Gay Rights Group Planning to Publicly Out Signers of Referendum Petition

07/17/2009 05:12 am ET | Updated May 25, 2011

The Spokane Spokesman reports:

Petitions were being printed Tuesday for Referendum 71, which asks Washington voters to overturn a new law granting same-sex domestic partners many of the rights of spouses.

But those who sign the petitions may be in for a surprise. Some R-71 opponents have put up a Web site -- -- where they intend to post the names of all the required 120,577 signers.

Washington law apparently makes the names of petition signers publicly available, and if that's so then those who disagree with the petition certainly have a First Amendment right to publicize those names. To be sure, such public identification of people's political actions can deter people from exercising their political rights, and might even be intended to have that effect. (But the use of speech to pressure people through threat of social ostracism is constitutionally protected. And this is so even if the speech may have the effect of stimulating illegal discrimination against people — Washington law prohibits employers from discriminating against employees based on their political activities — and conceivably even violence.

(The site organizers are quoted as saying that "We think that it will help neighbors talk to each other," and the site also says that the publicity can help people verify the accuracy of the petitions. But I'm pretty sure that these won't be the main effects of the site's operation, and I suspect that they weren't the sole reasons for the site to be put up.)

Yet the rise in such outing tactics — especially now that people can use the Internet to easily turn formally public records that are practically inaccessible into records that are truly available to everyone in seconds — raises the question of just what records the government should make public, especially in unrestricted ways. Even if the government wants to let challengers check the validity of petition signatures, it can do so in ways that reveal less information, for instance by revealing only small but statistically valid samples, or (possibly) by requiring people who access the information to promise not to redistribute it (see, e.g., Seattle Times Co. v. Rhinehart, upholding such a protective order as to information released for purposes of litigation).

So my questions: Should referendum, initiative, recall, and candidate nomination signatures be treated more like voters' ballots, which are expected to be kept secret? Or should they be treated more like legislators' votes for proposed bills, which are expected to be made public? For that matter, how should we treat other political information, such as voters' party registration and the record of people's large campaign contributions, which is generally made public now? And what should be our ethical judgment about people's publicizing others' low-level political activity of this sort?