Thursday, June 24, 2010

Disclosing names and the First Amendment

Doe v. Reed, -- S.Ct. --, No. 09-559, 2010 WL 2518466 (June 24, 2010): Many interesting things to say about this case upholding the facial validity of disclosure of the names/addresses of people who sign petitions that are placed on the ballot, but I was struck most initially by a bit in the dissent by Justice Thomas:

A referendum supported by only one person’s signature is a nullity; it will never be placed on the ballot. The Doe petitioners recognized as much when they—and more than 120,000 other Washingtonians—joined … to effect Protect Marriage Washington’s “major purpose” of collecting enough valid signatures to place Referendum 71 on the general election ballot. For these reasons, signing a referendum petition amounts to “‘political association’” protected by the First Amendment.

This Court has long recognized the “vital relationship between” political association “and privacy in one’s associations,” NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 462 (1958), and held that “[t]he Constitution protects against the compelled disclosure of political associations and beliefs,” Brown v. Socialist Workers ’74 Campaign Comm. (Ohio), 459 U. S. 87, 91 (1982).

Now, I see the free speech argument. But I’m fascinated by the idea that signing a petition is political association, in that it offers essentially no opportunity to interact with other signatories, no back-and-forth, no continuity—nothing that I think of as “association.” Signers are like books on a library shelf; they may be about the same topic, but it’s not as if they’re actually informing each other or expanding knowledge just by being side by side. And I can’t help but wonder where this impoverished view of association comes from. Is it a function of extreme individualism, where individuals and their views are presumed to be complete before even encountering other people, so that the point of association is just to increase the volume of speech? Or is it from the broader political culture? We’ve seen the rise of many ways of outsourcing/specializing the labor of doing politics in the past few decades; if giving money/signing is all you need to do and the career folks will take it from there, you don’t need to think of arguments or strategies or anything else.

(Okay, fine, there was one other thing I noticed: find the flaw in the syllogism, which I present to you in its entirety from Justice Alito's concurrence: "Third, the experiences of other States demonstrates that publicly disclosing the names and identifying information of referendum signatories is not necessary to protect against fraud and mistake. To give but one example, California has had more initiatives on the ballot than any other State save Oregon.")

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