Thursday, August 30, 2012

Washington Blade publishes Maryland referendum petitioners' list (link) online

The Washington Blade seems to have created controversy by publishing a convenient link to a list of the names (and addresses) of persons who signed a petition to place Maryland’s marriage equality law on referendum, on the general election ballot on Nov. 6.

The actual list (July 12, 2012) is on Scribd and is available (as a dynamic PDF) here.

Kevin Naff, editor of the Washington Blade, defends decision of his newspaper to do so in this Viewpoint editorial on p 26 of the Aug. 24 issue, link here.

Although the Blade didn’t explain in detail, the Blade has to have gotten the list from the State of Maryland, which, in accordance with state election or petition laws, somehow has enabled the publication on the Scribd website.

In 2010, the United States Supreme Court had ruled, 8-1, in a case from Washington State called Doe v. Reed, that a law (in Washington) or administrative policy mandating disclosure of petitioners on a referendum does not violate First Amendment rights. The Court opinion PDF (June 24, 2010) is here

The Court held that signing a petition was a form of legislative activity which cannot be carried out in secret.
In Washington State, a group called Protect Marriage Washington had sought to keep private the identities of 13800 signers of an R-71 petition to overturn Washington State’s “everything but marriage” domestic partnership law. Chris Grygiel of Seattle Pi offered a perspective on the decision with respect to Washington State, “Supreme Court on R-71: Names on petitions can be made public”, link here.

One original point of graduated disclosure of referendum petitioners was to monitor fraud. 
There is a related issue, whether political pressure groups should (or can ) be forced to disclose the names of donors, with the proposed Disclose Act, which is discussed in an article by Meredith Bragg and Nick Gillespie in the libertarian-leaning Reason Magazine Oct. 18, 2010, “Who Is Pubius: Who’s Afraid of Anonymous Political Speech”, link here

Reason points out the original Federalist papers were published under a pseudonym. I'll follow up on this later on my issues or main blog. 
But the issue of making contributions to candidates or to advocacy groups is different from signing a petition; contributions don’t directly cause legislation to be voted on. 
It's  important to note that the State of Maryland, while making the petitioners' list available on formal request, apparently doesn't directly publish it online.  Only a private pressure group or media group (or conceivably a person) does that.  Does the practical risk of Internet publication change the concept that signing a petition is “open book” legislative activity?  It’s true, it would take less effort to locate names to single people out for intimidation than if one had to go to a courthouse to view the list physically.  An unethical employer could fire someone after finding a name on a petition list with so little effort.  There doesn’t seem to be any evidence that the names get indexed by search engines and could affect “online reputation”.

Andrew Sullivan supported the Blade’s action in a very brief statement, oh “The Daily Beast”, saying that you shouldn’t try to deny someone else’s rights in secret (which Naff echoed),, link here.   

For example, go back to 1977 when Anita Bryant with her “Save out Children” crusade raised about 64000 signatures to force a vote to overturn Dade County’s non-discrimination protection ordinance. It’s pretty easy to say that someone who signed such a petition is “legislating” a measure that will very likely cause some people to be fired from their jobs for their perceived personal lives.   Should the identity of someone who tries to do this be public?  (The Supreme Court ruled in 2010 that it can be.)

I think a lot of people don’t perceive denying equal marriage rights as a personal attack on others that deserves this kind of scrutiny.  After all, before the 1990s gay rights focused more on the “obvious” things, like employment and housing discrimination, and many gay people said that they had no interest in marriage. In recent years, there has developed much more appreciation of the fact that marriage inequality can affect even those who don’t try to marry.  That’s partly because in today’s world, with longer lifespans, caregiving and family responsibility is coming to be expected of everyone. 

The Cato Institute has a clip on Doe v. Reed with comments by Steve Simpson (Institute for Justice), from Oct. 10, 2010 on YouTube:

The speaker thinks that the Supreme Court issued a very narrow ruling in Reed, differing from how it has subsequently ruled on contributions and other political speech.

Here's one other aside:  In the late 1990s, when I worked sometimes on some "ballot access petition" drives for the Libertarian Party of Minnesota, we told petitioners that their names and addresses would be kept private and never be given out. Perhaps, in hindsight, we didn't have the legal authority to say that.   A ballot access petition, however, might not rise to the level of "legislative" activity of a referendum petition. 

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