Not so fast in Doe v. Reed
on Apr 28, 2010 at 4:10 pm
I happened to be in the courtroom today for the argument in Doe v. Reed, which was Justice Stevensâ€™ last argued case.Â Early reporting and commentary on the decision â€“ with which I agree entirely â€“ has been that the Court will affirm by a wide margin the Ninth Circuitâ€™s refusal to grant the particular injunction now before the Court.
But it does not follow, as some have thought, that the courts will in fact allow the lists of petition signatories to be released.Â In fact, I think there is a significant chance they will not.
The lopsided tone of the argument in favor of the State of Washington today depended very much on two factors:Â Justice Scaliaâ€™s strong views that disclosure does not implicate any constitutional interest, and the caseâ€™s procedural posture.Â The latter point is critical.Â As the Justices understood the case, it came to them presenting only a categorical, â€œfacialâ€ question: whether the signatories to an initiative can ever be disclosed consistent with the First Amendment.Â That issue â€“ presented by Count I of the plaintiffsâ€™ complaint â€“ was decided below.
The case thus did not present the significantly narrower question whether the signatories to this referendum may be disclosed.Â That issue â€“ presented by Count II of the plaintiffsâ€™ complaint â€“ was not resolved by the lower courts.
The argument was heavily oriented towards the State because only one Justice â€“ Justice Alito â€“ seemed to favor the view that the First Amendment would broadly prohibit all such disclosures.Â The other members of the Court seemed quite clear â€“ and the issue was framed by a very early question by the Chief Justice that this was only a â€œfacialâ€ attack â€“ that there would be many instances in which disclosure would not implicate the harassment-related concerns of this initiative and for which disclosure of the signatories would not be worrisome.
The analogy repeated a few times in the argument was that it is generally true that the government may require the disclosure of campaign contributions, but it has also held open the possibility that a party may justify nondisclosure based on unique circumstances.
Notably, it was two of the more liberal members of the Court who seemed quite interested in preserving the possibility of an as-applied challenge to disclosure related to this particular referendum.Â Justice Breyer said almost nothing, but asked a pointed question to the Stateâ€™s Attorney General about whether civil rights advocates in Little Rock, Arkansas could have been forced to disclose their advocacy of a hypothetical referendum to support re-opening a school that had been closed in an effort to maintain segregation.Â And Justice Ginsburg repeatedly returned to the distinction between the two counts of the complaint.
Itâ€™s also important to recognize that the Court both granted certiorari and stayed the judgment here, and Justice Thomas cited the prospect of harassment in his opinion in Citizens United.Â So it would be surprising for them to engage in a complete about-face.
I therefore expect the Courtâ€™s decision to be unanimous or nearly so in agreeing that the issuance of an injunction on Count I of the complaint was inappropriate and that the case should return to the district court for further proceedings.Â Beyond that, the Court may break into three separate camps:Â that as-applied challenges should be easy (Justice Alito); that they should be exceptionally hard or prohibited altogether (Justice Scalia); Â and that a middle ground is appropriate.Â Or the Court may finesse the issue of the proper standard by leaving it unresolved.
I think there is a significant chance that a majority of the Court will signal that the district court should on remand consider very seriously the request for an injunction as to this referendum.Â And so there is a realistic chance that the State of Washington’s victory in this case will be short-lived.
In the end, however, I doubt that the opinion which results from todayâ€™s argument will be the last word on the disclosure of referendum signatories, and there is a significant chance that the case will be back in the Supreme Court in a year or two.