to regard the sign
ing of an initiative petition as a matter concerning only
the individual signers except in so far as necessary to
safeguard against abuses of the privilege”). Indeed, the
secretary of state represents on his Web site that even
after the PRA was enacted, “various Secretary of State
administrations took the position, from 1973 to 1998, that
the personal information on petition sheets were NOT
subject to disclosure.” B. Zylstra, The Disclosure History
of Petition Sheets (Sept. 17, 2009), online at
http://blogs.sos.wa.gov/FromOurCorner/index.php/2009/09/
the-disclosure-history-of-petition-sheets/. Although the
secretary of state apparently changed this policy in the
late 1990’s, it appears that the secretary did not release
any initiative petitions until 2006. Ibid. And to date, the
secretary has released only a handful of petitions. Ibid.;
App. 26. That history substantially undermines the
State’s assertion that public disclosure is necessary to
ensure the integrity of the referendum process. For nearly
a century, Washington’s referendum process operated—
and apparently operated successfully—without the public
disclosure of signatory information. The State has failed
to explain how circumstances have changed so dramati
cally in recent years that public disclosure is now
required.
Third, the experiences of other States demonstrates that
publicly disclosing the names and identifying information
of referendum signatories is not necessary to protect
against fraud and mistake. To give but one example,
California has had more initiatives on the ballot than any
other State save Oregon. See Initiative and Referendum
Institute, Initiative Use, p. 1 (Feb. 2009), online at
http://www.iandrinstitute.org/IRI%20Initiative%20Use%2
0%281904=2008%29.pdf. Nonetheless, California law
explicitly protects the privacy of initiative and referendum
signatories. See Cal. Elec. Code Ann. §18650 (West 2003);
10 DOE v. REED
ALITO, J., concurring
Cal. Govt. Code Ann. §6253.5 (West 2008). It is thus
entirely possible for a State to keep signatory information
private and maintain a referendum and initiative process
free from fraud.
Finally, Washington could easily and cheaply employ
alternative mechanisms for protecting against fraud and
mistake that would be far more protective of circulators’
and signers’ First Amendment rights. For example, the
Washington attorney general represented to us at oral
argument that “the Secretary of State’s first step after
receiving submitted petitions is to take them to his archiv
ing section and to have them digitized.” Tr. of Oral Arg.
30. With a digitized list, it should be relatively easy for
the secretary to check for duplicate signatures on a refer
endum petition. And given that the secretary maintains a
“centralized, uniform, interactive computerized statewide
voter registration list that contains the name and registra
tion information of every registered voter in the state,”
Wash. Rev. Code Ann. §29A.08.125(1) (West Supp. 2010),
the secretary could use a computer program to cross-check
the names and addresses on the petition with the names
and addresses on the voter registration roles, thus ensur
ing the accuracy and legitimacy of each signature.
Additionally, using the digitized version of the referen
dum petition, the State could set up a simple system for
Washington citizens to check whether their names have
been fraudulently signed to a petition. For example, on
his Web site, the secretary maintains an interface that
allows voters to confirm their voter registration informa
tion simply by inputting their name and date of birth. See
http://wei.secstate.wa.gov/osos/VoterVault/Pages/MyVote.a
spx. Presumably the secretary could set up a similar
interface for referendum petitions. Indeed, the process
would seem to be all the more simple given that Washing
ton requires a “unique identifier [to] be assigned to each
registered voter in the state.” §29A.08.125(4).
Cite as: 561 U. S. ____ (2010)
11
ALITO, J., concurring
* * *
As-applied challenges to disclosure requirements play a
critical role in protecting First Amendment freedoms. To
give speech the breathing room it needs to flourish,
prompt judicial remedies must be available well before the
relevant speech occurs and the burden of proof must be
low. In this case—both through analogy and through their
own experiences—plaintiffs have a strong case that they
are entitled to as-applied relief, and they will be able to
pursue such relief before the District Court.
Cite as: 561 U. S. ____ (2010) 1
SOTOMAYOR, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–559
_________________
JOHN DOE #1, ET AL., PETITIONERS v. SAM REED,
WASHINGTON SECRETARY OF STATE, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 24, 2010]
JUSTICE SOTOMAYOR, with whom JUSTICE STEVENS and
JUSTICE GINSBURG join, concurring.
I write separately to emphasize a point implicit in the
opinion of the Court and the concurring opinions of
JUSTICE STEVENS, JUSTICE SCALIA, and JUSTICE BREYER:
In assessing the countervailing interests at stake in this
case, we must be mindful of the character of initiatives
and referenda. These mechanisms of direct democracy are
not compelled by the Federal Constitution. It is instead
up to the people of each State, acting in their sovereign
capacity, to decide whether and how to permit legislation
by popular action. States enjoy “considerable leeway” to
choose the subjects that are eligible for placement on the
ballot and to specify the requirements for obtaining ballot
access (e.g., the number of signatures required, the time
for submission, and the method of verification). Buckley v.
American Constitutional Law Foundation, Inc., 525 U.S.
182, 191 (1999). As the Court properly recognizes, each of
these structural decisions “inevitably affects—at least to
some degree—the individual’s right” to speak about politi
cal issues and “to associate with others for political ends.”
Anderson v. Celebrezze, 460 U.S. 780, 788 (1983). For
instance, requiring petition signers to be registered voters
or to use their real names no doubt limits the ability or
willingness of some individuals to undertake the expres
2 DOE v. REED
SOTOMAYOR, J., concurring
sive act of signing a petition. Regulations of this nature,
however, stand “a step removed from the communicative
aspect of petitioning,” and the ability of States to impose
them can scarcely be doubted. Buckley, 525 U.S., at 215
(O’Connor, J., concurring in judgment in part and dissent
ing in part); see also McIntyre v. Ohio Elections Comm’n,
514 U.S. 334, 345 (1995) (contrasting measures to “control
the mechanics of the electoral process” with the “regula
tion of pure speech”). It is by no means necessary for a
State to prove that such “reasonable, nondiscriminatory
restrictions” are narrowly tailored to its interests. Ander
son, 460 U.S., at 788.
The Court today confirms that the State of Washington’s
decision to make referendum petition signatures available
for public inspection falls squarely within the realm of
permissible election-related regulations. Cf. Buckley, 525
U.S., at 200 (describing a state law requiring petition
circulators to submit affidavits containing their names
and addresses as “exemplif[ying] the type of regulation”
that States may adopt). Public disclosure of the identity of
petition signers, which is the rule in the overwhelming
majority of States that use initiatives and referenda,
advances States’ vital interests in “[p]reserving the integ
rity of the electoral process, preventing corruption, and
sustaining the active, alert responsibility of the individual
citizen in a democracy for the wise conduct of govern
ment.” First Nat. Bank of Boston v. Bellotti, 435 U.S. 765,
788–789 (1978) (internal quotation marks and alterations
omitted); see also Citizens United v. Federal Election
Comm’n, 558 U. S. ___, ___ (2010) (slip op., at 55)
(“[T]ransparency enables the electorate to make informed
decisions and give proper weight to different speakers and
messages”); Brief for Respondent Washington Families
Standing Together 34 (reporting that only one State ex
empts initiative and referendum petitions from public
disclosure). In a society “in which the citizenry is the final
Cite as: 561 U. S. ____ (2010) 3
SOTOMAYOR, J., concurring
judge of the proper conduct of public business,” openness
in the democratic process is of “critical importance.” Cox
Broadcasting Corp. v. Cohn, 420 U.S. 469, 495 (1975); see
also post, at 4 (SCALIA, J., concurring in judgment) (noting
that “[t]he public nature of federal lawmaking is constitu
tionally required”).
On the other side of the ledger, I view the burden of
public disclosure on speech and associational rights as
minimal in this context. As this Court has observed with
respect to campaign-finance regulations, “disclosure re
quirements . . . ‘do not prevent anyone from speaking.’ ”
Citizens United, 558 U. S., at ___ (slip op., at 51). When it
comes to initiatives and referenda, the impact of public
disclosure on expressive interests is even more attenuated.
While campaign-finance disclosure injects the government
into what would otherwise have been private political
activity, the process of legislating by referendum is inher
ently public. To qualify a referendum for the ballot, citi
zens are required to sign a petition and supply identifying
information to the State. The act of signing typically
occurs in public, and the circulators who collect and sub
mit signatures ordinarily owe signers no guarantee of
confidentiality. For persons with the “civic courage” to
participate in this process, post, at 10 (opinion of SCALIA,
J.), 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 sign
ing. Disclosure of the identity of petition signers, more
over, in no way directly impairs the ability of anyone to
speak and associate for political ends either publicly or
privately.
