When Antonin Scalia calls your argument “touchy-feely,” it’s not a compliment. Last Wednesday, the feisty justice laid into a lawyer arguing that people petitioning the government have a broad right to privacy — which is to say, secrecy — when they sign their names on a petition drive. Scalia’s rebuke, coupled with comments from other justices, is a strong signal that the court will reject that fallacy and protect the people’s access to public records.
The case, Doe v. Reed, stems from an attempt in Washington to overturn that state’s domestic partnership law, which guarantees same-sex couples the legal benefits of marriage in all but name. Opponents of the law sought to kill it with a referendum last year. They lost handily, but along the way they sued Washington’s attorney general, Sam Reed, to stop him from disclosing the names of voters who had petitioned to get the referendum on the ballot.
Citing reports that Californians had been harassed after donating to opponents of same-sex marriage in that state, the plaintiffs argued that naming petitioners could chill public participation. Voters, they said, may refrain from signing a petition out of fear of retribution. Although they staked their claim on a First Amendment right to privacy, many traditional advocates for broad First Amendment rights, including the Chicago Tribune’s parent company, have urged the court to reject their arguments.
On Wednesday, most of the justices appeared ready to do just that — and none more vehemently than Scalia. “The First Amendment does not protect you from criticism or even nasty phone calls when you exercise your political rights to legislate, or to take part in the legislative process,” he told the petitioners’ lawyer. “You are asking us to enter into a whole new field where we have never gone before.”
He’s right. A petition is not a secret ballot; a signature is a public act by design. As with voter registrations, political contribution lists and other open records, disclosure serves vital public interest. Fraud is exposed. Conflicts laid bare. And not least, everyone sees how the sausage is made.
Moreover, Justice Sonia Sotomayor pointed out, exempting petitions from public records laws could have wide implications: Any group could secretly lobby a government agency without the public knowing who has requested what, or what was promised in return.
Does the state have a duty to protect signers from threats and harassment if those hostilities follow? Of course. But that duty doesn’t trump the public’s right to know what the government is up to. There are instances where public safety trumps public sunshine: No serious person argues that FBI files on nascent terror investigations should be posted online for everyone to peruse. But that relative rarity is no reason to make secrecy government’s first resort.
In Scalia’s words, “Running a democracy takes a certain amount of civic courage.”
Just ask John Hancock.
