Doe v. Reed , 561 U.S. 186 ( 2010 )


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  • (Slip Opinion)              OCTOBER TERM, 2009                                       1
    
                                           Syllabus
    
             NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
           being done in connection with this case, at the time the opinion is issued.
           The syllabus constitutes no part of the opinion of the Court but has been
           prepared by the Reporter of Decisions for the convenience of the reader.
           See United States v. Detroit Timber & Lumber Co., 
    200 U.S. 321
    , 337.
    
    
    SUPREME COURT OF THE UNITED STATES
    
                                           Syllabus
    
      DOE ET AL. v. REED, WASHINGTON SECRETARY OF 
    
                        STATE, ET AL. 
    
    
    CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
                      THE NINTH CIRCUIT
    
           No. 09–559.      Argued April 28, 2010—Decided June 24, 2010
    The Washington Constitution allows citizens to challenge state laws by
      referendum. To initiate a referendum, proponents must file a peti
      tion with the secretary of state that contains valid signatures of reg
      istered Washington voters equal to or exceeding four percent of the
      votes cast for the office of Governor at the last gubernatorial election.
      A valid submission requires not only a signature, but also the signer’s
      address and the county in which he is registered to vote.
         In May 2009, Washington Governor Christine Gregoire signed into
      law Senate Bill 5688, which expanded the rights and responsibilities
      of state-registered domestic partners, including same-sex domestic
      partners. That same month, Protect Marriage Washington, one of
      the petitioners here, was organized as a “State Political Committee”
      for the purpose of collecting the petition signatures necessary to place
      a referendum challenging SB 5688 on the ballot. If the referendum
      made it onto the ballot, Protect Marriage Washington planned to en
      courage voters to reject SB 5688. Protect Marriage Washington sub
      mitted the petition with more than 137,000 signatures to the secre
      tary of state, and after conducting the verification and canvassing
      process required by state law, the secretary determined that the peti
      tion contained sufficient signatures to qualify the referendum (R–71)
      for the ballot. Respondent intervenors invoked the Washington Pub
      lic Records Act (PRA) to obtain copies of the petition, which contained
      the signers’ names and addresses.
         The R–71 petition sponsor and certain signers filed a complaint
      and a motion for injunctive relief in Federal District Court, seeking to
      enjoin the public release of the petition. Count I alleges that the PRA
      “is unconstitutional as applied to referendum petitions,” and Count II
    2                              DOE v. REED
    
                                      Syllabus
    
        alleges that the PRA “is unconstitutional as applied to the Referen
        dum 71 petition because there is a reasonable probability that the
        signatories . . . will be subjected to threats, harassment, and repri
        sals.” Determining that the PRA burdened core political speech, the
        District Court held that plaintiffs were likely to succeed on the merits
        of Count I and granted a preliminary injunction preventing release of
        the signatory information. Reviewing only Count I, the Ninth Circuit
        held that plaintiffs were unlikely to succeed on their claim that the
        PRA is unconstitutional as applied to referendum petitions in gen
        eral, and therefore reversed.
    Held: Disclosure of referendum petitions does not as a general matter
     violate the First Amendment. Pp. 4–13.
        (a) Because plaintiffs’ Count I claim and the relief that would fol
     low—an injunction barring the secretary of state from releasing ref
     erendum petitions to the public—reach beyond the particular circum
     stances of these plaintiffs, they must satisfy this Court’s standards
     for a facial challenge to the extent of that reach. See United States v.
     Stevens, 
    559 U.S.
    ___, ___. Pp. 4–5.
        (b) The compelled disclosure of signatory information on referen
     dum petitions is subject to review under the First Amendment. In
     most cases, the individual’s signature will express the view that the
     law subject to the petition should be overturned. Even if the signer is
     agnostic as to the merits of the underlying law, his signature still ex
     presses the political view that the question should be considered “by
     the whole electorate.” Meyer v. Grant, 
    486 U.S. 414
    , 421. In either
     case, the expression of a political view implicates a First Amendment
     right.
        Petition signing remains expressive even when it has legal effect in
     the electoral process. But that does not mean that the electoral con
     text is irrelevant to the nature of this Court’s First Amendment re
     view. States have significant flexibility in implementing their own
     voting systems. To the extent a regulation concerns the legal effect of
     a particular activity in that process, the government is afforded sub
     stantial latitude to enforce that regulation. Also pertinent is the fact
     that the PRA is not a prohibition on speech, but a disclosure re
     quirement that may burden “the ability to speak, but [does] ‘not pre
     vent anyone from speaking.’ ” Citizens United v. Federal Election
     Comm’n, 
    558 U.S.
    ___, ___. This Court has reviewed First Amend
     ment challenges to disclosure requirements in the electoral context
     under an “exacting scrutiny” standard, requiring “a ‘substantial rela
     tion’ between the disclosure requirement and a ‘sufficiently impor
     tant’ governmental interest.” Id., at ___. To withstand this scrutiny,
     “the strength of the governmental interest must reflect the serious
     ness of the actual burden on First Amendment rights.” Davis v. Fed
                       Cite as: 561 U. S. ____ (2010)                      3
    
