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Doe v. Reed, Citizens United, and Disclosure Requirements
While the Supreme Court largely cleaned house in Citizens United, the one vestige remaining were disclosure requirements–the very vestige that has served as the basis for the DISCLOSE act. Today, Chief Justice Roberts in Doe v. Reed reaffirmed the validity of disclosure requirements, noting that they were not “prohibition[s] on speech.”
To the extent a regulation concerns the legal effect of a particularactivity in that process, the government will be affordedsubstantial latitude to enforce that regulation. Also perti-nent to our analysis is the fact that the PRA is not a pro-hibition on speech, but instead a disclosure requirement. “[D]isclosure requirements may burden the ability to speak, but they . . . do not prevent anyone from speaking.” Citizens United v. Federal Election Comm’n, 558 U. S. ___, ___ (2010) (slip op., at 51) (internal quotation marksomitted).
That standard “requires a ‘substantial relation’ betweenthe disclosure requirement and a ‘sufficiently important’ governmental interest.” Citizens United, supra, at ___ (slip op., at 51) (quoting Buckley, supra, at 64, 66). To withstand this scrutiny, “the strength of the governmentalinterest must reflect the seriousness of the actual burden on First Amendment rights.” Davis, supra, at ___ (slip op., at 18) (citing Buckley, supra, at 68, 71).1
Unsurprisingly, Justice Thomas who wrote separately in Citizens United to express his doubts about disclosure requirements, was the lone dissenter in this case.
In my view, com-pelled disclosure of signed referendum and initiative petitions1 under the Washington Public Records Act(PRA), Wash. Rev. Code §42.56.001, et seq. (2008), severely burdens those rights and chills citizen participation in thereferendum process. Given those burdens, I would hold that Washington’s decision to subject all referendumpetitions to public disclosure is unconstitutional because there will always be a less restrictive means by which Washington can vindicate its stated interest in preservingthe integrity of its referendum process. I respectfullydissent.
Thomas quoted from his Citizens United opinion, and discusses the chil