Given the relative weight of the interests at stake and
the traditionally public nature of initiative and referen
dum processes, the Court rightly rejects petitioners’ con
stitutional challenge to the State of Washington’s petition
disclosure regulations. These same considerations also
4 DOE v. REED
SOTOMAYOR, J., concurring
mean that any party attempting to challenge particular
applications of the State’s regulations will bear a heavy
burden. Even when a referendum involves a particularly
controversial subject and some petition signers fear har
assment from nonstate actors, a State’s important inter
ests in “protect[ing] the integrity and reliability of the
initiative process” remain undiminished, and the State
retains significant discretion in advancing those interests.
Buckley, 525 U.S., at 191. Likewise, because the expres
sive interests implicated by the act of petition signing are
always modest, I find it difficult to see how any incre
mental disincentive to sign a petition would tip the consti
tutional balance. Case-specific relief may be available
when a State selectively applies a facially neutral petition
disclosure rule in a manner that discriminates based on
the content of referenda or the viewpoint of petition sign
ers, or in the rare circumstance in which disclosure poses
a reasonable probability of serious and widespread har
assment that the State is unwilling or unable to control.
Cf. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449
(1958). Allowing case-specific invalidation under a more
forgiving standard would unduly diminish the substantial
breathing room States are afforded to adopt and imple
ment reasonable, nondiscriminatory measures like the
disclosure requirement now at issue. Accordingly, courts
presented with an as-applied challenge to a regulation
authorizing the disclosure of referendum petitions should
be deeply skeptical of any assertion that the Constitution,
which embraces political transparency, compels States to
conceal the identity of persons who seek to participate in
lawmaking through a state-created referendum process.
With this understanding, I join the opinion of the Court.
Cite as: 561 U. S. ____ (2010) 1
Opinion of STEVENS, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–559
_________________
JOHN DOE #1, ET AL., PETITIONERS v. SAM REED,
WASHINGTON SECRETARY OF STATE, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 24, 2010]
JUSTICE STEVENS, with whom JUSTICE BREYER joins,
concurring in part and concurring in the judgment.
This is not a hard case. It is not about a restriction on
voting or on speech and does not involve a classic disclo
sure requirement. Rather, the case concerns a neutral,
nondiscriminatory policy of disclosing information already
in the State’s possession that, it has been alleged, might
one day indirectly burden petition signatories. The bur
den imposed by Washington’s application of the Public
Records Act (PRA) to referendum petitions in the vast
majority, if not all, its applications is not substantial. And
the State has given a more than adequate justification for
its choice.
For a number of reasons, the application of the PRA to
referendum petitions does not substantially burden any
individual’s expression. First, it is not “a regulation of
pure speech.” McIntyre v. Ohio Elections Comm’n, 514
U.S. 334, 345 (1995); cf. United States v. O’Brien, 391
U.S. 367, 377 (1968). It does not prohibit expression, nor
does it require that any person signing a petition disclose
or say anything at all. See McIntyre, 514 U.S. 334. Nor
does the State’s disclosure alter the content of a speaker’s
message. See id., at 342–343.
Second, any effect on speech that disclosure might have
is minimal. The PRA does not necessarily make it more
2 DOE v. REED
Opinion of STEVENS, J.
difficult to circulate or obtain signatures on a petition, see
Buckley v. American Constitutional Law Foundation, Inc.,
525 U.S. 182, 193–196 (1999); Meyer v. Grant, 486 U.S.
414, 422–423 (1988), or to communicate one’s views gen
erally. Regardless of whether someone signs a referendum
petition, that person remains free to say anything to any
one at any time. If disclosure indirectly burdens a
speaker, “the amount of speech covered” is small—only a
single, narrow message conveying one fact in one place,
Watchtower Bible & Tract Soc. of N. Y., Inc. v. Village of
Stratton, 536 U.S. 150, 165 (2002); cf. Cox v. New Hamp
shire, 312 U.S. 569 (1941). And while the democratic act
of casting a ballot or signing a petition does serve an
expressive purpose, the act does not involve any “interac
tive communication,” Meyer, 486 U.S., at 422, and is “not
principally” a method of “individual expression of political
sentiment,” Timmons v. Twin Cities Area New Party, 520
U.S. 351, 373 (1997) (STEVENS, J., dissenting); cf. O’Brien,
391 U.S., at 377.1
Weighed against the possible burden on constitutional
rights are the State’s justifications for its rule. In this
case, the State has posited a perfectly adequate justifica
tion: an interest in deterring and detecting petition fraud.2
Given the pedigree of this interest and of similar regula
tions, the State need not produce concrete evidence that
the PRA is the best way to prevent fraud. See Crawford v.
——————
1 Although a “petition” is a classic means of political expression, the
type of petition at issue in this case is not merely a document on which
people are expressing their views but rather is a state-created forum with
a particular function: sorting those issues that have enough public
support to warrant limited space on a referendum ballot. Cf. Widmar v.
Vincent, 454 U.S. 263, 278 (1981) (STEVENS, J., concurring in judgment).
2 Washington also points out that its disclosure policy informs voters
about who supports the particular referendum. In certain election-law
contexts, this informational rationale (among others) may provide a
basis for regulation; in this case, there is no need to look beyond the
State’s quite obvious antifraud interest.
Cite as: 561 U. S. ____ (2010) 3
Opinion of STEVENS, J.
Marion County Election Bd., 553 U.S. 181, 191–200
(2008) (opinion of STEVENS, J.) (discussing voting fraud);
Nixon v. Shrink Missouri Government PAC, 528 U.S. 377,
391 (2000) (“The quantum of empirical evidence needed to
satisfy heightened judicial scrutiny of legislative judg
ments will vary up or down with the novelty and plausibil
ity of the justification raised”); see also Timmons, 520
U.S., at 375 (STEVENS, J., dissenting) (rejecting “imagina
tive [and] theoretical” justification supported only by “bare
assertion”).3 And there is more than enough evidence to
support the State’s election-integrity justification. See
ante, at 8–10 (opinion of the Court).
There remains the issue of petitioners’ as-applied chal
lenge. As a matter of law, the Court is correct to keep
open the possibility that in particular instances in which a
policy such as the PRA burdens expression “by the public
enmity attending publicity,” Brown v. Socialist Workers
’74 Campaign Comm. (Ohio), 459 U.S. 87, 98 (1982),
speakers may have a winning constitutional claim.
“ ‘[F]rom time to time throughout history,’ ” persecuted
groups have been able “ ‘to criticize oppressive practices
——————
3 There is no reason to think that our ordinary presumption that the
political branches are better suited than courts to weigh a policy’s
benefits and burdens is inapplicable in this case. The degree to which
we defer to a judgment by the political branches must vary up and
down with the degree to which that judgment reflects considered,
public-minded decisionmaking. Thus, when a law appears to have been
adopted without reasoned consideration, see, e.g., Salazar v. Buono,
559 U. S. ___, ___–___ (2010) (STEVENS, J., dissenting) (slip op., at 22–
23), for discriminatory purposes, see, e.g., Bates v. Little Rock, 361 U.S.
516, 517–518, 524–525 (1960), or to entrench political majorities, see,
e.g., Vieth v. Jubelirer, 541 U.S. 267, 317–319, 324–326, 332–333
(2004) (STEVENS, J., dissenting), we are less willing to defer to the
institutional strengths of the legislature. That one may call into
question the process used to create a law is not a reason to “disregar[d]”
“sufficiently strong,” “valid[,] neutral justifications” for an otherwise
“nondiscriminatory” policy. Crawford, 553 U.S., at 204. But it is a
reason to examine more carefully the justifications for that measure.
4 DOE v. REED
Opinion of STEVENS, J.
and laws either anonymously or not at all.’ ” McIntyre, 514
U.S., at 342.4
In my view, this is unlikely to occur in cases involving
the PRA. Any burden on speech that petitioners posit is
speculative as well as indirect. For an as-applied chal
lenge to a law such as the PRA to succeed, 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.5 Moreover, the character of
the law challenged in a referendum does not, in itself,
affect the analysis. Debates about tax policy and regula
tion of private property can become just as heated as
debates about domestic partnerships. And as a general
matter, it is very difficult to show that by later disclosing
the names of petition signatories, individuals will be less
willing to sign petitions. Just as we have in the past, I
would demand strong evidence before concluding that an
indirect and speculative chain of events imposes a sub
——————
4 JUSTICE SCALIA conceives of the issue as a right to anonymous
speech. See, e.g., post, at 1 (opinion concurring in judgment). But our
decision in McIntyre posited no such freewheeling right. The Constitu
tion protects “freedom of speech.” Amdt. 1; see also McIntyre, 514 U.S.,
at 336 (“The question presented is whether [a] . . . statute that prohib
its the distribution of anonymous campaign literature is a ‘law . . .
abridging the freedom of speech’ within the meaning of the First
Amendment”). That freedom can be burdened by a law that exposes
the speaker to fines, as much as it can be burdened by a law that
exposes a speaker to harassment, changes the content of his speech, or
prejudices others against his message. See id., at 342. The right,
however, is the right to speak, not the right to speak without being
fined or the right to speak anonymously.
