Supreme Court justices appeared skeptical Wednesday about keeping secret the names of people who signed a petition to repeal Washington state's gay rights law, suggesting citizens cannot always hide behind anonymity if they want to be heard.
Opponents of gay rights want the court to keep the names private to avoid intimidation by the other side. But several justices questioned whether allowing petitioners to stay anonymous might imperil other vital open records like voter registration and lists of donors to political candidates.
"The fact is that running a democracy takes a certain amount of civic courage," Justice Antonin Scalia said. "And the First Amendment does not protect you from criticism or even nasty phone calls when you exercise your political rights to legislate, or to take part in the legislative process."
The case, which will be decided by the court before the end of the summer, could draw a new line between voters' desire for openness in government and the right to political speech unfettered by fear of intimidation.
Opponents of the law that expanded the rights of gay couples mounted a petition drive that succeeded in getting a referendum on the "everything-but-marriage" law on last year's ballot. But voters narrowly backed the law that grants registered domestic partners the same legal rights as married couples.
While the campaign was under way, gay rights supporters sought access to the petitions under Washington's open records law. Protect Marriage Washington, the group that organized opposition to the law, objected, saying its members would be harassed if their names were made public.
"No person should suffer harassment for participating in our political system, and the First Amendment protects citizens from intimidation resulting from compelled disclosure of their identity and beliefs and their private associations," lawyer James Bopp Jr. said.
The 9th U.S. Circuit Court of Appeals in San Francisco refused to keep the names secret, but the Supreme Court stepped in and blocked release of the names before the vote. The justices later intervened in another case in which gay rights opponents complained about potential harassment. The court's conservative majority prevented broadcast of the trial on California's ban on same-sex marriage.
Bopp said people who signed the petition faced the prospect of harassment. Scalia called that "touchy-feely, oh-so sensitive."
"You know, you can't run a democracy this way, with everybody being afraid of having his political positions known," Scalia said.
"I'm sorry, Justice Scalia, but the campaign manager of this initiative had his family sleep in his living room because of the threats," Bopp replied.
Scalia said threats should be moved against vigorously. "But just because there can be criminal activity doesn't mean that you have to eliminate a procedure that is otherwise perfectly reasonable."
Washington Attorney General Robert M. McKenna denied there was evidence of violence or threats against petition signers.
If there was proof of violence, the petition signers could ask for a preliminary injunction, McKenna said. "Such situations should be evaluated on a case-by-case basis to evaluate the reasonable probability of threats, harassments, and reprisals," he said.
Making the petition names public also helps the state fight fraud, McKenna said. And "it's also about finding plain old mistakes which the state, the secretary of state, or auditor has missed."
Justice Ruth Bader Ginsburg noted that while Protect Marriage Washington says it wants to keep the petition names anonymous, organizers of petitions often make the names public themselves by selling the names to other organizations and using them for fundraising.
"So that would be the end of a person's privacy," she said.
Chief Justice John Roberts compared signing a petition to voting, saying a person's vote might be chilled if it was revealed which candidate they voted for. McKenna argued that chill would be no more significant than it is for having campaign contributions or voter registration disclosed.
Justice John Paul Stevens, listening to his final arguments before retiring later this summer, said there might be a public interest in seeing the names on a referendum petition to "identify people who have a particular point of view on a public issue."
"And if you have the other point of view, don't you have an interest in finding out who you would like to convince to change their minds?" Stevens said.
But Justice Samuel Alito questioned McKenna on whether his office was willing to give out the home address of its lawyers so people could show up and have "uncomfortable conversations" with them about issues in which they disagree.
"We could not release it because they can come to the office and have uncomfortable conversations with them, which I can personally attest happens with some regularity," McKenna said to laughter in the courtroom.
The Associated Press is among 22 news organizations and media trade associations that filed a brief in the case supporting public disclosure of the documents.
The case is Doe v. Reed, 09-559.