Instant Analysis of Oral Arguments in Doe v. Reed

April 28th, 2010

Transcript is available here. I will add my thoughts as I read through the transcript.

Scalia hit Bopp, who was arguing on behalf of Doe, right out of the gate. Scalia sought to equate disclosing names on a petition to disclosing names of contributors to a political campaign.

JUSTICE SCALIA: What — what about requiring disclosure of campaign contributions?

MR. BOPP: Well –
SCALIA: Do you think that is unconstitutional?
MR. BOPP: This Court has upheld the disclosure in Buckley v. Valeo in 1976.
JUSTICE SCALIA: Right. Now, why doesn’t that fall within your principle that no person should be exposed to criticism for -3
JUSTICE SCALIA: What — what about requiring disclosure of campaign contributions?
MR. BOPP: Well -JUSTICESCALIA: Do you think that is unconstitutional?
MR. BOPP: This Court has upheld the disclosure in Buckley v. Valeo in 1976
.JUSTICE SCALIA: Right. Now, why doesn’t that fall within your principle that no person should be exposed to criticism for
MR. BOPP: Well, it could –
SCALIA: — his political beliefs?
Scalia also analogized the petition process to a legislative act, and historically legislative acts lacked any First Amendment privacy protections. He delivers a pretty good soliloquy here.
JUSTICE SCALIA: Mr. Bopp, do you have any case in which we have held that the First Amendment applies to activity that consists of the process of legislation, of legislating or of adopting legislation?
MR. BOPP: Yes, Buckley II.
JUSTICE SCALIA: What is that?
MR. BOPP: Buckley II, you struck down the requirement that the person who is soliciting signatures self-identify.
JUSTICE SCALIA: That is — soliciting signatures is not taking part in the process of legislating.
MR. BOPP: Well –
JUSTICE SCALIA: The person who requests a referendum is taking — when there’s a certain number of signatures required to achieve it is taking part in that.
And in light of the fact that for the first century of our existence, even voting was public — you either did it raising your hand or by voice, or later, you had a ballot that was very visibly red or blue so that people knew which party you were voting for — the fact is that running a democracy takes a certain amount of civic courage. And the First Amendment does not protect you from criticism or even nasty phone calls when you exercise your political rights to legislate, or to take part in the legislative process.
You are asking us to enter into a whole new field where we have never gone before.
Scalia also quipped that disclosing the names to criticize the signers of the petitioner isn’t such a bad thing.
JUSTICE SCALIA: What about just — just -what about just wanting to know their names so you can criticize them?
MR. BOPP: Well –
JUSTICE SCALIA: Is — is that such a bad thing in a democracy?
MR. BOPP: Well, what is bad is not the criticism, it’s the public — it’s the government requiring you to disclose your identity and belief.
JUSTICE SCALIA: But part of the reason is so you can be out there and be responsible for the positions you have taken.
And curiously, Bopp answered Scalia with a question. Bold.
MR. BOPP: Well, then why don’t they require both sides?
JUSTICE SCALIA: So that people — people can criticize you for the position you have taken.
MR. BOPP: Then why don’t they require both sides if that was the purpose?
JUSTICE SCALIA: What do you mean, “both sides”? The other side hasn’t signed anything.
MR. BOPP: The other side -(
JUSTICE SCALIA: When they sign something, they will be out there for public criticism as well.
MR. BOPP: Okay. But this is a one-way street.
JUSTICE SCALIA: Oh, this is such a touchy-feely, oh, so sensitive about — about any -(
JUSTICE SCALIA: You know, you can’t run a democracy this way, with everybody being afraid of having his political positions known.
Bopp raised the issue of threats made against his clients because of the petition. But Scalia did not bite, and noted that the threat of criminal activity should not eliminate a reasonable, and likely constitutional, procedure.
MR. BOPP: I’m sorry, Justice Scalia, but the campaign manager of this initiative had his family sleep in his living room because of the threats.
JUSTICE SCALIA: Well, that’s bad. The threats should be moved against vigorously, but just because there can be criminal activity doesn’t mean that you — you have to eliminate a procedure that is otherwise perfectly reasonable.
More analysis after the jump.
Justice Ginsbug raised an interesting issue, and noted that often groups such as Project Marriage sell and trade lists of petitioner signers; would not this eliminate any possible privacy interests?
JUSTICE GINSBURG: May I — may I ask you one — something that was not in your brief, but was in the secretary’s brief. Is this list available to Project Marriage? And specifically on page 34 of secretary Reed’s brief, the statement is made. The sponsoring organizations sometimes sell or trade these lists. They use them for fundraising purposes. So that would be the end of a person’s privacy, at least on one side. Is that true, that the initiative sponsor uses these lists?
MR. BOPP: Yes.
MR. BOPP: Yes, this is an act of private association. The petition signers are associating with the referendum committee for purposes of placing –
Justice Sotomayor also probed the contours of a possible right to privacy, and asked whether it would be limited to the voting context.
JUSTICE SOTOMAYOR: Counsel, if we create this right of — this constitutional right of association in the manner that you are describing it, why is it limited to the voting area?
Would we be inviting review if a group of citizens get together and send a letter to an agency that says: Please pass X regulation, or rescind Y regulation? Would the agency be prohibited from making that letter public.
MR. BOPP: Well, potentially. And — and
this Court — I — because it would be required to be subject to a First Amendment analysis. It’s this Court that created, in the NAACP case –
JUSTICE SOTOMAYOR: So you’re — you’re suggesting –
MR. BOPP: — the right of private association.
JUSTICE SOTOMAYOR: — that when the petitioner or a person engages in political discourse with the government, that they — and they choose to do it, because the government is not compelling them to write to it, it is not compelling them to sign the referendum. It’s just –