                                  Syllabus
    
    eral Election Comm’n, 
    554 U.S.
    ___, ___. Pp. 5–7.
       (c) The State’s interest in preserving the integrity of the electoral
    process suffices to defeat the argument that the PRA is unconstitu
    tional with respect to referendum petitions in general. That interest
    is particularly strong with respect to efforts to root out fraud. But
    the State’s interest is not limited to combating fraud; it extends to ef
    forts to ferret out invalid signatures caused not by fraud but by sim
    ple mistake, such as duplicate signatures or signatures of individuals
    who are not registered to vote in the State. The State’s interest also
    extends more generally to promoting transparency and accountability
    in the electoral process.
       Plaintiffs contend that disclosure is not sufficiently related to the
    interest of protecting the integrity of the electoral process to with
    stand First Amendment scrutiny. They argue that disclosure is not
    necessary because the secretary of state is already charged with veri
    fying and canvassing the names on a petition, a measure’s advocates
    and opponents can observe that process, any citizen can challenge the
    secretary’s actions in court, and criminal penalties reduce the danger
    of fraud in the petition process. But the secretary’s verification and
    canvassing will not catch all the invalid signatures, and public disclo
    sure can help cure the inadequacies of the secretary’s process. Dis
    closure also helps prevent difficult-to-detect fraud such as outright
    forgery and “bait and switch” fraud, in which an individual signs the
    petition based on a misrepresentation of the underlying issue. And
    disclosure promotes transparency and accountability in the electoral
    process to an extent other measures cannot. Pp. 8–10.
       (d) Plaintiffs’ main objection is that “the strength of the govern
    mental interest” does not “reflect the seriousness of the actual burden
    on First Amendment rights.” Davis, supra, at ___. According to
    plaintiffs, the objective of those seeking disclosure is not to prevent
    fraud, but to publicly identify signatories and broadcast their politi
    cal views on the subject of the petition. Plaintiffs allege, for example,
    that several groups plan to post the petitions in searchable form on
    the Internet, and then encourage other citizens to seek out R–71 peti
    tion signers. That, plaintiffs argue, would subject them to threats,
    harassment, and reprisals.
       The problem for plaintiffs is that their argument rests almost en
    tirely on the specific harm that would attend the disclosure of infor
    mation on the R–71 petition. But the question before the Court at
    this stage of the litigation is whether disclosure of referendum peti
    tions in general violates the First Amendment. Faced with the
    State’s unrebutted arguments that only modest burdens attend the
    disclosure of a typical petition, plaintiffs’ broad challenge to the PRA
    must be rejected. But upholding the PRA against a broad-based chal
    4                             DOE v. REED
    
                                     Syllabus
    
        lenge does not foreclose success on plaintiffs’ narrower challenge in
        Count II, which is pending before the District Court. See Buckley v.
        Valeo, 
    424 U.S. 1
    , 74. Pp. 10–13.
    
    586 F.3d 671
    , affirmed.
    
      ROBERTS, C. J., delivered the opinion of the Court, in which KENNEDY,
    GINSBURG, BREYER, ALITO, and SOTOMAYOR, JJ., joined. BREYER, J., and
    ALITO, J., filed concurring opinions. SOTOMAYOR, J., filed a concurring
    opinion, in which STEVENS and GINSBURG, JJ., joined. STEVENS, J., filed
    an opinion concurring in part and concurring in the judgment, in which
    BREYER, J., joined. SCALIA, J., filed an opinion concurring in the judg
    ment. THOMAS, J., filed a dissenting opinion.
                           Cite as: 561 U. S. ____ (2010)                              1
    
                                Opinion of the Court
    
        NOTICE: This opinion is subject to formal revision before publication in the
        preliminary print of the United States Reports. Readers are requested to
        notify the Reporter of Decisions, Supreme Court of the United States, Wash
        ington, D. C. 20543, of any typographical or other formal errors, in order
        that corrections may be made before the preliminary print goes to press.
    
