Justice Stevens capped his 35-year tenure on the bench on Wednesday with a muted farewell. But the case before the Court, Doe v. Reed, may shape the debate on the First Amendment's free speech protections and same-sex marriage long after Stevens' departure.
Doe v. Reed concerns the public disclosure of the identities of those who signed an anti-gay petition, an attempt to strike down a Washington State law that expanded the rights of domestic partners, including same-sex couples. Concerned about potential acts of harassment and reprisal, the petition's signatories are vying to shield themselves from the Washington Public Records Act (PRA), which reveals the identities of those involved in legislative activities, including referendums.
Justice Scalia, in particular, assailed the idea that disclosing the names of the petitioners would pose a constitutional concern.
"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," said Scalia.
"Oh, this is such a touchy-feely [argument]," he later added, "You can't run a democracy this way, with everybody being afraid of having his political positions known."
Echoing Scalia, Justice Stevens chimed in briefly at one point, suggesting that public disclosure could serve a public interest by fostering debate.
"Would it be [a] legitimate public interest to say, I would like to know who signed the petition, because I would like to try to persuade them that their views should be modified? Is there public interest in encouraging debate on the underlying issue?"
Currently, other States, such as New York, publicize materials such as voter registration lists.
Doe v. Reed represents the Court's latest iteration in an increasing number of First Amendment cases. Last week, the Court struck down a federal law prohibiting the sale of depictions of animal cruelty.