Inside the First Amendment
By Gene Policinski
First Amendment Center vice president/executive director
“What’s in a name? That which we call a rose
By any other name would smell as sweet.”
In Shakespeare’s Romeo and Juliet, that phrase set out a central theme of the star-crossed lovers’ tragedy: Real meaning lies in individuals, not in their feuding families’ names.
The 45 words of the First Amendment are law rather than literature. But for the U.S. Supreme Court in an upcoming case, the question “What’s in a name?” will involve parsing the modern meaning and application of First Amendment rights of free speech, petition and assembly.
The Court has agreed to consider Doe v. Reed, concerning whether Washington state officials can release more than 120,000 names on a petition that sought a referendum on repealing the state’s domestic-partnership rights. Some supporters of the gay-rights law have said if the names become public, they will identify signers by name and address in Internet postings.
Those seeking to have the Court prevent disclosure say "there is a reasonable probability that the signatories … will be subjected to threats, harassment, and reprisals." In their petition, they cite a death threat to the campaign manager of a group supporting the referendum, Protect Marriage Washington.
On the other side, Washington state officials say the petition and names are public records.
Justices will have to decide whether implied First Amendment protection of privacy in political speech and association should be overridden by a “compelling public need” for the names to be made public.
The issue of anonymous political activity has roots in the very founding of the nation. The Federalist Papers, a series of political writings first published in 1787, identified the author as “Publius.” In reality, it was the work of three men, John Jay, James Madison and Alexander Hamilton. Writers in pre-revolutionary times frequently wrote under assumed names to avoid arrest or retaliation from supporters of the Crown.
Legal protection of the right of association has found Supreme Court protection in much more modern circumstances: In one instance, the Court recognized the right of privacy and anonymity in association in the landmark 1958 case, NAACP v. Alabama, which involved concerns about very likely intimidation and threats to personal safety from state officials. In another case, the Court struck down laws that required political pamphleteers to identify themselves to officials.
The issue has taken on a new twist — and urgency — because of the Web. It’s not at all new to require that the names of campaign contributors, petition signers and others filing any manner of public reports or records be available on records considered open and public.
What is new is the ease with which such names and other personal information can be aggregated and distributed — sometimes replete with photos of individuals and maps of where homes or businesses are located. And therein is the online rub.
An attorney for the group Protect Marriage Washington told reporters that keeping the names secret would “protect the rights of citizens … to speak freely and without fear. No citizen should ever worry that they will be threatened or injured because they have exercised their right to engage in the political process.”
Still, to hide the names of those who take a stand on one side of an issue is to hinder the opportunity for the exchange of views with the public in general and opponents in particular. Secrecy also removes a measure of public accountability — when, for example, names on petitions are vetted by state examiners. Laws to prevent or punish intimidation or violence already exist. Such acts are illegal even if done with a political or social purpose in mind.
The circumstances in the Washington state dispute and others like it pit the values of personal privacy and public disclosure against each other in a contemporary setting. After the Court hears arguments in April and likely issues a ruling later this year, we’ll know more about how the First Amendment will function in the Internet Age.
Gene Policinski is vice president and executive director of the First Amendment Center, 555 Pennsylvania Ave., Washington, D.C., 20001. Web: www.firstamendmentcenter.org. E-mail: [email protected].