    
    SUPREME COURT OF THE UNITED STATES
                                      _________________
    
                                      No. 09–559
                                      _________________
    
    
      JOHN DOE #1, ET AL., PETITIONERS v. SAM REED, 
    
        WASHINGTON SECRETARY OF STATE, ET AL. 
    
     ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
    
                APPEALS FOR THE NINTH CIRCUIT
    
                                    [June 24, 2010] 
    
    
      CHIEF JUSTICE ROBERTS delivered the opinion of the
    Court.
      The State of Washington allows its citizens to challenge
    state laws by referendum. Roughly four percent of Wash
    ington voters must sign a petition to place such a referen
    dum on the ballot. That petition, which by law must
    include the names and addresses of the signers, is then
    submitted to the government for verification and canvass
    ing, to ensure that only lawful signatures are counted.
    The Washington Public Records Act (PRA) authorizes
    private parties to obtain copies of government documents,
    and the State construes the PRA to cover submitted refer
    endum petitions.
      This case arises out of a state law extending certain
    benefits to same-sex couples, and a corresponding referen
    dum petition to put that law to a popular vote. Respon
    dent intervenors invoked the PRA to obtain copies of the
    petition, with the names and addresses of the signers.
    Certain petition signers and the petition sponsor objected,
    arguing that such public disclosure would violate their
    rights under the First Amendment.
    2                        DOE v. REED
    
                          Opinion of the Court
    
      The course of this litigation, however, has framed the
    legal question before us more broadly. The issue at this
    stage of the case is not whether disclosure of this particu
    lar petition would violate the First Amendment, but
    whether disclosure of referendum petitions in general
    would do so. We conclude that such disclosure does not as
    a general matter violate the First Amendment, and we
    therefore affirm the judgment of the Court of Appeals. We
    leave it to the lower courts to consider in the first instance
    the signers’ more focused claim concerning disclosure of
    the information on this particular petition, which is pend
    ing before the District Court.
                                    I
      The Washington Constitution reserves to the people the
    power to reject any bill, with a few limited exceptions not
    relevant here, through the referendum process. Wash.
    Const., Art. II, §1(b). To initiate a referendum, proponents
    must file a petition with the secretary of state that con
    tains valid signatures of registered Washington voters
    equal to or exceeding four percent of the votes cast for the
    office of Governor at the last gubernatorial election.
    §§1(b), (d). A valid submission requires not only a signa
    ture, but also the signer’s address and the county in which
    he is registered to vote. Wash. Rev. Code §29A.72.130
    (2008).
      In May 2009, Washington Governor Christine Gregoire
    signed into law Senate Bill 5688, which “expand[ed] the
    rights and responsibilities” of state-registered domestic
    partners, including same-sex domestic partners. 
    586 F.3d 671
    , 675 (CA9 2009). That same month, Protect Marriage
    Washington, one of the petitioners here, was organized as
    a “State Political Committee” for the purpose of collecting
    the petition signatures necessary to place a referendum on
    the ballot, which would give the voters themselves an
    opportunity to vote on SB 5688. App. 8–9. If the referen
                     Cite as: 561 U. S. ____ (2010)           3
    
