Doe v. Reed: On the Disclosure of Referendum Petitions

Public disclosure of “referendum petitions in general,” which disclosure occurs pursuant to Washington State’s Public Records Act (PRA), does not violate the First Amendment of the U.S. Constitution, the U.S. Supreme Court held today, in the case of Doe v. Reed, No. 09-559.

In reaching its decision, the Court applied an intermediate, “exacting scrutiny” standard of review.

The Court did not decide whether disclosure, pursuant to the PRA, of the referendum petition respecting Washington’s Senate Bill 5688, which “‘expand[ed] the rights and responsibilities’ of state-registered domestic partners, including same-sex domestic partners,” would violate the First Amendment. The Court remanded the case to lower federal courts to decide that issue. The Court stated that its ruling on this broad challenge — respecting “referendum petitions in general” — “does not foreclose a litigant’s success in a narrower one.”

However, five Justices wrote or joined concurring opinions questioning or contesting the view that in a challenge involving a particular referendum the First Amendment would bar disclosure of the referendum petition, even respecting a highly controversial referendum.

This case is of interest to the legal informatics and legal communication communities, because the case concerns the disclosure of information about citizens in their capacity as lawmakers in referendum or initiative processes.

Legal communication scholars may find particularly interesting Justice Scalia’s concurring opinion, which contains an extended historical discussion of anonymity in voting in the U.S.

Tags: Citizen lawmaking, Citizen participation in e-government, Disclosure of personally identifying information in citizen lawmaking, Doe v. Reed, eparticipation, Legal communication, Referenda, U.S. Supreme Court