MR. BOPP: And they are not compelling Ms. McIntyre to distribute her brochure, either. But this Court held that –
SOTOMAYOR: But it’s — but Ms. McIntyre wasn’t asking the government to engage its process in her favor. She was asking for political reform, but she wasn’t asking to engage the government process on her behalf.
MR. BOPP: Well, the government, you know, has a lot of options. For instance, they don’t have to conduct elections for the election of judge. But if they opt to do that and provide that procedure, well, then, the First Amendment applies to the political speech.
In a curious exchange, Justice Scalia gets Washington confused with California. I suppose in the eyes of the Supreme Court, CA9 Reversed KTHXBAI is all they need to know, so there ain’t much of a difference.
JUSTICE SCALIA: Didn’t you have some options, too? Have you started a referendum to repeal the — the California law that requires disclosure?
MR. BOPP: California law does not require disclosure of the petitions, and that has been upheld by the courts of California. And you can verify these signatures.
JUSTICE SCALIA: I don’t understand. I thought that is what you are challenging. The -MR.
BOPP: Well, but you asked about California.
JUSTICE SCALIA: I’m sorry. I’m sorry. Washington. I got the wrong State.
Chief Justice Roberts seemed more amenable to Doe’s claims, and finding a violation of the First Amendment by forcing the disclosure of the names on the petition. He asked General McKenna, representing Washington, whether the State could disclose the names of voters and whom they voted for.
CHIEF JUSTICE ROBERTS: Counsel, if the State had a law that you could disclose voters and for whom they voted, would that implicate First Amendment interests?
GENERAL McKENNA: Yes, Mr. Chief Justice, we would — we do believe that First Amendment interests would be implicated by revealing how people voted, and we don’t see a legitimate State interest in knowing how people voted, only
But Scalia jumps in and notes the fact that the United States did not have the secret ballot for over a hundred years.
JUSTICE SCALIA: So the country was acting unconstitutionally for a whole century before we adopted the Australian secret ballot? Do you really think that?
GENERAL McKENNA: No, Justice Scalia. I –
JUSTICE SCALIA: That it was unconstitutional for a whole century not to have a secret ballot?
GENERAL McKENNA: No, Justice Scalia, I didn’t say that I thought that the secret ballot was constitutionally required. I was asked by the Chief Justice whether some First Amendment interests would be implicated. They probably would be.
The Chief counters, and asks McKenna to distinguish disclosing votes, and disclosing petitions.
CHIEF JUSTICE ROBERTS: What would the First Amendment interests be?
GENERAL McKENNA: Well, the First Amendment interest in how you vote?
GENERAL McKENNA: You know, it might be implicated by a potential chill from voting, if you know your vote is going to be revealed.
CHIEF JUSTICE ROBERTS: Do you think having your name revealed on a petition of this sort might have a chilling effect on whether you sign it?
GENERAL McKENNA: Mr. Chief Justice, some chill may result, just as some chill may result from having your campaign contributions disclosed, or the fact that you have registered to vote and provided your name, address, your voting history is being disclosed. So some chill might be — might result, but we do not think that it is significant enough.
CHIEF JUSTICE ROBERTS: You don’t think revealing that you are a voter has the same chilling
effect as revealing how you voted, do you?
GENERAL McKENNA: No, I do not. I think how you voted would have a much greater chilling effect than the fact that you are registered to vote.
And — and, of course, this Court has not ruled on whether the secret ballot is, you know, a constitutional right. If — if it is, then is town hall voting in New England unconstitutional? Is the caucus system in Iowa for presidential candidates unconstitutional? The Court in this case does not have -CHIEF
JUSTICE ROBERTS: I thought you told me that the First Amendment interests were implicated with respect to the secret ballot, that you couldn’t require people to reveal how they voted.
GENERAL McKENNA: We don’t — we don’t know if this Court would rule that the vote could never be revealed. We know that in some places, votes are done in public. We know that before the late 1800s, there was no secret ballot. We just — we don’t know what the constitutional ruling would be. But we — we do know that in this case, it’s not necessary for the Court to reach that — that determination, because in this case
And Justice Breyer, who makes his first appearance on page 36 of the transcript, launches into a classic hypothetical.
JUSTICE BREYER: Suppose that in 1957 in Little Rock, a group of Little Rock citizens had wanted to put on the ballot a petition to require the school board to reopen Central High School, which had been closed because there was a sentiment in the community that they didn’t want integration. And it was pointed out that if they signed this petition, there was a very good chance that their businesses would be bombed, that they would certainly be boycotted, that their children might be harassed.
Now, is there no First Amendment right in protecting those people? And if there is, how does it differ from your case?
Prop 8 makes a brief mention, but nothing significant.
CHIEF JUSTICE ROBERTS: No, but what’s the — what’s the other one that’s going to get people — that’s the most controversial public issue?
SOTOMAYOR: Proposition 8?
-CHIEF JUSTICE ROBERTS: No, I’m talking about in Washington, counsel.
GENERAL McKENNA: In Washington State. Mr. Chief Justice, we have had measures on assisted suicide, for example, which was very controversial, and — and there is no evidence involving that set of petitions.
Justice Kennedy also raises questions about the history of the Petition Clause!
JUSTICE KENNEDY: This case will likely be controlled by our First Amendment precedents, because that’s the most fully developed.
Did you look at the Petition Clause at all? In the early days of the republic, the petitions were the way in which you communicate with your legislator.
JUSTICE KENNEDY: And I tried to look it up. I have a recollection, but I’m not sure, that those petitions were sometimes put in the congressional record. Did you look at the history of the Petition Clause?