By Christopher Dunn

Gay rights has been the civil rights issue of the 21st century. Over the last decade, there has been extraordinary legal tumult about the rights of gays and lesbians, including their right to marry (and divorce), to assume parental responsibilities, to serve openly in the military, and even, as reflected in a recent initiative announced by President Obama, merely to visit their loved ones in hospitals.

As the movement towards recognizing the rights of gays and lesbians has gained momentum, there has been a considerable backlash in some places, as evidenced most notably by state referenda repealing recognition of same-sex marriage. The clash between proponents and opponents of gay rights has generated considerable litigation focusing on the substantive rights of gays and lesbians, including a 2006 New York Court of Appeals ruling rejecting the claim to a constitutional right to same-sex marriage in New York.

This conflict is also spilling out into other areas of the law. Last week, the Supreme Court heard arguments in a case involving gay-rights adversaries that pits a fundamental First Amendment protection against the public’s right of access to information about elections. Not only does the case, Doe v. Reed, present important questions about the right to engage in anonymous speech, but it likely will determine the constitutional viability of a favored tactic of gay-rights advocates: outing those who support referenda repealing gay-rights protections.

The Right to Anonymous Speech

Doe v. Reed arose out of an effort by gay-rights opponents to block public release of the names of people who had signed petitions placing on the ballot in Washington State a referendum that would overturn legislative action promoting gay and lesbian rights. The opponents claimed that disclosure of the petition signers’ names would violate their First Amendment right to engage in anonymous speech.

On various occasions, the Supreme Court has addressed the right of people to engage in expressive activity without having to identify themselves and often has been solicitous of this right. Meanwhile, the Court long has accorded state and federal authorities considerable latitude in regulating elections. These two strands of jurisprudence converged twice in the 1990s, and those cases frame the dispute now before the Court.

In McIntyre v. Ohio Elections Commission, the Court considered the constitutionality of an Ohio statute that barred the distribution of anonymous fliers seeking to influence elections. The plaintiff Margaret McIntyre was charged with violating the statute after she distributed leaflets at a public meeting in an Ohio middle school expressing opposition to a referendum on a proposed school tax levy. The Ohio Elections Commission fined her, and the Ohio Supreme Court affirmed the fine, rejecting Ms. McIntyre’s claim that the statute violated the First Amendment as applied to her leafletting.

In an opinion by soon-to-be-retired Justice Stevens, the Supreme Court reversed with a decision that represents its clearest endorsement of the right to anonymous speech. At the outset, Justice Stevens emphasized the critical role that anonymity has played in public discourse:

Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Great works of literature have frequently been produced by authors writing under assumed names. Despite readers' curiosity and the public's interest in identifying the creator of a work of art, an author generally is free to decide whether or not to disclose his or her true identity. The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible.

After noting that the Court had found that this right extended beyond literature to political debate, he recognized that consideration of the right of anonymous speech in the context of elections implicated a different set of concerns where the Court had accorded substantial deference to the government. Nonetheless, the Court held that, because the Ohio law burdened “core political speech,” it would apply “exacting scrutiny” and would uphold the restriction “only if it is narrowly tailored to serve an overriding interest.”

Applying this standard, the Court then held that Ohio’s stated concern about providing complete information to the electorate was insufficient because in virtually all instances the leafletter and recipient would be strangers and thus disclosure of the leafletter’s name and address would not provide any useful information to the recipient. As for the state’s concern about fraud and libel, the Court recognized that those concerns could be weighty but nonetheless found that the statute swept far too broadly.

In striking down the Ohio scheme, however, the Court did not condemn all mandatory disclosure obligations. Indeed, it expressly left the door open: “We recognize that a State’s enforcement interest might justify a more limited identification requirement...”

Four years later, the Court decided Buckley v. American Constitutional Law Foundation, Inc., which challenged disclosure requirements imposed by Colorado on people involved in the collection of signatures to qualify a referendum for the ballot. Of particular interest is the Court’s treatment of the requirement that those gathering signatures wear identification badges stating their names and of the requirement that, when submitting signatures they had collected, they also submit an affidavit containing their names and home addresses.

In an opinion by Justice Ginsberg, the Court struck down the identification badge requirement and in doing so distinguished it from the affidavit requirement. With respect to the badges, the Court opened its analysis with a review of evidence demonstrating that the requirement significantly deterred people from participating in the signature-gathering process. It then contrasted that with the situation presented by the affidavit requirement:

While the affidavit reveals the name of the petition circulator and is a public record, it is tuned to the speaker's interest as well as the State's. Unlike a name badge worn at the time a circulator is soliciting signatures, the affidavit is separated from the moment the circulator speaks. As the Tenth Circuit explained, the name badge requirement “forces circulators to reveal their identities at the same time they deliver their political message,” it operates when reaction to the circulator's message is immediate and “may be the most intense, emotional, and unreasoned.” The affidavit, in contrast, does not expose the circulator to the risk of “heat of the moment” harassment.

