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Wednesday, March 3, 2010

Featured Guest Blogger: Lyle Denniston

Court to Face Question of Anonymity in Public Advocacy

When Americans engaged in perhaps their most important-ever political debate – whether to ratify the new Constitution drafted in 1787 – most of the leading advocates on each side wrote and spoke behind a shroud of anonymity. There was “Publius,” the three anonymous Founders who together wrote the highly influential Federalist Papers. On the other side, the Anti-Federalists, making compelling arguments against the new document, penned their views under such names as “Cato,” “Brutus,” “the Federal Farmer,” and others. Today, we know who they were (or have good guesses about it – especially, about the identities of the Anti-Federalists).

Thus, the practice of anonymous political advocacy is in a noble tradition. The Supreme Court has long recognized the social virtue of anonymous political activity. Among other values the Court has cited, anonymous political speech puts the focus on the substance of the message, and not on the identity or the personal motives of the advocate, especially if the advocate is a member of an unpopular group. Anonymity, the Court also has noted, protects a political speaker from harassment, retaliation, or retribution – and, perhaps, even from violence.

Lately a new crop of political actors has emerged with the aim of influencing election outcomes anonymously. In the Internet Age, when it can be extremely difficult to escape public identification whenever one speaks up (sometimes followed by searing denunciation for the whole world to witness), the urge not to be identified can be a strong one. At the same time, the mere fact that the society is now very much more open – transparent is the buzz word most often used these days – generates new challenges to anonymity for those who would shape political outcomes while escaping personal accountability.

The Supreme Court is moving back into this discussion. In a variation of the desire to stay out of the limelight, the opponents of gay marriage in California sought, and received, the Supreme Court’s intervention to keep them from being displayed on television and on the Internet when they appeared on the witness stand in the constitutional trial of the measure they helped get adopted in the state – Proposition 8, banning gay marriage.
The Court accepted the argument that such added notoriety could well lead to retaliation or perhaps violence, and could intimidate them as witnesses. It pulled the plug on the plan for even delayed broadcasts of the trial.

Within coming months, the Court has assigned itself the task of weighing the competing values of anonymity versus transparency in political activity. The case it will be examining, fittingly, pits “John Doe No. 1” and “John Doe No. 2” against officials of Washington State who, under the state’s open records law, planned to make public the petitions that were circulated to get on the election ballot so-called Referendum 71, an anti-gay rights measure. The state law makes public records, including referendum petitions, available for public inspection. And groups that want to publicize the identities of the signers of those petitions planned to circulate that information on the Internet.

Last October, the Supreme Court stepped in and temporarily blocked the release of the names and addresses of individuals who signed the Referendum 71 petitions. (Referendum 71 did go before Washington’s voters last November, and was defeated by a 53-47 margin, thus leaving intact a new state law guaranteeing gay couples “everything but marriage,” as the state law is described popularly.) Justice John Paul Stevens was the lone dissenter. (Stevens, it might be noted, is the author of one of the Court’s most important precedents supporting anonymous political expression – the 1995 decision in McIntyre v. Ohio Elections Commission – a precedent now being used by the John Does in Washington State as they seek to preserve their present anonymity.)

Two days after the November election, the John Does, along with an advocacy group, “Protect Marriage Washington,” filed a formal appeal to the Supreme Court. Then, in mid-January, the Court agreed to decide that appeal, probably before completing its current term early this coming summer.

The Court, of course, has already given some indications that it is sympathetic. There was, of course, the temporary order blocking public disclosure by Washington State officials. In addition, the Court acted in favor of lowering the public profile of anti-gay rights witnesses in the trial on Proposition 8 in California. And, near the end of January, the Court uphold federal laws requiring corporations and labor unions to disclose publicly the donors who provide funds for them to spend in federal elections, but expressed a “cause for concern” about recent incidents threatening to advocates of controversial political causes. The Court indicated that a full disclosure requirement might be unconstitutional if there were a reasonable chance that a controversial group’s members “would face threats, harassment, or reprisals if their names were disclosed.”

As the Court moves toward a decision in the John Does case, it will face such basic constitutional questions as these:

  1. Is signing a referendum (or initiative) petition a form of “political speech” that is protected by the First Amendment’s free speech clause? Or is it an act by people performing the function of “legislators,” similar to those in the statehouse who often are required to do their work in the open so that they can be held accountable?

  2. If signing a petition is protected as a form of speech, is a disclosure requirement likely to discourage people from joining in such campaigns, and thus puts a “chill” on their political rights?

  3. How can a state justify a requirement that the identity of the signers be disclosed? Is it enough that a state thinks voters, when they vote on the resulting measure, should know who was behind it? Is disclosure of signers’ identities a valid way to prevent fraud in referendum or initiative campaigns?

  4. Is there no narrower way to protect the state’s policies in favor of transparency and openness in elections than identifying the signers?

The outcome may have a significant impact on the laws of 27 states which have either a referendum or an initiative process, or both kinds of “direct democracy.”

In asking the Court to hear their case, the John Does’ lawyers argued that the issue of anonymity for petition-signers “is arising with great frequency across the country as changes in technology have made it possible for individuals and groups seeking to prevent public debate from occurring to obtain the names and contact information of petition signers and post that information online to encourage harassment and intimidation.”

Washington State officials countered that the signers’ desire for anonymity comes too late. Petitions are gathered in public, so the identities of signers are on display to other signers and to the individuals or groups circulating the petitions, and the signing usually occurs in such places as public sidewalks or in the common areas of shopping malls, the state officials note. “Any remaining privacy is very limited,” they argued.

Those competing viewpoints will be argued even more fully as the case moves toward a ruling.

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