Do the privacy rights of an individual signing a petition to support the reversal of a law supersede the public’s right to know their names? This question in regards to the rights of petitioners against a Washington state law expanding the rights of same-sex couples has recently been plaguing the courts.
Washington law permits voters to contest a legislative measure by compiling a petition with a certain number of signatures of people who disapprove of the measure. Formation of a legitimate petition subjects the law to a popular vote through a referendum. Referendum 71 provides voters with the opportunity to approve or disapprove a law passed by the Legislature in May 2009 that expanded the rights of same-sex couples.
The question the courts have been trying to answer is whether these petitioners’ names should be released to the public. In September U.S. District Judge Benjamin Settle temporarily prohibited state officials from releasing the names claiming that their disclosure would inhibit petitioners and others wanting to sign petitions from exercising their right to free speech. A couple of weeks ago the 9th U.S. Circuit Court of Appeals reversed Settle’s decision allowing Washington’s secretary of state to release the names and addresses of those who signed the petitions. Although the names of petitioners would normally be released Supreme Court Justice Anthony Kennedy has temporarily blocked Washington state officials from doing so until he considers a request by Protect Marriage Washington to reverse the appeals court’s ruling.
Protect Marriage Washington the group that orchestrated the petition and collected just enough signatures this summer to allow for a vote on the legislation has called for keeping the petitioners’ names anonymous. They have argued that releasing names would hinder free speech and make petition signers vulnerable to harassment from groups that support the expansion of rights from same-sex couples. A representative from Protect Marriage Washington has also stated that petition signers “fear hostile confrontations from gay rights supporters and noted that their campaign manager had received death threats.”
The courts should consider why people are calling for the disclosure of these petitioners’ names. Is it because citizens possess the right to receive information from the government in a free society such as the United States or is it a means to get these troublesome petitioners back for exercising a right provided to them by the state?
Assuming the motivation is the former the public has a right to know the names of the petitioners in order to validate the legitimacy of the petition; in other words that the petition carries a sufficient number of names and that the names belong to registered Washington state voters. This is a high-stakes referendum and the public has a right to see for itself that the referendum is legitimate. Since the petitioners have “thrust themselves into a public debate argues Washington’s Open Government ombudsman Tim Ford, they have also opened themselves to the scrutiny of the public.”
The scrutiny of the public however does not include harassment. If evidence suggests that widespread harassment would be the main result of the disclosure of names the Supreme Court should seriously consider Protect Marriage Washington’s contention. According to Janelle Guthrie a spokeswoman for Washington’s Attorney General Rob McKenna “there is no exemption in the Public Record Act for disclosure of petition signatures.” Regardless the courts could make an exception if there was a substantial reason to believe that releasing names would endanger the petitioners. The office of the attorney general however argued that evidence of potential harassment posited by Protect Marriage Washington did not amount to more than a few rude phone calls. Assuming that the harassment threat is not imminent the court has the responsibility to disclose the petitioners’ names. Once people sign a petition calling for the reversal of a legislature’s decision they no longer hold a private position. They have initiated policy change and thus should be held accountable for their beliefs. In other words they should be expected to publicly defend their opinions about same-sex marriage.
Even if scant evidence exists suggesting that the disclosure of names would result in widespread harassment of petition signers the state Legislature should take measures to protect the petitioners against harassment. The Legislature could for example agree to come down hard on same-sex marriage groups or other individuals who attempt to harass or threaten petition signers. Ideally the call for the release of names backed by Fritz v. Gorton (1974) and Washington’s own Public Record Act would simply validate the legitimacy of the petition and allow petition dissenters to engage in constructive discourse with those who oppose expanded rights for same-sex marriage.