5 A rare case may also arise in which the level of threat to any indi
vidual is not quite so high but a State’s disclosure would substantially
limit a group’s ability to “garner the number of signatures necessary to
place [a] matter on the ballot,” thereby “limiting [its] ability to make
the matter the focus of statewide discussion.” Meyer v. Grant, 486 U.S.
414, 423 (1988).
Cite as: 561 U. S. ____ (2010) 5
Opinion of STEVENS, J.
stantial burden on speech.6 A statute “is not to be upset
upon hypothetical and unreal possibilities, if it would be
good upon the facts as they are.” Pullman Co. v. Knott,
235 U.S. 23, 26 (1914).
* * *
Accordingly, I concur with the opinion of the Court to
the extent that it is not inconsistent with my own, and I
concur in the judgment.
——————
6 See, e.g., Bates v. Little Rock, 361 U.S., at 521–522, 523–524; Buck
ley v. Valeo, 424 U.S. 1, 69–72 (1976) (per curiam); Brown v. Socialist
Workers ’74 Campaign Comm. (Ohio), 459 U.S. 87, 98–101 (1982);
Buckley v. American Constitutional Law Foundation, Inc., 525 U.S.
182, 197–198 (1999).
Cite as: 561 U. S. ____ (2010) 1
SCALIA, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–559
_________________
JOHN DOE #1, ET AL., PETITIONERS v. SAM REED,
WASHINGTON SECRETARY OF STATE, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 24, 2010]
JUSTICE SCALIA, concurring in the judgment.
Plaintiffs claim the First Amendment, as applied to the
States through the Fourteenth Amendment, forbids the
State of Washington to release to the public signed refer
endum petitions, which they submitted to the State in
order to suspend operation of a law and put it to a popular
vote. I doubt whether signing a petition that has the
effect of suspending a law fits within “the freedom of
speech” at all. But even if, as the Court concludes, ante, at
5, it does, a long history of practice shows that the First
Amendment does not prohibit public disclosure.
I
We should not repeat and extend the mistake of McIn
tyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995).
There, with neither textual support nor precedents requir
ing the result, the Court invalidated a form of election
regulation that had been widely used by the States since
the end of the 19th century. Id., at 371 (SCALIA, J., dis
senting). The Court held that an Ohio statute prohibiting
the distribution of anonymous campaign literature vio
lated the First and Fourteenth Amendments.
Mrs. McIntyre sought a general right to “speak” anony
mously about a referendum. Here, plaintiffs go one step
further—they seek a general right to participate anony
2 DOE v. REED
SCALIA, J., concurring in judgment
mously in the referendum itself.1 Referendum petitions
are subject to public disclosure under the Public Records
Act (PRA), Wash. Rev. Code §42.56.001 et seq., which
requires government agencies to “make available for
public inspection and copying all public records,” subject to
certain exemptions not relevant here. §42.56.070(1)
(2008). Plaintiffs contend that disclosure of the names,
and other personal information included on the petitions,
of those who took this legislative action violates their First
Amendment right to anonymity.
Today’s opinion acknowledges such a right, finding that
it can be denied here only because of the State’s interest in
“preserving the integrity of the electoral process,” ante, at
8. In my view this is not a matter for judicial interest
balancing. Our Nation’s longstanding traditions of legis
lating and voting in public refute the claim that the First
Amendment accords a right to anonymity in the perform
ance of an act with governmental effect. “A governmental
practice that has become general throughout the United
——————
1 Plaintiffs seem to disavow reliance on McIntyre v. Ohio Elections
Comm’n, 514 U.S. 334 (1995), see Reply Brief for Petitioners 12.
Certainly, there are differences between McIntyre and this case. Mrs.
McIntyre was required to disclose her identity herself, by placing her
name on her handbill. Here, plaintiffs do not object to signing their
names to the referendum petition, where it can presumably be observed
by later signers; they challenge only the later disclosure of that infor
mation by the State. But both cases are about public disclosure, and
both involve a claim to anonymity under the First Amendment. If
anything, the line plaintiffs seek to draw—which seeks a sort of partial
anonymity—is stranger still.
JUSTICE STEVENS quibbles with the shorthand I use, and tries to rein
in McIntyre’s holding, by saying that it did not create a “right to speak
anonymously,” ante, at 4, n. 4 (opinion concurring in part and concur
ring in judgment). But McIntyre used the same shorthand. See 514
U.S., at 357 (“[t]he right to remain anonymous”); id., at 342 (“[t]he
freedom to publish anonymously”); see also ibid. (“an author’s decision
to remain anonymous . . . is an aspect of the freedom of speech pro
tected by the First Amendment”).
Cite as: 561 U. S. ____ (2010) 3
SCALIA, J., concurring in judgment
States, and particularly one that has the validation of
long, accepted usage, bears a strong presumption of con-
stitutionality.” McIntyre, supra, at 375 (SCALIA, J.,
dissenting).
A
When a Washington voter signs a referendum petition
subject to the PRA, he is acting as a legislator. The Wash
ington Constitution vests “[t]he legislative authority” of
the State in the legislature, but “the people reserve to
themselves the power . . . to approve or reject at the polls
any act, item, section, or part of any bill, act, or law passed
by the legislature.” Art. 2, §1. This “referendum” power of
popular legislation is exercised by submitting a petition, in
accordance with certain specifications, to the Washington
secretary of state with valid signatures of registered vot
ers in number equal to or exceeding four percent of the
votes cast in the last gubernatorial election. §1(b); Wash.
Rev. Code §29A.72.100, 130, 140, 150, 160 (2008).
The filing of a referendum petition that satisfies these
requirements has two legal effects: (1) It requires the
secretary to place the measure referred to the people on
the ballot at the next general election; and (2) it suspends
operation of the measure, causing it only to have effect 30
days after it is approved during that election. Art. 2,
§1(d). See Brief for Respondent Sam Reed, Secretary of
State of Washington 2–6. A voter who signs a referendum
petition is therefore exercising legislative power because
his signature, somewhat like a vote for or against a bill in
the legislature, seeks to affect the legal force of the meas
ure at issue.2
——————
2 The Court notes that “only some petition signing has legal effect.”
Ante, at 8, n. 1. That is true. Some petitions may never be submitted
to the secretary; they are irrelevant here, since they will never be
subject to the PRA. But some petitions that are submitted to the
secretary may lack the requisite number of signatures. Even as to
4 DOE v. REED
SCALIA, J., concurring in judgment
Plaintiffs point to no precedent from this Court holding
that legislating is protected by the First Amendment.3
Nor do they identify historical evidence demonstrating
that “the freedom of speech” the First Amendment codified
encompassed a right to legislate without public disclosure.
This should come as no surprise; the exercise of lawmak
ing power in the United States has traditionally been
public.
The public nature of federal lawmaking is constitution
ally required. Article I, §5, cl. 3 requires Congress to
legislate in public: “Each House shall keep a Journal of its
Proceedings, and from time to time publish the same,
excepting such Parts as may in their Judgment require
Secrecy; and the Yeas and Nays of the Members of either
House on any question shall, at the Desire of one fifth of
those Present, be entered on the Journal.”4 State constitu
——————
those, the petition signer has exercised his portion of the legislative
power when he signs the petition, much like a legislator who casts a
losing vote.
3 The Court quotes Republican Party of Minn. v. White, 536 U.S. 765,
788 (2002), which stated that a State “having ‘cho[sen] to tap the
energy and the legitimizing power of the democratic process, . . . must
accord the participants in that process the First Amendment rights
that attach to their roles.’ ” Ante, at 6. That is correct, but it is not on
point. White involved a prohibition on speaking as a condition of
running for judicial office. I do not suggest that a State could require
legislators (or the citizen-legislators who participate in a referendum)
to give up First Amendment rights unconnected with their act of
legislating. The electioneering disclosure cases the Court cites, ante, at
7, are likewise not on point, since they involve disclosure requirements
applied to political speech, not legislative action.