                         Opinion of the Court
    
    dum made it onto the ballot, Protect Marriage Washington
    planned to encourage voters to reject SB 5688. Id., at 7, 9.
      On July 25, 2009, Protect Marriage Washington submit
    ted to the secretary of state a petition containing over
    137,000 signatures. See 
    586 F. 3d
    , at 675; Brief for Re
    spondent Washington Families Standing Together 6. The
    secretary of state then began the verification and canvass
    ing process, as required by Washington law, to ensure that
    only legal signatures were counted. Wash. Rev. Code
    §29A.72.230. Some 120,000 valid signatures were re
    quired to place the referendum on the ballot. Sam Reed,
    Washington Secretary of State, Certification of Referen
    dum 71 (Sept. 2, 2009). The secretary of state determined
    that the petition contained a sufficient number of valid
    signatures, and the referendum (R–71) appeared on the
    November 2009 ballot. The voters approved SB 5688 by a
    margin of 53% to 47%.
      The PRA, Wash. Rev. Code §42.56.001 et seq., makes all
    “public records” available for public inspection and copy
    ing. §42.56.070(1) (2008). The Act defines “[p]ublic re
    cord” as “any writing containing information relating to
    the conduct of government or the performance of any
    governmental or proprietary function prepared, owned,
    used, or retained by any state or local agency.”
    §42.56.010(2). Washington takes the position that refer
    endum petitions are “public records.” Brief for Respon
    dent Reed 5.
      By August 20, 2009, the secretary had received requests
    for copies of the R–71 petition from an individual and four
    entities, including Washington Coalition for Open Gov
    ernment (WCOG) and Washington Families Standing
    Together (WFST), two of the respondents here. 
    586 F. 3d
    ,
    at 675.       Two entities, WhoSigned.org and Know-
    ThyNeighbor.org, issued a joint press release stating their
    intention to post the names of the R–71 petition signers
    online, in a searchable format. See App. 11; 
    586 F. 3d
    , at
    4                       DOE v. REED
    
                         Opinion of the Court
    
    675.
       The referendum petition sponsor and certain signers
    filed a complaint and a motion for a preliminary injunction
    in the United States District Court for the Western Dis
    trict of Washington, seeking to enjoin the secretary of
    state from publicly releasing any documents that would
    reveal the names and contact information of the R–71
    petition signers. App. 4. Count I of the complaint alleges
    that “[t]he Public Records Act is unconstitutional as ap
    plied to referendum petitions.” Id., at 16. Count II of the
    complaint alleges that “[t]he Public Records Act is uncon
    stitutional as applied to the Referendum 71 petition be
    cause there is a reasonable probability that the signatories
    of the Referendum 71 petition will be subjected to threats,
    harassment, and reprisals.” Id., at 17. Determining that
    the PRA burdened core political speech, the District Court
    held that plaintiffs were likely to succeed on the merits of
    Count I and granted them a preliminary injunction on
    that count, enjoining release of the information on the
    petition. 
    661 F. Supp. 2d 1194
    , 1205–1206 (WD Wash.
    2009).
       The United States Court of Appeals for the Ninth Cir
    cuit reversed. Reviewing only Count I of the complaint,
    the Court of Appeals held that plaintiffs were unlikely to
    succeed on their claim that the PRA is unconstitutional as
    applied to referendum petitions generally. It therefore
    reversed the District Court’s grant of the preliminary
    injunction. 
    586 F. 3d
    , at 681. We granted certiorari. 
    558 U.S.
    ___ (2010).
                                II
      It is important at the outset to define the scope of the
    challenge before us. As noted, Count I of the complaint
    contends that the PRA “violates the First Amendment as
    applied to referendum petitions.” App. 16. Count II as
    serts that the PRA “is unconstitutional as applied to the
                     Cite as: 561 U. S. ____ (2010)            5
    
                         Opinion of the Court
    
    Referendum 71 petition.” Id., at 17. The District Court
    decision was based solely on Count I; the Court of Appeals
    decision reversing the District Court was similarly lim
    ited. 
    586 F. 3d
    , at 676, n. 6. Neither court addressed
    Count II.
       The parties disagree about whether Count I is properly
    viewed as a facial or as-applied challenge. Compare Reply
    Brief for Petitioners 8 (“Count I expressly made an as
    applied challenge”), with Brief for Respondent Reed 1
    (“This is a facial challenge to Washington’s Public Records
    Act”). It obviously has characteristics of both: The claim is
    “as applied” in the sense that it does not seek to strike the
    PRA in all its applications, but only to the extent it covers
    referendum petitions. The claim is “facial” in that it is not
    limited to plaintiffs’ particular case, but challenges appli
    cation of the law more broadly to all referendum petitions.
       The label is not what matters. The important point is
    that plaintiffs’ claim and the relief that would follow—an
    injunction barring the secretary of state “from making
    referendum petitions available to the public,” App. 16
    (Complaint Count I)—reach beyond the particular circum
    stances of these plaintiffs. They must therefore satisfy our
    standards for a facial challenge to the extent of that reach.
    See United States v. Stevens, 
    559 U.S.
    ___, ___ (2010) (slip
    op., at 10).
                                III 
    
