Friday, October 8, 2010

The Right to Offend: Civic Courage

I like to call this one The Case of the Bashful Petition Signers. In Doe vs. Reed, the US Supreme Court examined the rights of those who signed a petition to place on the ballot a measure which would

NY Law School Professor Arthur S. Leonard describes the case in his blog:

The case arose out of Washington State’s 2009 enactment of a law expanding the state’s existing domestic partnership bill. Senate Bill 5688, referred to as the "everything but marriage bill," built upon the state’s existing domestic partnership law to provide that registered domestic partners would have virtually all the state-law rights of married couples. This proved to be a step too far for some committed opponents of same-sex marriage, who promptly began circulating petitions seeking a referendum to repeal the law. Under Washington procedures, if the petitioners acquired sufficient signatures the law would be stopped from going into effect pending the referendum vote. They got the signatures, and the measure went on the 2009 general election ballot as Referendum 71.

The Referendum passed - 53% of Washington voters approved the expansion of rights to all domestic partners. Confused? Here's a look at the wording and arguments:

The Supreme Court decided 8-1 that free speech and open access trumps privacy of the signatories.

Here is some background:

Lyle Denniston writes at the SCOTUS blog:

Justice Antonin Scalia, using history, sarcasm and political taunts, laid down a barrage of objections Wednesday to a plea that the Supreme Court create a new constitutional right of anonymity for individuals who sign petitions to get policy measures onto election ballots.


Declaring that the rough-and-tumble of democracy is not for the faint-hearted, what Scalia referred to as the “touchy, feely” sensitivity of some political activists, the Justice said “you can’t run a democracy” with political activity behind a First Amendment shroud. “You are asking us to enter into a whole new field,” Scalia told James Bopp Jr., the lawyer for Washington State signers of an anti-gay rights petition. Politics, the Justice went on, “takes a certain amount of civic courage. The First Amendment does not protect you from civic discourse — or even from nasty phone calls.”

Read more here.

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