4 The exception for “such Parts as may in their Judgment require
Secrecy” was assuredly not designed to permit anonymous voting. It
refers to details whose disclosure would threaten an important national
interest. The similar clause in the Articles of Confederation created an
exception to the journal requirement for parts of the proceedings
“relating to treaties, alliances or military operations, as in [Congress’s]
judgment require secresy.” Art. IX. The Constitution’s requirement is
broader, but its object is obviously the same.
Cite as: 561 U. S. ____ (2010) 5
SCALIA, J., concurring in judgment
tions enacted around the time of the founding had similar
provisions. See, e.g., Ky. Const., Art. I, §20 (1792); Ga.
Const., Art. I, §15 (1798). The desirability of public ac
countability was obvious. “[A]s to the votes of representa
tives and senators in Congress, no man has yet been bold
enough to vindicate a secret or ballot vote, as either more
safe or more wise, more promotive of independence in the
members, or more beneficial to their constituents.” 1 J.
Story, Commentaries on the Constitution §841, p. 591
(4th ed. 1873).
Moreover, even when the people asked Congress for
legislative changes—by exercising their constitutional
right “to petition the Government for a redress of griev
ances,” U. S. Const., Amdt. 1—they did so publicly. The
petition was read aloud in Congress. Mazzone, Freedom’s
Associations, 77 Wash. L. Rev. 639, 726 (2002). The peti
tioner’s name (when large groups were not involved), his
request, and what action Congress had taken on the peti
tion were consistently recorded in the House and Senate
Journals. See, e.g., Journal of the Senate, June 18, 1790,
1st Cong., 1st Sess., 163; Journal of the House of Repre
sentatives, Nov. 24, 1820, 16th Cong., 2d Sess., 32. Even
when the people exercised legislative power directly, they
did so not anonymously, but openly in town hall meetings.
See generally J. Zimmerman, The New England Town
Meeting (1999).
Petitioning the government and participating in the
traditional town meeting were precursors of the modern
initiative and referendum. Those innovations were mod
eled after similar devices used by the Swiss democracy in
the 1800’s, and were first used in the United States by
South Dakota in 1898. See S. Piott, Giving Voters a Voice
1–3, 16 (2003). The most influential advocate of the initia
tive and referendum in the United States analogized the
Swiss practice to the town meeting, because both “re
quired open conduct of political affairs and free expression
6 DOE v. REED
SCALIA, J., concurring in judgment
of opinions.” Id., at 5 (discussing J. W. Sullivan, Direct
Legislation by the Citizenship through the Initiative and
Referendum (1892)). Plaintiffs’ argument implies that the
public nature of these practices, so longstanding and
unquestioned, violated the freedom of speech. There is no
historical support for such a claim.
B
Legislating was not the only governmental act that was
public in America. Voting was public until 1888 when the
States began to adopt the Australian secret ballot. See
Burson v. Freeman, 504 U.S. 191, 203 (1992) (plurality
opinion). We have acknowledged the existence of a First
Amendment interest in voting, see, e.g., Burdick v. Taku
shi, 504 U.S. 428 (1992), but we have never said that it
includes the right to vote anonymously. The history of
voting in the United States completely undermines that
claim.
Initially, the Colonies mostly continued the English
traditions of voting by a show of hands or by voice—viva
voce voting. Burson, supra, at 200; E. Evans, A History of
the Australian Ballot System in the United States 1–6
(1917) (Evans). One scholar described the viva voce sys
tem as follows:
“ ‘The election judges, who were magistrates, sat upon
a bench with their clerks before them. Where practi
cable, it was customary for the candidates to be pre
sent in person, and to occupy a seat at the side of the
judges. As the voter appeared, his name was called
out in a loud voice. The judges inquired, “John Jones
(or Smith), for whom do you vote?”—for governor, or
whatever was the office to be filled. He replied by
proclaiming the name of his favorite. Then the clerks
enrolled the vote, and the judges announced it as en
rolled. The representative of the candidate for whom
he voted arose, bowed, and thanked him aloud; and
Cite as: 561 U. S. ____ (2010) 7
SCALIA, J., concurring in judgment
his partisans often applauded.’ ” Id., at 5 (quoting
J. Wise, The End of An Era 55–56 (1899)).
See also R. Dinkin, A Study of Elections in the Original
Thirteen States, 1776–1789, p. 101 (1982) (Dinkin).
Although there was variation, the election official would
ordinarily compile a poll with the name and residence of
each voter, and the name of the candidate for whom he
voted. See C. Bishop, History of Elections in the American
Colonies 160–64 (1893) (Bishop); P. Argersinger, Struc
ture, Process, and Party: Essays in American Political
History 47 (1992) (Argersinger). To prevent fraud, the
Colonies in Rhode Island, New York, and New Jersey
adopted the English rule that “copies of the poll must be
delivered on demand to persons who were willing to pay a
reasonable charge for the labor of writing them.” Bishop
186. Some colonies allowed candidates to demand a copy
of the poll, ibid., and required the legislature to examine
the poll in a contested election, id., at 188–189. Thus, as
in this case, the government not only publicly collected
identifying information about who voted and for which
candidate, it also disclosed that information to the public.
Any suggestion that viva voce voting infringed the ac
cepted understanding of the pre-existing freedom of
speech to which the First Amendment’s text refers is
refuted by the fact that several state constitutions that
required or authorized viva voce voting also explicitly
guaranteed the freedom of speech. See, e.g., Ky. Const.,
Art. X, §7, Art. VI, §16 (1799); Ill. Const., Art. VIII, §22,
Art. I, §28 (1818). Surely one constitutional provision did
not render the other invalid.
Of course the practice of viva voce voting was gradually
replaced with the paper ballot, which was thought to
reduce fraud and undue influence. See Evans 1–6; Dinkin
101–106. There is no indication that the shift resulted
from a sudden realization that public voting infringed
8 DOE v. REED
SCALIA, J., concurring in judgment
voters’ freedom of speech, and the manner in which it
occurred suggests the contrary. States adopted the paper
ballot at different times, and some States changed meth
ods multiple times. New York’s 1777 Constitution, for
example, explicitly provided for the State to switch be
tween methods. Art. VI. Kentucky’s 1792 Constitution
required paper ballots, Art. III, §2, but its 1799 Constitu
tion required viva voce voting, Art. VI, §16. The different
voting methods simply reflected different views about how
democracy should function. One scholar described Vir
ginia’s and Kentucky’s steadfast use of viva voce voting
through the Civil War as follows: “[I]n the appeal to un
flinching manliness at the polls these two states insisted
still that every voter should show at the hustings the
courage of his personal conviction.” Schouler, Evolution of
the American Voter, 2 The American Historical Review
665, 671 (1897). See also id., at 666–667 (“In Virginia and
the other states in close affiliation with her this oral ex
pression was vaunted as the privilege of the free-born
voter, to show the faith that was in him by an outspoken
announcement of his candidate”).
The new paper ballots did not make voting anonymous.
See Evans 10 (“[T]he ballot was not secret”); Argersinger
48 (“Certainly there were no legal provisions to ensure
secrecy”). Initially, many States did not regulate the form
of the paper ballot. See Evans 10; Argersinger 48–49.
Taking advantage of this, political parties began printing
ballots with their candidates’ names on them. They used
brightly colored paper and other distinctive markings so
that the ballots could be recognized from a distance, mak
ing the votes public. See Burson, supra, at 200–201;
Evans 10–11. Abuse of these unofficial paper ballots was
rampant. The polling place had become an “open auction
place” where votes could be freely bought or coerced.
Burson, supra, at 202. Employers threatened employees.
Party workers kept voters from the other party away from
Cite as: 561 U. S. ____ (2010) 9
SCALIA, J., concurring in judgment
the ballot box. Ballot peddlers paid voters and then
watched them place the ballot in the box. See L. Fredman,
The Australian Ballot: The Story of an American Reform
22–29 (1968); Argersinger 48–50. Thus, although some
state courts said that voting by ballot was meant to be
more secret than the public act of viva voce voting; and
although some state constitutional requirements of ballot
voting were held to guarantee ballot secrecy, thus prohib
iting the numbering of ballots for voter identification
purposes, see Williams v. Stein, 38 Ind. 89 (1871); Brisbin
v. Cleary, 26 Minn. 107, 1 N.W. 825 (1879); in general,
voting by ballot was by no means secret. Most important
of all for present purposes, I am aware of no assertion of
ballot secrecy that relied on federal or state constitutional
guarantees of freedom of speech.