                                 A
    
       The compelled disclosure of signatory information on
    referendum petitions is subject to review under the First
    Amendment. An individual expresses a view on a political
    matter when he signs a petition under Washington’s
    referendum procedure. In most cases, the individual’s
    signature will express the view that the law subject to the
    petition should be overturned. Even if the signer is agnos
    tic as to the merits of the underlying law, his signature
    6                       DOE v. REED
    
                         Opinion of the Court
    
    still expresses the political view that the question should
    be considered “by the whole electorate.” Meyer v. Grant,
    
    486 U.S. 414
    , 421 (1988). In either case, the expression of
    a political view implicates a First Amendment right. The
    State, having “cho[sen] to tap the energy and the legiti
    mizing power of the democratic process, . . . must accord
    the participants in that process the First Amendment
    rights that attach to their roles.” Republican Party of
    Minn. v. White, 
    536 U.S. 765
    , 788 (2002) (internal quota
    tion marks and ellipsis omitted).
       Respondents counter that signing a petition is a legally
    operative legislative act and therefore “does not involve
    any significant expressive element.” Brief for Respondent
    Reed 31. It is true that signing a referendum petition may
    ultimately have the legal consequence of requiring the
    secretary of state to place the referendum on the ballot.
    But we do not see how adding such legal effect to an ex
    pressive activity somehow deprives that activity of its
    expressive component, taking it outside the scope of the
    First Amendment. Respondents themselves implicitly
    recognize that the signature expresses a particular view
    point, arguing that one purpose served by disclosure is to
    allow the public to engage signers in a debate on the mer
    its of the underlying law. See, e.g., id., at 45; Brief for
    Respondent WCOG 49; Brief for Respondent WFST 58.
       Petition signing remains expressive even when it has
    legal effect in the electoral process. But that is not to say
    that the electoral context is irrelevant to the nature of our
    First Amendment review. We allow States significant
    flexibility in implementing their own voting systems. See
    Burdick v. Takushi, 
    504 U.S. 428
    , 433–434 (1992). To the
    extent a regulation concerns the legal effect of a particular
    activity in that process, the government will be afforded
    substantial latitude to enforce that regulation. Also perti
    nent to our analysis is the fact that the PRA is not a pro
    hibition on speech, but instead a disclosure requirement.
                        Cite as: 561 U. S. ____ (2010)                  7
    
                            Opinion of the Court
    
    “[D]isclosure requirements may burden the ability to
    speak, but they . . . do not prevent anyone from speaking.”
    Citizens United v. Federal Election Comm’n, 
    558 U.S.
    ___,
    ___ (2010) (slip op., at 51) (internal quotation marks
    omitted).
       We have a series of precedents considering First
    Amendment challenges to disclosure requirements in the
    electoral context. These precedents have reviewed such
    challenges under what has been termed “exacting scru
    tiny.” See, e.g., Buckley v. Valeo, 
    424 U.S. 1
    , 64 (1976)
    (per curiam) (“Since NAACP v. Alabama [
    357 U.S. 449
    (1958),] we have required that the subordinating interests
    of the State [offered to justify compelled disclosure] sur
    vive exacting scrutiny”); Citizens United, supra, at ___
    (slip op., at 51) (“The Court has subjected [disclosure]
    requirements to ‘exacting scrutiny’ ” (quoting Buckley,
    supra, at 64)); Davis v. Federal Election Comm’n, 
    554 U.S.
    ___, ___ (2008) (slip op., at 18) (governmental interest in
    disclosure “ ‘must survive exacting scrutiny’ ” (quoting
    Buckley, supra, at 64)); Buckley v. American Constitu
    tional Law Foundation, Inc., 
    525 U.S. 182
    , 204 (1999)
    (ACLF) (finding that disclosure rules “fail[ed] exacting
    scrutiny” (internal quotation marks omitted)).
       That standard “requires a ‘substantial relation’ between
    the disclosure requirement and a ‘sufficiently important’
    governmental interest.” Citizens United, supra, at ___
    (slip op., at 51) (quoting Buckley, supra, at 64, 66). To
    withstand this scrutiny, “the strength of the governmental
    interest must reflect the seriousness of the actual burden
    on First Amendment rights.” Davis, supra, at ___ (slip op.,
    at 18) (citing Buckley, supra, at 68, 71).1
    ——————
      1 JUSTICE SCALIA doubts whether petition signing is entitled to any
    