As this passage suggests, the Court in Buckley found the timing and context of the disclosure to be crucial. On this specific basis, it found that the Colorado scheme was even “more severe” than the Ohio statute at issue in McIntyre because petition circulation is “the less fleeting encounter, for the circulator must endeavor to persuade electors to sign the petition.” And citing to the express reservation in McIntyre about possibly permissible disclosure requirements, the Court said, “In contrast, the affidavit requirement..., which must be met only after circulators have completed their conversations with electors, exemplifies the type of regulation for which McIntyre left room.”

A Right to Anonymous Petition Signatures?

The plaintiffs in the case now before the Supreme Court seek to invoke Buckley and McIntyre in support of their First Amendment claim. Though Doe v. Reed does not involve a statute requiring people to disclose their identity, the right of anonymous speech lies at the center of the case.

The dispute in Doe arose when Washington State agreed, under its public records law, to turn over to gay-rights groups copies of petitions signed by people in support of a referendum to overturn a legislatively enacted law that expanded the rights and responsibilities of state-registered domestic partners. It was expected that the names and addresses of signers would be posted on the Internet or otherwise made public, which in turn would allow the signers to be singled out for advocacy or shame – a form of outing. Individuals who had signed the petitions and groups that had gathered them sued in federal court, arguing that disclosure would violate the right to anonymous speech and would subject petition signers to harassment, threats, and reprisals. Relying only on the first claim, the district court granted a preliminary injunction.

In a ruling that is now before the Supreme Court, the Tenth Circuit reversed. Though it suggested that there was a threshold question about whether the signing of a petition was expressive activity protected by the First Amendment, the Court of Appeals assumed it was. However, it categorically rejected the suggestion that the petition signers qualified for the protections of McIntyre and Buckley, finding that the process of signing referendum petitions was not an anonymous act:

The signatures at issue, however, are not anonymous. First, the petitions are gathered in public, and there is no showing that the signature-gathering process is performed in a manner designed to protect the confidentiality of those who sign the petition. Second, each petition sheet contains spaces for 20 signatures, exposing each signature to view by up to 19 other signers and any number of potential signers. Third, any reasonable signer knows, or should know, that the petition must be submitted to the state to determine whether the referendum qualifies for the ballot, and the state makes no promise of confidentiality, either statutorily or otherwise. In fact, the [Public Records Act] provides to the contrary. Fourth, Washington law specifically provides that both proponents and opponents of a referendum petition have the right to observe the State's signature verification and canvassing process.

With this, the Court dispensed with the anonymous speech claim and thus the “exacting scrutiny” standard that would have applied and instead evaluated the disclosure of the petition signatures under the more permissive standard that applies to “incidental” burdens on First Amendment rights. And under that the standard, the court found that the signature disclosure was justified by the state’s interest in assuring the integrity of the election process and by its interest in informing voters about who was supporting placing the referendum on the ballot.

Given the seemingly straightforward public nature of the petition-signing process, one might reasonably think that the Tenth Circuit’s disposition of the anonymous speech claim would be the end of the matter. Yet, the Supreme Court accepted the case for review -- and even issued a stay pending issuance of its final ruling -- which certainly suggests it may have a different view of the extent to which signing a petition amounts to anonymous speech.

Even if the Court concludes, however, that petition signing is anonymous speech so as to qualify for the protections of McIntyre and Buckley, those challenging disclosure of the petition signatures will have to contend with the distinction the Court drew in both cases between disclosures mandated to be made at the time of the expressive act – the distribution of the flier in McIntyre and the wearing of the identification badge in Buckley – and those required to be made long after the act – as with the affidavit requirement in Buckley. In the Washington case, the signatures would be disclosed well after the person actually signed the petition.

One final consideration may come into play in the case now before the Court. In upholding the release of the petition signatures, the Tenth Circuit drew a distinction between general ballot advocacy and the referendum-petition signatures: “Referendum petition signers have not merely taken a general stance on a political issue; they have taken action that has direct legislative effect.” In other words, what may distinguish this case from other cases of anonymous speech is that here the “speakers,” by virtue of a scheme that empowers them to force a referendum on to the ballot, are more than just citizens expressing a point of view but may be something akin to legislators. And if this is the case, what right of anonymity could and should attach to such legislative actors?

Christopher Dunn is the associate legal director of the New York Civil Liberties Union.