It was precisely discontent over the nonsecret nature of
ballot voting, and the abuses that produced, which led to
the States’ adoption of the Australian secret ballot. New
York and Massachusetts began that movement in 1888,
and almost 90 percent of the States had followed suit by
1896. Burson, 504 U.S., at 203–205. But I am aware of
no contention that the Australian system was required by
the First Amendment (or the state counterparts). That
would have been utterly implausible, since the inhabitants
of the Colonies, the States, and the United States had
found public voting entirely compatible with “the freedom
of speech” for several centuries.
* * *
The long history of public legislating and voting contra
dicts plaintiffs’ claim that disclosure of petition signatures
having legislative effect violates the First Amendment. As
I said in McIntyre, “[w]here the meaning of a constitu
tional text (such as ‘the freedom of speech’) is unclear, the
widespread and long-accepted practices of the American
people are the best indication of what fundamental beliefs
10 DOE v. REED
SCALIA, J., concurring in judgment
it was intended to enshrine.” 514 U.S., at 378 (dissenting
opinion). Just as the century-old practice of States’ pro
hibiting anonymous electioneering was sufficient for me to
reject the First Amendment claim to anonymity in McIn
tyre, the many-centuries-old practices of public legislating
and voting are sufficient for me to reject plaintiffs’ claim.
Plaintiffs raise concerns that the disclosure of petition
signatures may lead to threats and intimidation. Of
course nothing prevents the people of Washington from
keeping petition signatures secret to avoid that—just as
nothing prevented the States from moving to the secret
ballot. But there is no constitutional basis for this Court
to impose that course upon the States—or to insist (as
today’s opinion does) that it can only be avoided by the
demonstration of a “sufficiently important governmental
interest,” ante, at 7 (internal quotation marks omitted).
And it may even be a bad idea to keep petition signatures
secret. There are laws against threats and intimidation;
and harsh criticism, short of unlawful action, is a price our
people have traditionally been willing to pay for self
governance. Requiring people to stand up in public for
their political acts fosters civic courage, without which
democracy is doomed. For my part, I do not look forward
to a society which, thanks to the Supreme Court, cam
paigns anonymously (McIntyre) 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.
Cite as: 561 U. S. ____ (2010) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–559
_________________
JOHN DOE #1, ET AL., PETITIONERS v. SAM REED,
WASHINGTON SECRETARY OF STATE, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 24, 2010]
JUSTICE THOMAS, dissenting.
Just as “[c]onfidence in the integrity of our electoral
processes is essential to the functioning of our participa
tory democracy,” Purcell v. Gonzalez, 549 U.S. 1, 4 (2006)
(per curiam), so too is citizen participation in those proc
esses, which necessarily entails political speech and asso
ciation under the First Amendment. In my view, com
pelled disclosure of signed referendum and initiative
petitions1 under the Washington Public Records Act
(PRA), Wash. Rev. Code §42.56.001, et seq. (2008), severely
burdens those rights and chills citizen participation in the
referendum process. Given those burdens, I would hold
that Washington’s decision to subject all referendum
petitions to public disclosure is unconstitutional because
there will always be a less restrictive means by which
Washington can vindicate its stated interest in preserving
the integrity of its referendum process. I respectfully
dissent.
——————
1 Generally speaking, in a referendum, voters approve or reject an Act
already passed by the legislature. In an initiative, voters adopt or
reject an entirely new law, either a statute or a constitutional amend
ment. See T. Cronin, Direct Democracy: The Politics of Initiative,
Referendum, and Recall 2 (1989).
2 DOE v. REED
THOMAS, J., dissenting
I
This case concerns the interaction of two distinct sets of
Washington statutes. The first set, codified in Washing
ton’s Election Code, regulates the referendum and initia
tive process. These statutes require, among other things,
that referendum signers write their names and addresses
on petition sheets, and mandate that this information
be disclosed to Washington’s secretary of state for canvass
ing and verification. See, e.g., §§29A.72.130, 29A.72.230
(2008). Petitioners do not contend that these require
ments violate their First Amendment rights; that is, they
do not argue that the Constitution allows them to support
a referendum measure without disclosing their names to
the State.
The second set of statutes—the PRA—is not a referen
dum or election regulation. Rather, the PRA requires
disclosure of all nonexempt “public records” upon request
by any person. See §§42.56.010(2), 42.56.070. Washing
ton has concluded that signed referendum petitions are
“public records” subject to disclosure under the PRA, and
has “routinely disclosed petitions in response to public
records requests.” Brief for Respondent Reed 5–6.
Petitioners do not challenge the constitutionality of the
PRA generally. They contend only that Washington vio
lates their First Amendment rights by construing the PRA
to apply to signed referendum petitions. See Brief for
Petitioners 35–39. As the Court notes, the parties dispute
whether this challenge is best conceived as a facial chal
lenge or an as-applied challenge. See ante, at 5. In my
view, the Court correctly concludes that petitioners must
“satisfy our standards for a facial challenge” because their
claim, and the relief that they seek, “reach beyond” their
“particular circumstances.” Ibid.
We typically disfavor facial challenges. See Washington
State Grange v. Washington State Republican Party, 552
U.S. 442, 449 (2008). They “often rest on speculation,”
Cite as: 561 U. S. ____ (2010) 3
THOMAS, J., dissenting
can lead courts unnecessarily to anticipate constitutional
questions or formulate broad constitutional rules, and may
prevent governmental officers from implementing laws “in
a manner consistent with the Constitution.” Id., at 450–
451. For those reasons, we rejected in Washington State
Grange political parties’ pre-enforcement facial challenge
to a Washington initiative that allowed candidates in a
primary election to self-designate their political party
preference on the primary election ballot. See id., at 458–
459. Because the challenge was a pre-enforcement one,
Washington “had no opportunity to implement” the initia
tive, id., at 450, so the political parties’ arguments that it
violated their association rights all depended “on the
possibility that voters will be confused as to the meaning
of the party-preference designation,” id., at 454. More
over, a facial challenge was inappropriate because the
regulation did “not on its face impose a severe burden on
political parties’ associational rights.” Id., at 444.
Those considerations point in the opposite direction
here. Washington’s construction of the PRA “on its face
impose[s] a severe burden,” ibid.—compelled disclosure of
privacy in political association protected by the First
Amendment, see infra, at 4–5—on all referendum signers.
And Washington has had several “opportunit[ies] to im
plement” the PRA’s disclosure requirements with respect
to initiative petitions. Washington State Grange, supra, at
450. Indeed, Washington admits that “[a]ll petitions for
initiatives, referendum, recall, and candidate nomination
are public records subject to disclosure.” Brief for Respon
dent Reed 59; see also App. 26 (listing six completed re
quests for disclosure of signed initiative petitions since
2006). Washington thus has eliminated any “possibility”
that referendum petition signers “will be confused as to”
how the State will respond to a request under the PRA to
disclose their names and addresses. Washington State
Grange, 552 U.S., at 454.
4 DOE v. REED
THOMAS, J., dissenting
Accordingly, I would consider petitioners’ facial chal
lenge here. For purposes of this case, I will assume that to
prevail, petitioners must satisfy our most rigorous stan
dard, and show that there is “ ‘no set of circumstances . . .
under which the’ ” PRA could be constitutionally applied to
a referendum or initiative petition, “i.e., that the [PRA] is
unconstitutional in all of its applications,” id., at 449
(quoting United States v. Salerno, 481 U.S. 739, 745
(1987)).
II
A
The Court correctly concludes that “an individual ex
presses” a “political view” by signing a referendum peti
tion. Ante, at 5. The Court also rightly rejects the base
less argument that such expressive activity falls “outside
the scope of the First Amendment” merely because “it has
legal effect in the electoral process.” Ante, at 6. Yet, the
Court does not acknowledge the full constitutional impli
cations of these conclusions.
The expressive political activity of signing a referendum
petition is a paradigmatic example of “the practice of
persons sharing common views banding together to
achieve a common end.” Citizens Against Rent Con
trol/Coalition for Fair Housing v. Berkeley, 454 U.S. 290,
294 (1981). A referendum supported by only one person’s
signature is a nullity; it will never be placed on the ballot.
