Is free speech really free if it carries a price?

06/26/10

Since Lamont, the Supreme Court has routinely rejected laws that have the effect of suppressing speech or participation of an individual or a group even if the law doesn't directly curtail free speech. On Thursday the Court muddied the water a bit in an 8-1 decision holding that a Washington law that allows for public disclosure of the names and addresses of petition and referendum signers does not violate the First Amendment in Doe v Reed.

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The holding was broad but the court left open the possibility that individual instances may require closer scrutiny in a host of conflicting concurrences. Let's start with the broad holding - that the need for transparency and a state interest in preventing fraud or the appearance of fraud is enough of a reason to allow the public release of names and addresses of individuals who signed petitions. Setting aside for the moment the issue of reprisals against individuals who took a side in a controversial case (we'll get there when we cover the concurrences) this law allows the publication of personal information that could be used by data miners, both legitimate and those with ill intent. In a society increasingly paranoid about personal privacy, this alone will curtail participation in the political process. According to the majority the state's interest in preventing fraud and promoting transparency is compelling enough to ignore this chilling effect (in a concurrence, Scalia said that because signing a petition is an act of legislation not of speech, First Amendment jurisprudence doesn't apply at all). Justice Thomas, the lone dissenting voice, said that a law requiring disclosure must pass strict scrutiny and must be narrowly tailored to serve a compelling state interest - something he thought the state failed to do here.

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The majority agreed that in individual cases the need for privacy might be elevated to the point where blocking publication might be required under the First Amendment but couldn't agree on how to make that determination. They sent the case back to the lower court to consider with a host of confusing dicta to point the way. Justice Alito wrote that the burden should be low and that the petitioners in this case, which deals with an effort to overturn a state law expanding benefits to registered same sex partners, have a strong argument in favor of privacy. Justice Sotomayor, joined by Justices Stevens and Ginsburg, said essentially the opposite--that the burden should be high and that courts should be deeply skeptical of arguments favoring anonymity. This bizarre twist has the Court's liberal wing arguing against individual privacy rights. Not satisfied with signing off on Sotomayor's concurrence, Justice Stevens wrote his own, joined by Justice Breyer in which he said that the petitioners needed to show that there was a substantial risk of harassment that could not be mitigated by law enforcement measures.
The case returns now to the lower court which will have to pick one of these standards to follow. Since the Court can't agree on which standard is appropriate and clearly feels passionate about the issue, whatever the lower court decides is unlikely to be the final say.