Seriously. Seriously? I am doing an end-of-term Supreme Court dialogue with two men whose first name was “General” for a while, and they’re going to make me talk about soccer? It’s going to be a long week. … Paul, welcome to Slate. I am, as Walter notes, a huge fan. And Walter, please recall that I am an equal-opportunity swooner. It’s so good to have you back to surf these last days of June with me again. When we started doing this dialogue nine years ago, we were only just beginning to imagine how the Internet would change everything, including Supreme Court coverage. This morning I wonder how the Internet will change doctrine.
The court just unloosed a tidal wave of decisions this morning, including the honest-services cases Paul was anticipating ( Skilling, Black, and Weyhrauch); as well as Morrison v. National Australia Bank. Paul, you asked in your post yesterday how the “court’s decision to cut a break to Conrad Black and Jeffrey Skilling would play with an increasingly populist public.” The court’s decision to limit honest services fraud to cases involving bribery or kickbacks has certainly heartened the attorneys for the convicted. And Sen. Patrick Leahy says in a statement today that in Skilling, the “court has once again disregarded the will of Congress and undermined those efforts to protect Americans from abuses by powerful corporate and political interests.” So I suppose there’s your answer. We just need to see if that criticism sticks.
Walter, in your first post you wrote about the pending decision in Doe v. Reed, and what you characterized as some of the “flopping” cases at the court this term; cases in which groups argue for extra protection from the courts based on their unpopular viewpoints and a fear of retaliation. We now have our answer in Doe v. Reed, and it appears that by an 8-1 margin the current court is unwilling to protect the privacy of the 138,000 people who signed a state referendum petition. Background: Washington state passed a law giving “everything but marriage” benefits to same-sex couples. A group called Protect Marriage Washington organized a petition drive to repeal it. The repeal failed. The state’s public records act would have permitted all those names to be disclosed, and Protect Marriage Washington argued that compelled disclosure of their signatures burdened their First Amendment rights and chilled political participation. They worried about harassment and reprisals similar to those experienced by the supporters of Proposition 8 in California.
Today, Chief Justice John Roberts, writing for the court, finds that the public disclosure of the names of signatories to referendum petitions does not necessarily violate the First Amendment and notes that the state’s interest in preserving the integrity of the electoral process is important to rooting out fraud. Roberts argues that the disclosure of signatures in most referendum petitions wouldn’t lead to the kinds of reprisals alleged in this case, but he is careful to say that the plaintiffs can still seek to be exempted from the disclosure rules in this specific case. Justice Samuel Alito writes separately to point out that these particular plaintiffs have a strong argument that the state’s Public Records Act violates their First Amendment rights. Alito says if all this information were posted on the Internet, anyone with access to a computer could find the names of signers’ spouses, phone numbers, driving directions to their homes, the price of their houses, and their children’s school information. Writes Alito: “The potential that such information could be used for harassment is vast.”
Justice John Paul Stevens disagrees: “This is not a hard case.” He says. “It is not about a restriction on voting or on speech and does not involve a classic disclosure requirement.” And Justice Antonin Scalia, echoing the rippling-bicep view of civic courage to which he gave voice at oral argument, observes: “Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.” He does not, he writes, “look forward to a society which, thanks to the Supreme Court, campaigns anonymously … and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble” he warns,” the Home of the Brave.”
Which brings us to the lone dissent, from Justice Clarence Thomas. Thomas argues that the state of Washington’s policy of disclosing all referendum signatures is unconstitutional because there will always be a narrower way to vindicate the state’s anti-fraud interests. Citing the “vital relationship between” political association “and privacy in one’s associations,” Thomas says that Washington needn’t post all of a signer’s information on the Internet in its effort to prevent fraud. Like Alito, he warns that “the state of technology today creates at least some probability that signers of every referendum will be subjected to threats, harassment, or reprisals if their personal information is disclosed.” He also warns that that “disclosure permits citizens … to react to the speech of [their political opponents] in a proper—or undeniably improper—way long before a plaintiff could prevail on an as-applied challenge.”
Floppery factor, Walter? I can’t decide. At oral argument, I found Alito and Thomas to be extremely (even irrationally?) worried about the crazed folks who lurk online, although I’m not completely persuaded by Scalia’s argument that if you can’t shout your political views from the rooftops, you’re too big a wuss for American democracy. The court seems to think that the ballot referendum is the determinative factor here. But I suspect for some of them it’s actually the Internet that’s changed everything.
Looking forward to your thoughts on this, Skilling, and soccer.