The Doe petitioners recognized as much when they—and
more than 120,000 other Washingtonians, see ante, at 3—
joined with petitioner Protect Marriage Washington, “a
state political action committee” organized under
§42.17.040, to effect Protect Marriage Washington’s “major
purpose” of collecting enough valid signatures to place
Referendum 71 on the general election ballot. App. to Pet.
for Cert. 29a. For these reasons, signing a referendum
petition amounts to “ ‘political association’ ” protected by
Cite as: 561 U. S. ____ (2010) 5
THOMAS, J., dissenting
the First Amendment. Citizens Against Rent Control,
supra, at 295 (quoting Buckley v. Valeo, 424 U.S. 1, 15
(1976) (per curiam)).
This Court has long recognized the “vital relationship
between” political association “and privacy in one’s asso
ciations,” NAACP v. Alabama ex rel. Patterson, 357 U.S.
449, 462 (1958), and held that “[t]he Constitution protects
against the compelled disclosure of political associations
and beliefs,” Brown v. Socialist Workers ’74 Campaign
Comm. (Ohio), 459 U.S. 87, 91 (1982). This constitutional
protection “yield[s] only to a subordinating interest of the
State that is compelling, and then only if there is a sub
stantial relation between the information sought and an
overriding and compelling state interest.” Id., at 91–92
(internal quotation marks, citations, and brackets omit
ted). Thus, unlike the Court, I read our precedents to
require application of strict scrutiny to laws that compel
disclosure of protected First Amendment association.
Buckley v. American Constitutional Law Foundation, Inc.,
525 U.S. 182, 206, 212 (1999) (ACLF) (THOMAS, J., con
curring in judgment). Under that standard, a disclosure
requirement passes constitutional muster only if it is
narrowly tailored—i.e., the least restrictive means—to
serve a compelling state interest. See id., at 206.
B
Washington’s application of the PRA to a referendum
petition does not survive strict scrutiny.
1
Washington first contends that it has a compelling
interest in “transparency and accountability,” which it
claims encompasses several subordinate interests: pre
serving the integrity of its election process, preventing
corruption, deterring fraud, and correcting mistakes by
the secretary of state or by petition signers. See Brief for
6 DOE v. REED
THOMAS, J., dissenting
Respondent Reed 40–42; 57–59.
It is true that a State has a substantial interest in regu
lating its referendum and initiative processes “to protect
the[ir] integrity and reliability.” ACLF, 525 U.S., at 191.
But Washington points to no precedent from this Court
recognizing “correcting errors” as a distinct compelling
interest that could support disclosure regulations. And
our cases strongly suggest that preventing corruption and
deterring fraud bear less weight in this particular elec
toral context: the signature-gathering stage of a referen
dum or initiative drive. The Court has twice observed that
“ ‘the risk of fraud or corruption, or the appearance
thereof, is more remote at the petition stage of an initia
tive than at the time of balloting.’ ” Id., at 203 (quoting
Meyer v. Grant, 486 U.S. 414, 427 (1988)). Similarly,
because “[r]eferenda are held on issues, not candidates for
public office,” the “risk of corruption perceived in cases
involving candidate elections simply is not present in a
popular vote on a public issue.” First Nat. Bank of Boston
v. Bellotti, 435 U.S. 765, 790 (1978) (citations omitted).
We should not abandon those principles merely because
Washington and its amici can point to a mere eight in
stances of initiative-related fraud, see Brief for Respon
dent Reed 42; Brief for State of Ohio et al. as Amici Curiae
22–24, among the 809 initiative measures placed on
state ballots in this country between 1988 and 2008,
see Initiative and Referendum Institute, Initiative Use
2 (Feb. 2009), online at http://www.iandrinstitute.org/
IRI%20Initiative%20Use%20(1904-2008).pdf (as visited
June 21, 2010, and available in Clerk of Court’s case file).
If anything, these meager figures reinforce the conclusion
that the risks of fraud or corruption in the initiative and
referendum process are remote and thereby undermine
Washington’s claim that those two interests should be
considered compelling for purposes of strict scrutiny.
Thus, I am not persuaded that Washington’s interest in
Cite as: 561 U. S. ____ (2010) 7
THOMAS, J., dissenting
protecting the integrity and reliability of its referendum
process, as the State has defined that interest, is compel
ling. But I need not answer that question here. Even
assuming the interest is compelling, on-demand disclosure
of a referendum petition to any person under the PRA is “a
blunderbuss approach” to furthering that interest, Colo
rado Republican Federal Campaign Comm. v. Federal
Election Comm’n, 518 U.S. 604, 642 (1996) (THOMAS, J.,
concurring in judgment and dissenting in part) (internal
quotation marks omitted), not the least restrictive means
of doing so. The events that prompted petitioners’ com
plaint in this case demonstrate as much.
As Washington explained during oral argument, after
the secretary of state receives signed referendum peti
tions, his “first step . . . is to take them to his archiving
section and to have them digitized. As soon as they’re
digitized, they’re available on disks for anyone who re
quests them” under the PRA. Tr. of Oral Arg. 30. In this
case, two organizations announced their intention to
obtain the digitized names and addresses of referendum
signers and post them “online, in a searchable format.”
Ante, at 3.
There is no apparent reason why Washington must
broadly disclose referendum signers’ names and addresses
in this manner to vindicate the interest that it invokes
here. Washington—which is in possession of that infor
mation because of referendum regulations that petitioners
do not challenge, see supra, at 2—could put the names and
addresses of referendum signers into a similar electronic
database that state employees could search without sub
jecting the name and address of each signer to wholesale
public disclosure. The secretary could electronically cross
reference the referendum database against the “statewide
voter registration list” contained in Washington’s “state
8 DOE v. REED
THOMAS, J., dissenting
wide voter registration database,” §29A.08.651(1),2 to
ensure that each referendum signer meets Washington’s
residency and voter registration requirements, see
§29A.72.130. Doing so presumably would drastically
reduce or eliminate possible errors or mistakes that Wash
ington argues the secretary might make, see Brief for
Respondent Reed 42, since it would allow the secretary to
verify virtually all of the signatures instead of the mere “3
to 5%” he “ordinarily checks,” ante, at 9 (internal quota
tion marks omitted).3
An electronic referendum database would also enable
the secretary to determine whether multiple entries corre
spond to a single registered voter, thereby detecting
whether a voter had signed the petition more than once.
In addition, the database would protect victims of “for
gery” or “ ‘bait and switch’ fraud.” Ibid. In Washington, “a
unique identifier is assigned to each legally registered
voter in the state.” §29A.08.651(4). Washington could
create a Web site, linked to the electronic referendum
database, where a voter concerned that his name had been
fraudulently signed could conduct a search using his
unique identifier to ensure that his name was absent from
the database—without requiring disclosure of the names
and addresses of all the voluntary, legitimate signers.
Washington admits that creating this sort of electronic
referendum database “could be done.” Tr. of Oral Arg. 51.
Implementing such a system would not place a heavy
burden on Washington; “the Secretary of State’s staff”
——————
2 UnderWashington law, this “computerized list must serve as the
single system for storing and maintaining the official list of registered
voters throughout the state” and “must contain the name and registra
tion information of every legally registered voter in the state.” Wash.
Rev. Code §§29A.08.651(2)–(3) (2008).
3 See §29A.72.230 (permitting the secretary of state to verify and
canvass referendum petitions using approved statistical sampling
methods).
Cite as: 561 U. S. ____ (2010) 9
THOMAS, J., dissenting
already uses an “electronic voter registration database” in
its “verification process.” Id., at 50.
Washington nevertheless contends that its citizens must
“have access to public records . . . to independently evalu
ate whether the Secretary properly determined to certify
or not to certify a referendum to the ballot.” Brief for
Respondent Reed 41. “[W]ithout the access to signed
petitions that the PRA provides,” Washington argues, its
“citizens could not fulfill their role as the final judge of
public business.” Ibid. (internal quotation marks omitted).
But Washington’s Election Code already gives Washing
ton voters access to referendum petition data. Under
§29A.72.230, “[t]he verification and canvass of signatures
on the [referendum] petition may be observed by persons
representing the advocates and opponents of the proposed
measure so long as they make no record of the names,
addresses, or other information on the petitions or related
records except upon” court order. Each side is entitled to
at least two such observers, although the secretary may
increase that number if, in his opinion, doing so would not
“cause undue delay or disruption of the verification proc
ess.” Ibid.
Washington does not explain why this existing access,
which petitioners do not challenge here, is insufficient to
permit its citizens to oversee the verification process un
der §29A.72.230, or to decide intelligently whether to
pursue a court challenge under §29A.72.240. Moreover, if
Washington had implemented the more narrowly tailored
electronic referendum database discussed above, observers
could see the secretary of state’s employees examine the
data using exactly the same techniques they would use if
the data were released to them under the PRA. Obtaining
a digitized list to navigate on their own computer would
not allow an observer to learn any additional information.
