Even more so than the other major opinion release by the Supreme Court on Thursday, the outcome of Doe v. Reed was no surprise to anyone who witnessed the oral argument. The question at issue was whether Washington state is within its rights to require the disclosure of signatures given to a petition to get an initiative on the ballot. The argument made by the anti-same sex marriage group that the First Amendment required that the signatures be kept private, to put it mildly, not very convincing. In essence, the argument seems to dovetail uncomfortably with Sarah Palin’s, er, innovative contention that the First Amendment should protect her from any criticism. But, as Scalia noted in his concurrence, “harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance.” When one considers the fact that under Washington state law individuals citizens who sign initiative petitions are acting in effect as legislators, the idea that they have a constitutional right to not have their identities revealed is especially hard to justify.
So the Court upheld the Washington law on its face, 8-1. However, in another example of Chief Justice Roberts’ oft-cited legendary ability to foster consensus on the Court, eight of the nine justices on the Court issued separate opinions. Among those who agreed that the law was valid, the key division was between Scalia and (to a lesser extent) Stevens, who argued that the law did not burden speech at all, and the rest of the majority, who argued that the law did burden speech but that the burden was justified by the state’s interest in a fair process. Roberts’ opinion for the Court also held open the possibility that the group could prove that in its specific case the requirement was unduly burdensome. While I tend to be skeptical of such “minimalist” moves, in this case there may be some justification for it. While this was, in the words of Stevens’ concurrence, “not a hard case,” it’s possible to imagine circumstances in balancing the relevant interests would be harder. Thomas’s dissent relied heavily on a couple of Jim Crow-era freedom of association cases, and in those cases mere disclosure really did have an unacceptably chilling effect on political speech and action. However, that was an unusual context — obviously, the rules of ordinary politics do not apply in authoritarian states where a disenfranchised minority is subject to state-sanctioned terror for ordinary political activity. In most circumstances, the disclosure requirement is obviously consistent with First Amendment principles, and hopefully future applications of the case will reflect this.
[X-Posted to TAPPED.]