    First Amendment protection at all. Post, at 1 (opinion concurring in
    judgment). His skepticism is based on the view that petition signing
    has “legal effects” in the legislative process, while other aspects of
    political participation—with respect to which we have held there is a
    8                             DOE v. REED 
    
    
                               Opinion of the Court 
    
    
                                   B
    
       Respondents assert two interests to justify the burdens
    of compelled disclosure under the PRA on First Amend
    ment rights: (1) preserving the integrity of the electoral
    process by combating fraud, detecting invalid signatures,
    and fostering government transparency and accountabil
    ity; and (2) providing information to the electorate about
    who supports the petition. See, e.g., Brief for Respondent
    Reed 39–42, 44–45. Because we determine that the
    State’s interest in preserving the integrity of the electoral
    process suffices to defeat the argument that the PRA is
    unconstitutional with respect to referendum petitions in
    general, we need not, and do not, address the State’s
    “informational” interest.
       The State’s interest in preserving the integrity of the
    electoral process is undoubtedly important. “States allow
    ing ballot initiatives have considerable leeway to protect
    the integrity and reliability of the initiative process, as
    they have with respect to election processes generally.”
    ACLF, 525 U. S., at 191. The State’s interest is particu
    larly strong with respect to efforts to root out fraud, which
    not only may produce fraudulent outcomes, but has a
    systemic effect as well: It “drives honest citizens out of the
    democratic process and breeds distrust of our govern
    ment.” Purcell v. Gonzalez, 
    549 U.S. 1
    , 4 (2006) (per
    curiam); see also Crawford v. Marion County Election Bd.,
    
    553 U.S. 181
    , 196 (2008) (opinion of STEVENS, J.). The
    ——————
    First Amendment interest, see supra, at 5–7—do not. See post, at 3–4,
    and n. 3. That line is not as sharp as JUSTICE SCALIA would have it; he
    himself recognizes “the existence of a First Amendment interest in
    voting,” post, at 6, which of course also can have legal effect. The
    distinction becomes even fuzzier given that only some petition signing
    has legal effect, and any such legal effect attaches only well after the
    expressive act of signing, if the secretary determines that the petition
    satisfies the requirements for inclusion on the ballot. See post, at 3.
    Petitions that do not qualify for the ballot of course carry no legal effect.
                     Cite as: 561 U. S. ____ (2010)            9
    
                         Opinion of the Court
    
    threat of fraud in this context is not merely hypothetical;
    respondents and their amici cite a number of cases of
    petition-related fraud across the country to support the
    point. See Brief for Respondent Reed 43; Brief for State of
    Ohio et al. as Amici Curiae 22–24.
       But the State’s interest in preserving electoral integrity
    is not limited to combating fraud. That interest extends to
    efforts to ferret out invalid signatures caused not by fraud
    but by simple mistake, such as duplicate signatures or
    signatures of individuals who are not registered to vote in
    the State. See Brief for Respondent Reed 42. That inter
    est also extends more generally to promoting transparency
    and accountability in the electoral process, which the
    State argues is “essential to the proper functioning of a
    democracy.” Id., at 39.
       Plaintiffs contend that the disclosure requirements of
    the PRA are not “sufficiently related” to the interest of
    protecting the integrity of the electoral process. Brief for
    Petitioners 51. They argue that disclosure is not neces
    sary because the secretary of state is already charged with
    verifying and canvassing the names on a petition, advo
    cates and opponents of a measure can observe that proc
    ess, and any citizen can challenge the secretary’s actions
    in court. See Wash. Rev. Code §§29A.72.230, 29A.72.240.
    They also stress that existing criminal penalties reduce
    the danger of fraud in the petition process. See Brief for
    Petitioners 50; §§29A.84.210, 29A.84.230, 29A.84.250.
       But the secretary’s verification and canvassing will not
    catch all invalid signatures: The job is large and difficult
    (the secretary ordinarily checks “only 3 to 5% of signa
    tures,” Brief for Respondent WFST 54), and the secretary
    can make mistakes, too, see Brief for Respondent Reed 42.
    Public disclosure can help cure the inadequacies of the
    verification and canvassing process.
       Disclosure also helps prevent certain types of petition
    fraud otherwise difficult to detect, such as outright forgery
    10                          DOE v. REED
    
