The U.S. Court of Appeals for the Ninth Circuit Oct. 22 reversed a preliminary injunction barring the release, under the Washington Public Records Act, of signatures on a referendum petition relating to gay rights (Doe v. Reed, 9th Cir., No. 09-35818, 10/22/09).

Plaintiff Protect Marriage Washington opposed a recently enacted state law that expands the rights and responsibilities of state-registered domestic partners. PMW circulated petitions to put the issue to a referendum that it hoped would repeal the measure. It objected, however, to making the petitions publicly available as required by the Washington Public Records Act (PRA), asserting that the PRA violates the First Amendment's free speech clause because it is not narrowly tailored to serve a compelling government interest, and that, as applied to the referendum, it is unconstitutional because “there is a reasonable probability that the signatories … will be subjected to threats, harassment, and reprisals.” The district court granted a preliminary injunction on the first ground.

In an opinion by Judge A. Wallace Tashima, the Ninth Circuit ruled that the district court erred in applying strict scrutiny to the PRA. Even assuming that a signature on a referendum petition is protected speech, it is not anonymous, and the PRA has only an “incidental” effect on such speech “by deterring some would-be signers from signing petitions,” the court found. The PRA is thus subject to intermediate scrutiny, and survives it because it furthers “important” state interests in preserving the integrity of elections and providing voters with information about who supports placing a referendum on the ballot, it held.

'Uncomfortable.'

PMW's petitions included the printed name, signature, home address, city and county, and an optional e-mail address for each signer. Two entities, KnowThyNeighbor.org and WhoSigned.org, publicly stated that they intend to publish the names of petition signatories on the Internet. PMW alleged that those groups have encouraged individuals to contact individuals who signed the petition to have “personal” and “uncomfortable” conversations. The court said that PMW apparently referred to a press release in which KnowThyNeighbor's co-director stated that conversations may be triggered “between people that already have a personal connection like friends, relatives, and neighbors”; these conversations “can be uncomfortable for both parties, but they are desperately needed to break down stereotypes and to help both sides realize how much they actually have in common.” PMW alleged that its petition signatories were reasonably likely to be “subjected to threats, harassment, and reprisals.”

The district court first granted the plaintiffs a temporary restraining order against disclosure of the petitions, then a preliminary injunction. It found that the signatures are anonymous political speech, and that the PRA, which requires state agencies to make public records available for public inspection and copying, Wash. Rev. Code § 42.56.070, is not narrowly tailored to serve a compelling state interest in this context.

Clear Error.

Reversing, the Ninth Circuit said the district court clearly erred in finding the petition signatures to be anonymous political speech. The petitions “are gathered in public,” and there was no showing that this process “is performed in a manner designed to protect the confidentiality of those who sign the petition,” the appeals court said. It further noted that each petition page contains 20 signatures, exposing each to up to 19 other signers and “any number of potential signers.” In addition, under state law, petitions are submitted for state approval, and are subject to observation by referendum proponents and opponents while being verified and canvassed by the state, the court noted.

“To the extent the district court did not rely exclusively on anonymous speech cases, the district court nonetheless erred in applying strict scrutiny,” the appeals court said. The district court cited Buckley v. American Constitutional Law Found., 525 U.S. 182 (1999), for the proposition that petition signing, like petition circulation, is protected political speech, and that any regulation of such speech is subject to strict scrutiny. However, the appeals court said that not every election regulation is subject to strict scrutiny, citing Burdick v. Takushi, 504 U.S. 428 (1992), which applied a balancing test to election restrictions burdening First Amendment rights.

Important Interests.

In any event, the PRA is not an election regulation; it does not deal specifically with the election process, but only incidentally affects it, the court said. While it assumed that petition signing qualifies as expressive conduct, it also assumed that the PRA has only an incidental effect on such conduct. It therefore applied the intermediate scrutiny test of United States v. O'Brien, 391 U.S. 367 (1968), under which a regulation incidentally affecting expressive conduct is constitutional if it (i) is within the constitutional power of the government to enforce, (ii) furthers an important government interest unrelated to the suppression of free expression, and (iii) restricts First Amendment freedoms no more than necessary to justify the interest.

Only the second and third factors were contested. The court found that the asserted state interests in preserving the integrity of the election by promoting government transparency and accountability, and providing voters with data on who supports placing a referendum on the ballot, were both “important.” Although a state election law authorizes the secretary of state to permit two opponents and two proponents of a referendum to witness the canvassing of petitions, the PRA assures greater public access, the court said. The PRA also enables the public to make “meaningful use” of a special procedure for challenging petitions, it added.

The court noted that in Cal. Pro-Life Council Inc. v. Randolph, 507 F.3d 1172 (9th Cir. 2007), it found that the state's “informational interest” was “well-established” and compelling. That case, PMW had argued, dealt with the interest of financial backers of referenda, not “generally what groups may be in favor of, or opposed to, a particular … ballot issue.” According to the court, however, the petition signatories “cannot be considered 'generally' in favor of a particular ballot issue.” Rather, “they have taken action that has direct legislative effect. The interest in knowing who has taken such action is undoubtedly greater than knowing generally what groups are in favor of or opposed to a ballot issue.”

The full text of Doe v. Reed will be published in an upcoming issue of Media Law Reporter.

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