Gay Rights v. Free Speech, the Round-Up

The Supreme Court heard oral arguments yesterday on the validity of the Washington state law requiring the release of names on petitions submitted in support of referendums. I wrote yesterday morning that I supported the call to keep petition names secret despite the fact that releasing the names might help the fight for gay marriage rights in the long term.

My reasons for taking this position focus on facilitating political speech at all costs, even when I find the content of the speech abhorrent. We have secret ballots, we allow people to publish editorials anonymously and we should allow them to sign petitions anonymously as well.

Two interesting things happened in the Supreme Court today. First, General McKenna, arguing in favor of the release of petition names, clearly and eloquently argued that the risk of criminal harassment or intimidation is minimal in this case:

" several other States, Arkansas, Florida, and Massachusetts, which had similar measures regarding gay civil rights or same-sex marriage on the ballot -- in those three States, the petition forms were obtained on the public records, were put on the internet, and no evidence has been provided that is in the record that anyone who signed any of these petitions in those three States was subjected to harassment."

Mckenna also spoke out in favor of boycotts, correctly pointing out that boycotts are a protected form of speech and a perfectly valid political tactic. They are not harassment and intimidation.

This is significant because part of the argument against the release of the names on the traditional marriage petition is based on the assumption that signers will be subject to violence and criminal harassment. This assumption is false.

Second, the Court seemed very focused on the idea that the public release of names is necessary for the verification of identity of petition signers. The strongest argument in favor of releasing the names is, according to the Court, a check on the verification process implemented by the Attorney General.

This is interesting. It does not engage in the free speech debate, but skirts the issue, going straight to the balance between speech interests and government interests. This permits us to a)avoid discussion of the facilitation of political speech and b) skip an analysis of how to change the verification process to ensure accuracy and privacy. If the Court if worried about verification, they should impose more internal checks on the petition process, not remove the right to anonymously express a political opinion.

We shall see what the Court decides, but it looks like the bid to release petition names will survive this step and will be sent down to the lower courts for an as-applied analysis regarding the potential risk of reprisal in this specific case (an argument which must fail). This means success for gay rights groups.