ASNE Praises Supreme Court Decision in Favor of Open Records

ASNE joined several media groups in filing an amicus brief in the case, Doe v. Reed, in which the U.S. Supreme Court ruled that disclosing the names of people who sign a ballot petition does not violate their First Amendment rights. The case was originally filed by a group seeking signatures for a referendum to overturn a Washington state law expanding the rights of same-sex domestic partners; they sought to keep the names on the petition secret.

RESTON, Va. -- The American Society of News Editors applauds the U.S. Supreme Court's recent decision in which the court held that disclosing the names of people who sign a ballot petition does not violate their First Amendment rights.

The case, Doe v. Reed, arose when Washington Gov. Christine Gregiore signed legislation in 2009 expanding the rights of same-sex domestic partners. In response, a group opposing the law, Protect Marriage Washington, collected names on a petition for a referendum to overturn the law. Protect Marriage Washington garnered enough signatures to get Referendum 71 placed on that fall's state election ballot.

Several groups requested a copy of the petition through the Washington Public Records Act, with at least two groups indicating that they intended to post copies of the petition on the Internet. After the state determined that no exemptions to the Act prohibited release of the petition, Protect Marriage Washington sued in federal court, alleging that the petition's release would violate the First Amendment rights of the signatories. A U.S. District Court agreed, granting a preliminary injunction against the release of the petitions, but the Ninth Circuit Court of Appeals reversed. The Supreme Court then agreed to hear the case.

ASNE joined Advance Publications, the Association of Capitol Reporters and Editors, The Associated Press, Belo Corp., Bloomberg, L.P., CNN, Cox Media Group, Inc., Dow Jones and Co., Inc., Hearst Corp., Magazine Publishers of America, Newsweek, Inc., The New York Times Co., ProPublica, Tribune Co., and The Washington Post Co., on an amicus brief filed in the case. The brief argued that disclosure of referendum or other ballot-related petitions does not violate the First Amendment.

While the court did not agree with all of the arguments made in the brief, it reached the same result, according to ASNE counsel Kevin Goldberg of Fletcher, Heald and Hildreth. The main holding that “disclosure of referendum petitions … does not as a general matter violate the First Amendment” is important because it presumes continuing public access to these important documents in the future, Goldberg said. But perhaps more important, he added, is that the court appears to reject any notion that state public records laws can be challenged by those claiming that disclosures of personal information violate their constitutional rights.

Although the main court decision, authored by Chief Justice John Roberts, leaves the door open for the plaintiffs in this case to continue to challenge the disclosure of the petitions, it sets a clear line requiring those opposing disclosure to demonstrate a reasonable probability of “threats, harassment or reprisals from either Government officials or private parties.” Several justices seemed to indicate that they would impose an even stricter standard, requiring direct evidence of significant harassment -- and that they would not tolerate restrictions on access outside the highly charged context of a political election or referenda.

The several decisions issued by the court and individual justices last week can be found here.

“The plaintiffs in this case were asking the Supreme Court to declare that a public records act violates the First Amendment rights of an individual who is named in an otherwise disclosable record,” noted Goldberg. “The court's decision not to do so is a strong vote in favor of open government and public records laws generally.”

ASNE is a membership organization for leaders of multimedia news organizations and deans and endowed chairs at accredited journalism schools. ASNE focuses on open government and the First Amendment, journalism education, leadership and diversity.