Washington law also contains several other measures
that preserve the integrity of the referendum process.
10 DOE v. REED
THOMAS, J., dissenting
First, it is a crime in Washington to forge a signature on a
referendum petition, or to knowingly sign one more than
once. See §29A.84.230. Second, referendum supporters
must gather a large number of valid signatures—four
percent of the votes cast for Governor in the immediately
preceding gubernatorial election—to place a referendum
petition on the ballot. §29A.72.150. Third, Washington’s
required referendum petition form limits each petition to a
single subject. See §29A.72.130. Fourth, a large, plain-
English warning must appear at the top of the referendum
petition, alerting signers to the law’s requirements. See
§29A.72.140. Fifth, Washington prescribes the text of the
declaration that a circulator must submit along with the
signed petition sheets. See §29A.72.130. Sixth, Washing
ton prescribes verification and canvassing methods. See
§29A.72.230.
The Court’s dismissive treatment of those provisions,
see ante, at 9, is perplexing, given the analysis that the
Court endorsed in ACLF. There, the Court held that two
disclosure requirements governing Colorado’s initiative
process were unconstitutional, see 525 U.S., at 186–187,
specifically finding that they were “not warranted by the
state interests (administrative efficiency, fraud detection,
informing voters) alleged to justify” them, and emphasiz
ing that its “judgment [wa]s informed by other means
Colorado employs to accomplish its regulatory purposes.”
Id., at 192. The entire last section of the Court’s opinion
detailed those “less problematic measures” by which Colo
rado “can and d[id] meet” its “substantial interests in
regulating the ballot-initiative process.” Id., at 204 (em
phasis added). With one exception—a law deeming an
initiative void if the circulator violated any law applicable
to the circulation process—those Colorado laws correspond
exactly to the Washington regulatory requirements listed
above. See id., at 205. Including the observer provision,
§29A.72.230, and the provision permitting court review of
Cite as: 561 U. S. ____ (2010) 11
THOMAS, J., dissenting
the secretary’s decision to certify (or not to certify) a refer
endum petition, §29A.72.240, Washington thus appears to
provide even more of the “less problematic measures” than
Colorado did to “protect the integrity of the initiative
process,” ACLF, supra, at 204, and I see no reason why
Washington’s identical provisions should not “inform” the
analysis here.
It is readily apparent that Washington can vindicate its
stated interest in “transparency and accountability”
through a number of more narrowly tailored means than
wholesale public disclosure. Accordingly, this interest
cannot justify applying the PRA to a referendum petition.
2
Washington also contends that it has a compelling
interest in “providing relevant information to Washington
voters,” and that on-demand disclosure to the public is a
narrowly tailored means of furthering that interest. Brief
for Respondent Reed 44. This argument is easily dis
patched, since this Court has already rejected it in a simi
lar context.
In McIntyre v. Ohio Elections Comm’n, 514 U.S. 334
(1995), the Court held that an Ohio law prohibiting
anonymous political pamphleting violated the First
Amendment. One of the interests Ohio had invoked to
justify that law was identical to Washington’s here: the
“interest in providing the electorate with relevant infor
mation.” Id., at 348. The Court called that interest
“plainly insufficient to support the constitutionality of
[Ohio’s] disclosure requirement.” Id., at 349. “The simple
interest in providing voters with additional relevant in
formation does not justify a state requirement that a
writer make statements or disclosures she would other
wise omit.” Id., at 348. “Don’t underestimate the common
man,” we advised. Id., at 348, n. 11 (internal quotation
marks omitted).
12 DOE v. REED
THOMAS, J., dissenting
“People are intelligent enough to evaluate the source
of an anonymous writing. They can see it is anony
mous. They know it is anonymous. They can evalu
ate its anonymity along with its message. . . . And
then, once they have done so, it is for them to decide
what is ‘responsible,’ what is valuable, and what is
truth.” Ibid. (internal quotation marks omitted).
See also Bellotti, 435 U.S., at 777 (“The inherent worth of
the speech in terms of its capacity for informing the public
does not depend upon the identity of its source”).
This observation applies equally to referendum meas
ures. People are intelligent enough to evaluate the merits
of a referendum without knowing who supported it. Thus,
just as this informational interest did not justify the Ohio
law in McIntyre, it does not justify applying the PRA to
referendum petitions.
C
The foregoing analysis applies in every case involving
disclosure of a referendum measure’s supporters, as it
must for petitioners’ facial challenge to succeed. See
Washington State Grange, 552 U.S., at 449 (quoting
Salerno, 481 U.S., at 745). Washington does not argue
that the strength of its transparency and accountability
interest rises or falls based on the topic of a referendum.
Nor would such an argument be convincing. We have no
basis to assume that Washington’s interest in maintaining
the integrity of its referendum process is high for a char
ter-school referendum but low for an unemployment in
surance referendum, or that a library or land-use referen
dum is more likely to be a target of fraud or corruption
than a referendum on insurance coverage and benefits.
See ante, at 11–12. The strength of Washington’s interest
remains constant across all types of referendum measures.
So too does the strength of a signer’s First Amendment
interest. The First Amendment rights at issue here are
Cite as: 561 U. S. ____ (2010) 13
THOMAS, J., dissenting
associational rights, and a long, unbroken line of this
Court’s precedents holds that privacy of association is
protected under the First Amendment. See supra, at 4–5.
The loss of associational privacy that comes with disclos
ing referendum petitions to the general public under the
PRA constitutes the same harm as to each signer of each
referendum, regardless of the topic. To be sure, a referen
dum signer may be more willing to disclose to the general
public his political association with persons signing cer
tain referendum measures than his association with oth
ers. But that choice belongs to the voter; the State may
not make it for him by ascribing a lower level of First
Amendment protection to an associational interest that
some think a voter may be (or should be) more willing to
disclose. Cf. Rosenberger v. Rector and Visitors of Univ. of
Va., 515 U.S. 819, 828 (1995) (“In the realm of private
speech or expression, government regulation may not
favor one speaker over another”).
Finally, the less restrictive means available to vindicate
Washington’s transparency and accountability interest
can be employed for all referendum measures, regardless
of topic. There is nothing measure-specific about an elec
tronic database or additional observers. And the forgery
prohibition and other existing requirements in Washing
ton law that help “protect the integrity of the initiative
process,” ACLF, 525 U.S., at 204, apply equally to all
referendum measures.
Because the strength of Washington’s interest in trans
parency and a signer’s individual First Amendment inter
est in privacy of political association remain constant
across all referendum topics, and because less restrictive
means to protect the integrity of the referendum process
are not topic specific, I would hold that on-demand public
disclosure of referendum petitions under the PRA is not
narrowly tailored for any referendum.
14 DOE v. REED
THOMAS, J., dissenting
III
Significant practical problems will result from requiring
as-applied challenges to protect referendum signers’ con
stitutional rights.
A
The Court’s approach will “require substantial litigation
over an extended time” before a potential signer of any
referendum will learn whether, if he signs a referendum,
his associational privacy right will remain intact. Citizens
United v. Federal Election Comm’n, 558 U. S. ___, ___
(2010) (slip op., at 9). And the tenacious litigant’s reward
for trying to protect his First Amendment rights? An
“interpretive process [that] itself would create an inevita
ble, pervasive, and serious risk of chilling protected speech
pending the drawing of fine distinctions that, in the end,
would themselves be questionable.” Id., at ___ (slip op., at
9–10). The large number of such fine and questionable
distinctions in these types of cases reinforces my view that
as-applied challenges provide no more than “a hollow
assurance” that referendum signers’ First Amendment
rights will be protected. Id., at __ (slip op., at 5) (THOMAS,
J., concurring in part and dissenting in part). Consider
just a few examples.
In Washington, a referendum sponsor must file the
proposed referendum with the secretary of state before
collecting signatures. See §29A.72.010. May the sponsor
seek an injunction against disclosure through an as
applied challenge before filing the proposed measure, or
simultaneously with its filing? Because signature
gathering will not have started, the sponsor will not be
able to present any evidence specific to signers or potential
signers of that particular referendum showing “a reason
able probability that the compelled disclosure [of personal
information] will subject them to threats, harassment, or
reprisals from either Government officials or private
Cite as: 561 U. S. ____ (2010) 15
THOMAS, J., dissenting
parties.” Ante, at 11 (internal quotation marks omitted).
Thus, to succeed at that stage of litigation, plaintiffs must
point to (at least) one other instance of harassment arising
from a similar referendum. The Court has never held that
such evidence would be acceptable; but if it is, that neces
sarily means that some signers, at some point, will have
suffered actual “threats, harassment, and reprisals” for
engaging in protected First Amendment activity.
