Parties: JOHN DOE #1, et al., Petitioners v. SAM REED, WASHINGTON SECRETARY OF STATE, et al.
Date: 2010-06-24
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Paragraph: 88 - I doubt whether signing a petition that has the effect of suspending a law fits within "the freedom of speech" at all. But even if, as the Court concludes, ante, at ___, 177 L. Ed. 2d, at 501, it does, a long history of practice shows that the First Amendment does not prohibit public disclosure.
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Paragraph: 96 - N98* Plaintiffs point to no precedent from this Court holding that legislating is protected by the First Amendment.33 Nor do they identify historical evidence demonstrating that "the freedom of speech" the First Amendment codified encompassed a right to legislate without public disclosure. This should come as no surprise; the exercise of lawmaking power in the United States has traditionally been public.
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Paragraph: 107 - Of course the practice of viva voce voting was gradually replaced with the paper ballot, which was thought to reduce fraud and undue influence. See Evans 1-6; Dinkin 101-106. There is no indication that the shift resulted from a sudden realization that public voting infringed voters' freedom of speech, and the manner in which it occurred suggests the contrary.
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Paragraph: 108 - I am aware of no assertion of ballot secrecy that relied on federal or state constitutional guarantees of freedom of speech.
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Paragraph: 111 - The long history of public legislating and voting contradicts plaintiffs' claim that disclosure of petition signatures having legislative effect violates the First Amendment. As I said in McIntyre, "[w]here the meaning of a constitutional text (such as 'the freedom of speech') is unclear, the widespread and long-accepted practices of the American people are the best indication of what fundamental beliefs it was intended to enshrine."
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Paragraph: 96 - Nor do they identify historical evidence demonstrating that "the freedom of speech" the First Amendment codified encompassed a right to legislate without public disclosure. This should come as no surprise; the exercise of lawmaking power in the United States has traditionally been public.
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Paragraph: 101 - We have acknowledged the existence of a First Amendment interest in voting, see, e.g., Burdick v. Takushi, 504 U.S. 428, 112 S. Ct. 2059, 119 L. Ed. 2d 245 (1992), but we have never said that it includes the right to vote anonymously. The history of voting in the United States completely undermines that claim.
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Paragraph: 76 - N59* On the other side of the ledger, I view the burden of public disclosure on speech and associational rights as minimal in this context. As this Court has observed with respect to campaign-finance regulations, N60* "disclosure [***514] requirements . . . 'do not prevent anyone from speaking.' Citizens United, 558 U.S., at 366, 130 S. Ct. 876, 175 L. Ed. 2d 753, 799 When it comes to initiatives and referenda, the impact of public disclosure on expressive interests is even more attenuated. While campaign-finance disclosure injects the government into what would otherwise have been private political activity, the process of legislating by referendum is inherently public. To qualify a referendum for the ballot, citizens are required to sign a petition and supply identifying information to the State. The act of signing typically occurs in public, and the circulators who collect and submit signatures ordinarily owe signers no guarantee of confidentiality. For persons with the "civic courage" to participate in this process, [**2829] post, at ___, 177 L. Ed. 2d, at 522 (opinion of Scalia, J.), the State's decision to make accessible what they voluntarily place in the public sphere should not deter them from engaging in the expressive act of petition signing. Disclosure of the identity of petition signers, moreover, in no way directly impairs the ability of anyone to speak and associate for political ends either publicly or privately.
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