When First Amendment Freedoms Conflict, Which Would You Pick?

Gene Policinski

Inside the First Amendment

By Gene Policinski
First Amendment Center vice president/executive director

Balancing — or pitting — First Amendment freedoms against each other is tough work.

Akin to asking a parent which child is the favorite, seeking to favor one or two of the five freedoms — religion, speech, press, assembly or petition — over the others creates an inherent contradiction.

But that’s exactly the dilemma for First Amendment advocates, along with the U.S. Supreme Court and Washington state lawmakers, presented by a lawsuit and legislative debate over whether or not names on a petition ought to be made public. And unlike parents, nobody gets to resolve the question by saying, “I love them all equally.”

The issue involved is itself especially controversial: the proposed repeal of Washington’s law that extends to domestic partners most of the legal rights of married couples. Supporters of repeal gathered nearly 140,000 signatures, but the move failed last year at the ballot box.

State law provides that the names and addresses of those signing a petition can be made public. Opponents of repeal sought the names, promising to post them on various Web sites. Fearing retaliation — from verbal confrontation to physical harm — the group Protect Marriage Washington and others petitioned in federal court for an order forbidding state authorities to disclose the names and addresses.

Up come those vexing “pick one or two” First Amendment questions:

  • Is signing a petition a form of “speech” or — because the result may place an issue on the ballot — is it more of a populist form of legislative action?
  • If signing is speech, then does a long-standing and valued element of political debate in this nation, the right of anonymous speech, come into play?
  • Even if it’s anonymous speech, a concept endorsed by the courts in various decisions, is there a larger public good attached to identifying petition-signers that outweighs the desirable goal of vigorous public debate that includes unidentified speakers?

Which “child” in the First Amendment family would you select to win out?

From the “names are public information” side: Signing a petition is a public act, all the more so when the law provides notice of that in advance. Signing may well subject you to negative reaction, and the Web has made that possibility more likely. But vigorous debate is the heart of a democratic system and the marketplace of ideas. Yes, it’s possible on divisive issues that reaction to petition-signing could include personal confrontations, demonstrations outside your residence or loss of business customers and orders. For those worried about harassment and harm, laws exist to deal with those.

From the “names should be confidential” side: Signing a petition is much like voting, for which we have legislated the secret ballot — recognizing that otherwise we may well lose much public participation in politics. In other important instances courts have recognized that intimidation or harm was so likely that secrecy was necessary, as in NAACP v. Alabama (1958). There, the Supreme Court held that the public interest in disclosure was of lower constitutional importance than the group’s right to free speech and association. It said the likelihood of reprisal against members would have a “chilling effect” on the NAACP’s effectiveness and ability to recruit and retain members.

“Names are public information”: There is real value in the public’s and news media’s being able to evaluate and follow an open petition process, including the practice of vetting signatures by public officials. Unchecked, petitioners may swell their numbers with fictitious signers. Officials vetting in secret may well have an interest in swaying their review in one direction or the other. Transparency at each level serves to prevent fraud.

“Names should be confidential”: In the case now before the U.S. Supreme Court, Doe v. Reed, a district court initially said signing the Washington state repeal petition was a form of speech. And, some argue, given that it’s political speech, signing qualifies for the highest possible constitutional protection — sometimes including anonymity. In a 1995 case, McIntyre v. Ohio Elections Commission, involving campaign fliers, Justice John Paul Stevens, writing for the Supreme Court majority, said: “Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority.”

From the nine justices of the Supreme Court, to the 147 members of the Washington state Legislature, to all of us as citizens: As the collective “parents” of the First Amendment, which “child” would you pick?

Gene Policinski is vice president and executive director of the First Amendment Center, 555 Pennsylvania Ave., Washington, D.C., 20001. Web: E-mail: [email protected].