If the sponsor must wait at least until signature
gathering has started on his referendum to file an as
applied challenge, it is still unclear what sort of evidence
of “threats, harassment, or reprisals” directed toward his
supporters would satisfy the Court’s standard. How many
instances of “threats, harassment or reprisals” must a
signer endure before a court may grant relief on an as
applied challenge? And how dispersed throughout the
group of the necessary 120,000 signers, see ante, at 3,
must these threats be?
More importantly, the Court’s standard does not appear
to require actual “threats, harassment, or reprisals,” but
merely a “ ‘reasonable probability’ ” that disclosure of the
signers’ names and addresses will lead to such activity.
Ante, at 11 (emphasis added). What sort of evidence suf
fices to satisfy this apparently more relaxed, though per
haps more elusive, standard? Does one instance of actual
harassment directed toward one signer mean that the
“reasonable probability” requirement is met? And again,
how widespread must this “reasonable probability” be?
The Court does not answer any of these questions, leaving
a vacuum to be filled on a case-by-case basis. This will, no
doubt, result in the “drawing of” arbitrary and “question
able” “fine distinctions” by even the most well-intentioned
district or circuit judge. Citizens United, 558 U. S., at ___
(slip op., at 9–10).
16 DOE v. REED
THOMAS, J., dissenting
B
In addition, as I have previously explained, the state of
technology today creates at least some probability that
signers of every referendum will be subjected to threats,
harassment, or reprisals if their personal information is
disclosed. “ ‘[T]he advent of the Internet’ enables” rapid
dissemination of “ ‘the information needed’ to” threaten or
harass every referendum signer. Id., at ___ (slip op., at 6)
(opinion of THOMAS, J.). “Thus, ‘disclosure permits citi
zens . . . to react to the speech of [their political opponents]
in a proper’—or undeniably improper—‘way’ long before a
plaintiff could prevail on an as-applied challenge.” Ibid.
The Court apparently disagrees, asserting that “there is
no reason to assume that any burdens imposed by disclo
sure of typical referendum petitions would be remotely
like the burdens plaintiffs fear in this case.” Ante, at 12.
That conclusion rests on the premise that some referen
dum measures are so benign that the fact of public dis
closure will not chill protected First Amendment activity.
I am not convinced that this premise is correct.
The historical evidence shows that the referendum and
initiative process first gained popularity as a means of
“provid[ing] an occasional safety valve for interests that
failed to get a fair hearing in the legislatures.” T. Cronin,
Direct Democracy: The Politics of Initiative, Referendum,
and Recall 59 (1989). Unsurprisingly, such interests
tended to be controversial by nature. Early examples
include “the single tax, prohibition, women’s suffrage,
prolabor legislation, and the graduated income tax.” Id.,
at 58. And proponents of initiative measures tended to
include politically marginalized groups such as the
“Farmer’s Alliance” in rural states; “[t]housands of labor
federations, notably the miners”; and “the Women’s Suf
frage Association,” which “saw the initiative and referen
dum as a possible new means to overcome” repeated failed
attempts in state legislatures to secure for women the
Cite as: 561 U. S. ____ (2010) 17
THOMAS, J., dissenting
right to vote. Id., at 50–51.
These characteristics of initiative and referendum
drives persist today. Consider, for example, the goal of
increasing ethics in government—a seemingly laudable
and unobjectionable goal. So thought some citizens of
Utah, who, frustrated with the state legislature’s failure to
pass ethics laws commensurate with their preferences,
filed a “21-page initiative target[ing] legislative conduct
with a broad array of reforms that would significantly
change how business gets done on Utah’s Capitol Hill.”
McKitrick, Suit Demands Secrecy for Ethics Petition
Signers, Salt Lake Tribune, Apr. 15, 2010, p. A4 (hereinaf
ter Salt Lake Tribune). But Utah law provides that
“[i]nitiative packets,” which contain the names and ad
dresses (and, in some cases, birthdates) of petition signers,
“are public once they are delivered to the county clerks”
for verification and canvassing. Utah Code Ann. §20A–7–
206(7) (2009 Lexis Supp. Pamphlet).
The attorneys sponsoring that initiative moved for an
injunction to prevent disclosure of the initiative packets
under §20A–7–206(7) because, they claimed, “ ‘[t]he [state]
Republican Party has said it will target our folks.’ ” Salt
Lake Tribune, at A4. According to these attorneys, a
facially benign initiative may well result in political retri
bution and retaliation in a State where Republicans cur
rently hold the offices of Governor, Lieutenant Governor,
attorney general, state treasurer, state auditor, and a
supermajority in both the Utah House of Representatives
(71%) and the Utah Senate (72%), see State Yellow Book:
Who’s Who in the Executive and Legislative Branches of
the 50 State Governments 650–651, 1292–1294 (Spring
2010), as well as four of the five seats in the State’s dele
gation to the United States Congress, see GPO, 2009–2010
Official Congressional Directory, 111th Cong., pp. 299, 307
(2009).
The difficulty in predicting which referendum measures
18 DOE v. REED
THOMAS, J., dissenting
will prove controversial—combined with Washington’s
default position that signed referendum petitions will be
disclosed on-demand, thereby allowing anyone to place
this information on the Internet for broad dissemination—
raises the significant probability that today’s decision will
“inhibit the exercise of legitimate First Amendment activ
ity” with respect to referendum and initiative petitions.
Colorado Republican, 518 U.S., at 634 (THOMAS, J., con
curring in judgment and dissenting in part). “[D]isclosure
requirements enable private citizens and elected officials
to implement political strategies specifically calculated to
curtail campaign-related activity and prevent the lawful,
peaceful exercise of First Amendment rights.” Citizens
United, 558 U. S., at ___ (slip op., at 5) (THOMAS, J., con
curring in part and dissenting in part). Our cases have
long recognized this reality;4 as the Court recently reiter
ated, the First Amendment does not require “case-by-case
determinations” if “archetypical” First Amendment rights
“would be chilled in the meantime.” Id., at ___ (slip op.,
at 12).
This chill in protected First Amendment activity harms
others besides the dissuaded signer. We have already
expressed deep skepticism about restrictions that “mak[e]
it less likely that” a referendum “will garner the number
of signatures necessary to place the matter on the ballot,
——————
4 See, e.g., NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462
(1958) (noting the “hardly . . . novel perception that compelled disclo
sure of affiliation with groups engaged in advocacy may constitute” an
“effective . . . restraint on freedom of association”); Bates v. Little Rock,
361 U.S. 516, 523 (1960) (“Freedoms such as” the “freedom of associa
tion for the purpose of advancing ideas and airing grievances” are
“protected not only against heavy-handed frontal attack, but also from
being stifled by more subtle government interference”); see also id., at
528 (Black and Douglas, JJ., concurring) (“First Amendment rights are
beyond abridgment either by legislation that directly restrains their
exercise or by suppression or impairment through harassment, hu
miliation, or exposure by government” (emphasis added)).
Cite as: 561 U. S. ____ (2010) 19
THOMAS, J., dissenting
thus limiting [the] ability to make the matter the focus of
statewide discussion.” Meyer, 486 U.S., at 423. Such
restrictions “inevitabl[y] . . . reduc[e] the total quantum of
speech on a public issue.” Ibid. The very public that the
PRA is supposed to serve is thus harmed by the way
Washington implements that statute here.
* * *
Petitioners do not argue that the Constitution gives
supporters of referendum petitions a right to act without
anyone knowing their identities. Thus, Washington’s
requirements that referendum supporters sign their
names and addresses to a referendum petition, and that
this information be disclosed to the State for canvassing
and verification, see Wash. Rev. Code §29A.72.230, are not
at issue. And, petitioners do not contend that Washing
ton’s citizens may never obtain access to referendum data.
Thus, Washington’s rules allowing access to at least two
representative observers from each side, see ibid., and
authorizing courts to review the secretary of state’s verifi
cation and canvassing decision if those observers are
dissatisfied with the secretary’s decision, see §29A.72.240,
are also not in question.
The Court is asked to assess the constitutionality of the
PRA only with regard to referendum petitions. The ques
tion before us is whether all signers of all referendum
petitions must resort to “substantial litigation over an
extended time,” Citizens United, supra, at ___ (slip op., at
9), to prevent Washington from trenching on their pro
tected First Amendment rights by subjecting their refer
endum-petition signatures to on-demand public disclosure.
In my view, they need not.