Alex Blaze

R-71 campaign sues for secrecy

Filed By Alex Blaze | July 30, 2009 5:30 PM | comments

Filed in: Politics
Tags: ballot initiatives, domestic partnership, LGBT, nondisclosure, petition, r-71

Add Washington to the list that previously included Florida and California:

U.S. District Judge Benjamin Settle agreed to the temporary restraining order Wednesday, in a case that questions whether Washington's open-government laws could discourage free speech.

The case centers on Referendum 71, which would ask voters to approve or reject expanded partnership rights for gay couples.

The names of everyone who signed R-71 petitions are publicly available under state law, and a gay-rights group is planning to post all of the petition signers' names online.

But the R-71 campaign says that could lead to harassment. The state didn't oppose the restraining order, but it will defend the public records law in court.

Why can't these groups ever name a single instance of harassment because the signers and donors to anti-gay campaigns are made public (well, more conveniently available - they're already public). We all know that if there was even a half-an-instance where someone who donated was bothered in a way that could be called "intimidation" (that would require you to squint and turn your head sideways to see), it would become part of fundie lore, plastered over every one of their sites and included in every single press release and every single rally until they're calling for the death penalty for everyone who comes out to keep them safe.

This is, of course, a bad idea. If they make the signers of these petitions private, they're going to start faking them in order to get enough cheaply. They're public for a reason - if they put your long-dead tía Claudia on their petition, you should be able to know and inform the state of what they're up to. Signing a petition to put a law on the ballot inherently makes them participants in the legislative process.

Of course they want to operate in secrecy. I understand why they want to be free from criticism of their actions. But an open democracy just can't function that way. I hope the judge slams them down just as everyone else who tried to keep that information secret has been.

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There have been allegations that the signature gatherers have been deceptively presenting the petition as one in support of expanded DP rights. i.e.

Consequently, publishing names increases the chances of this being found out.

you should know that rcw 42.17.010, relating to campaign finance disclosure, contains this language:

"...however, this chapter shall be enforced so as to insure that the information disclosed will not be misused for arbitrary and capricious purposes and to insure that all persons reporting under this chapter will be protected from harassment and unfounded allegations based on information they have freely disclosed."

on the other side of the coin...the washington public records act, rcw 42.56:

"42.56.050 Invasion of privacy, when.

A person's "right to privacy," "right of privacy," "privacy," or "personal privacy," as these terms are used in this chapter, is invaded or violated only if disclosure of information about the person:

(1) Would be highly offensive to a reasonable person, and

(2) is not of legitimate concern to the public. The provisions of this chapter dealing with the right to privacy in certain public records do not create any right of privacy beyond those rights that are specified in this chapter as express exemptions from the public's right to inspect, examine, or copy public records.

[1987 c 403 § 2. Formerly RCW 42.17.255.]

Notes: Intent -- 1987 c 403: "The legislature intends to restore the law relating to the release of public records largely to that which existed prior to the Washington Supreme Court decision in "In Re Rosier," 105 Wn.2d 606 (1986).

The intent of this legislation is to make clear that:

(1) Absent statutory provisions to the contrary, agencies possessing records should in responding to requests for disclosure not make any distinctions in releasing or not releasing records based upon the identity of the person or agency which requested the records, and

(2) agencies having public records should rely only upon statutory exemptions or prohibitions for refusal to provide public records. Further, to avoid unnecessary confusion, "privacy" as used in RCW 42.17.255 is intended to have the same meaning as the definition given that word by the Supreme Court in "Hearst v. Hoppe," 90 Wn.2d 123, 135 (1978)." [1987 c 403 § 1.]"

I’m not an attorney nor a Constitutional Scholar, but I did have sixth grade civics. As I see it, there are three kinds of “speech.” Admittedly, each has some gray area and overlap.

First is private speech or expression. That’s the kind I hold with myself in my head, or privately with another person in a private place. I am not inviting anyone else to listen, nor making the comment such that someone else might reasonably hear or see my expression or comment.

Semi-private speech happens when I have a quiet conversation with another person in a public place…over lunch as an example. I’m not intending for the comments to be public, but both parties should realize that being in a public place can result in the comments being public.

Public Speech, to me, is that speech delivered in a truly public venue, “the town square (literal or virtual).” You are speaking there with the specific intent of public expression, and with a reasonable expectation your speech will be heard. In fact, being heard is generally the reason to conduct public speech. This is the type of speech specifically protected by the Constitution. As such, there are two sides to “free speech.” You have a right to take to the public square and speak freely, but I have a right to go to the public square and witness/hear your expression. You are not entitled to go into the public square, but demand that all others be kept beyond ear-shot.

This is what I think is going on in the case the R-71 supporters, and shame on this judge for even issuing a temporary restraining order. I believe the minute the R-71 supporters invoked a “free speech” claim of any kind, they immediately ended any expectation of privacy for the signers. In effect, what they have asked, and the court has granted, is the ability to express themselves in the public sphere, but have every other citizen held beyond ear-shot.

The Constitution guarantees us each a secret ballot, but we are not allowed to petition our government in secret. Despite Dick Cheney’s beliefs otherwise, that is the very reason for open government statutes. The people’s business is supposed to be done before the people (all of them). Whether or not it might cause people harassment should be of absolutely no concern to the courts. The question is, if a person ventures into the public square to petition their government, are other citizens allowed to listen. This Judge has failed the test.

The judge is a right-wing Bush appointee.