DOE et al. v.
REED, WASHINGTON SECRETARY OF STATE, et al.
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 Washington voters must sign a petition to place such a referendum 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 canvassing, 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 referendum petitions.
This case arises out of a state law extending certain benefits to same-sex couples, and a corresponding referendum petition to put that law to a popular vote. Respondent 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.
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 particular 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. 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 pending before the District Court.....
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 agnostic as to the merits of the underlying law, his signature still expresses the political view that the question should be considered "by the whole electorate." 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 legitimizing power of the democratic process, ... must accord the participants in that process the First Amendment rights that attach to their roles."
Respondents counter that signing
a petition is a legally
operative legislative act and therefore "does not involve any
significant expressive element." 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
expressive 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 viewpoint, arguing that one purpose served by
disclosure is to allow the public to engage signers in a debate on the
merits of the underlying law.
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. 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 pertinent to our analysis is the fact that the PRA is not a prohibition on speech, but instead a disclosure requirement. "[D]isclosure requirements may burden the ability to speak, but they ... do not prevent anyone from speaking."
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 scrutiny." That standard "requires a 'substantial relation' between the disclosure requirement and a 'sufficiently important' governmental interest." To withstand this scrutiny, "the strength of the governmental interest must reflect the seriousness of the actual burden on First Amendment rights."
Respondents assert two interests
to justify the burdens of
compelled disclosure under the PRA on First Amendment rights: (1)
preserving the integrity of the electoral process by combating fraud,
detecting invalid signatures, and fostering government transparency and
accountability; and (2) providing information to the electorate about
who supports the petition. 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....
Public disclosure thus helps ensure that the only signatures 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 substantially related to the important interest of preserving the integrity of the electoral process....
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.
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 referendum 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, it does, a long history of practice shows that the First Amendment does not prohibit public disclosure....
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 measure at issue.
Plaintiffs point to no precedent from this Court holding that legislating is protected by the First Amendment. 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 lawmaking power in the United States has traditionally been public....
Justice Thomas, dissenting.
Just as "[c]onfidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy," so too is citizen participation in those processes, which necessarily entails political speech and association under the First Amendment. In my view, compelled disclosure of signed referendum and initiative petitions under the Washington Public Records Act (PRA) 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....