The Supreme Court’s intervention set off a broad debate
among election-law specialists and First Amendment scholars over what is
private and what is public when it comes to politics. Is signing a petition and
delivering it to the government a public act, like voting on a bill in the
legislature or contributing money to a campaign? Or is it more like casting a
secret ballot at the polling place? Washington was only the latest instance in which
gay-rights advocates across the country had sought to use public records to
expose supporters of antigay measures. “We’ve put close to a million names online,’’ said Aaron
Toleos, cofounder of KnowThyNeighbor.org,
a Boston-based website. He said the group had posted the names on petitions
seeking rollbacks in gay rights laws in Massachusetts, Florida, Arkansas, and
Oregon. When Toleos announced plans in June to do the same in
Washington, lawyers for Protect Marriage Washington went to federal court to
block the release. They pointed to the scorn and verbal abuse experienced by
some people who gave money last year to support California’s Proposition 8 ban
on gay marriage. A lower court judge ordered the names withheld. On Oct.
15, the US Court of Appeals for the Ninth Circuit lifted this order in a brief decision,
clarified in an opinion released Friday. But Tuesday the full Supreme Court, with only one justice
dissenting, accepted the claim - at least until the case makes its way through
the courts - that the First Amendment’s right to freedom of speech includes
both a right to petition the government and a right to do so in confidence. In doing so, it reversed the Ninth Circuit and ordered
the protective order to remain in effect indefinitely, an indication that the
justices believe that people objecting to the release probably will prevail. “The process of signing a petition is political speech,’’
James Bopp, a lawyer for Protect Marriage, said in his appeal to the Supreme
Court. This speech will be “chilled,’’ he added, if the signers
of a petition are subjected to being “harassed, intimidated, and threatened.’’ In an interview, Bopp, an Indiana lawyer and a prominent
conservative, portrayed the dispute as “part of a nationwide effort to harass
and intimidate supporters of traditional marriage.’’ Toleos said, “We don’t ask people to go confront
strangers. This is about finding someone they already know - a cousin, a
friend, and co-worker - and having a civil dialogue.’’ In California, petition signatures are not released as
public records, but the names of campaign contributors are. Fred Karger, founder of Californians Against Hate that
organized some of the protests against big donors to the Prop 8 campaign, said
his group targeted only people who contributed $5,000 or more to what gays and
lesbians in the state considered an assault on their civil rights. Some constitutional scholars say that signing a petition
is akin to lawmakers’ votes, which usually are required to be made in public so
the citizenry can monitor the progress of the laws that will govern them. But Richard Hasen, a Loyola Law School professor, noted
that the Supreme Court in the past has protected civil rights groups and
socialists from revealing the names of their members because of fears they
could be harassed and intimidated. 