Gay Rights Groups v. Free Speech in the Supreme Court

06/28/2010 05:12 am ET | Updated May 25, 2011

This morning, the Supreme Court will hear arguments on a significant free speech issue: whether the names on a petition submitted to state officials should be available to the public. Gay rights groups are pushing for the release of names on a petition for Referendum 71 in Washington State -- a ballot measure aimed at rolling back domestic partnership rights for same-sex couples. State law supports them, requiring the release of the names. Social conservatives want the names to remain a secret because they fear reprisal.

While I am not one to celebrate successes by groups like Protect Marriage Washington, in this case, gay rights groups are on the wrong side of history.

The lower court agreed with the conservatives and upheld a preliminary injunction blocking the names. This means that the state court found that the conservative group's case was likely to succeed, that the release of the names would cause irreparable harm, that an injunction is in the public interest and that the harm to the petition signers if the names were released would be greater than the harm to the gay rights groups if the names remain a secret.

In the name of promoting equality, Washington Families Standing Together and others are arguing that individuals who sign petitions and then hope their support for a certain political issue will remain a secret should be forced out in the open. Partially, this move for transparency is an attempt to ensure that petitions can be publicly verified and partially it is an attempt to identify individuals as targets for legal and effective political tactics like boycotts (we saw this in California with Proposition 8 funders).

I wholeheartedly support both aims.

But free speech guarantees in the United States, while not unlimited, are clearly intended to protect political speech. Actions that chill political speech, discourage political engagement, are often found to be unconstitutional. If social conservatives in Washington are scared of reprisal, their political participation will be less likely if they know that the content of the petition is public. This is the definition of a chill.

The interest in ensuring the validity of the petition is small because the state already has an independent verification process that does not threaten the anonymity of the signers.

Gay rights groups are also arguing that the constitution doesn't protect petition signers. According to their brief, signing a petition is not an expressive act and therefore not covered by the first amendment. The lower courts disagree and so do I since actions have, for many years, been found to have expressive content and signing a political referendum petition seems to be clearly an expression of support for that referendum as well as a political action that furthers the progress of that referendum.

Their brief states that a petition is like seconding a motion and is a public political act that doesn't deserve added guarantees of anonymity. The lower court found that the two are different processes and the petition signing is more akin to the expression of support for a political idea that would appear in a newspaper - the kind of expression where the author has a right to remain anonymous.

Even if the gay rights groups are correct on the merits, they are wrong on the politics. We shouldn't be winning the fight for gay marriage by discouraging people from expressing their beliefs. The fight for equality is a fight for the hearts and minds of all Americans, not a movement intended to shame and silence a majority. We don't need to silence them. Referendum 71 failed in Washington. Just as the nation is becoming more and more open to the idea of equal marriage rights, so is the state of Washington. And all without practices that discourage the bigots in that state from publicly or privately promoting their ideas.

The claims that equality activists harass and intimidate known conservatives are clearly false and the court should, and has yet to, make that clear. But even unfounded fears of reprisal can discourage conversation, participation and engagement.

We don't want that.

We want a robust conversation, a freedom of participation, we want to welcome the other side with open arms and prove to them we can win the fight for equality even if all pains are taken to protect them from having to publicly state their beliefs.