                            Opinion of the Court
    
    and “bait and switch” fraud, in which an individual signs
    the petition based on a misrepresentation of the underly
    ing issue. See Brief for Respondent WFST 9–11, 53–54;
    cf. Brief for Massachusetts Gay and Lesbian Political
    Caucus et al. as Amici Curiae 18–22 (detailing “bait and
    switch” fraud in a petition drive in Massachusetts). The
    signer is in the best position to detect these types of
    fraud, and public disclosure can bring the issue to the
    signer’s attention.
       Public disclosure thus helps ensure that the only signa
    tures counted are those that should be, and that the only
    referenda placed on the ballot are those that garner
    enough valid signatures. Public disclosure also promotes
    transparency and accountability in the electoral process to
    an extent other measures cannot. In light of the foregoing,
    we reject plaintiffs’ argument and conclude that public
    disclosure of referendum petitions in general is substan
    tially related to the important interest of preserving the
    integrity of the electoral process.2
                                   C
      Plaintiffs’ more significant objection is that “the
    strength of the governmental interest” does not “reflect
    the seriousness of the actual burden on First Amendment
    rights.” Davis, 554 U. S., at ___ (slip op., at 18) (citing
    Buckley, 424 U. S., at 68, 71); see, e.g., Brief for Petitioners
    12–13, 30. According to plaintiffs, the objective of those
    seeking disclosure of the R–71 petition is not to prevent
    fraud, but to publicly identify those who had validly signed
    and to broadcast the signers’ political views on the subject
    of the petition. Plaintiffs allege, for example, that several
    ——————
      2 JUSTICE THOMAS’s contrary assessment of the relationship between
    
    the disclosure of referendum petitions generally and the State’s inter
    ests in this case is based on his determination that strict scrutiny
    applies, post, at 5 (dissenting opinion), rather than the standard of
    review that we have concluded is appropriate, see supra, at 7.
                      Cite as: 561 U. S. ____ (2010)            11
    
                          Opinion of the Court
    
    groups plan to post the petitions in searchable form on the
    Internet, and then encourage other citizens to seek out the
    R–71 signers. See App. 11; Brief for Petitioners 8, 46–47.
       Plaintiffs explain that once on the Internet, the petition
    signers’ names and addresses “can be combined with
    publicly available phone numbers and maps,” in what will
    effectively become a blueprint for harassment and intimi
    dation. Id., at 46. To support their claim that they will be
    subject to reprisals, plaintiffs cite examples from the
    history of a similar proposition in California, see, e.g., id.,
    at 2–6, 31–32, and from the experience of one of the peti
    tion sponsors in this case, see App. 9.
       In related contexts, we have explained that those
    resisting disclosure can prevail under the First Amend
    ment if they can show “a reasonable probability that the
    compelled disclosure [of personal information] will sub
    ject them to threats, harassment, or reprisals from ei
    ther Government officials or private parties.” Buckley,
    supra, at 74; see also Citizens United, 558 U. S., at ___
    (slip op., at 52). The question before us, however, is not
    whether PRA disclosure violates the First Amendment
    with respect to those who signed the R–71 petition, or
    other particularly controversial petitions. The question
    instead is whether such disclosure in general violates
    the First Amendment rights of those who sign referen
    dum petitions.
       The problem for plaintiffs is that their argument rests
    almost entirely on the specific harm they say would attend
    disclosure of the information on the R–71 petition, or on
    similarly controversial ones. See, e.g., Brief for Petitioners
    10, 26–29, 46, 56. But typical referendum petitions “con
    cern tax policy, revenue, budget, or other state law issues.”
    Brief for Respondent WFST 36 (listing referenda); see also
    App. 26 (stating that in recent years the State has re
    ceived PRA requests for petitions supporting initiatives
    concerning limiting motor vehicle charges; government
    12                       DOE v. REED
    
                          Opinion of the Court
    
    regulation of private property; energy resource use by
    certain electric utilities; long-term care services for the
    elderly and persons with disabilities; and state, county,
    and city revenue); id., at 26–27 (stating that in the past 20
    years, referendum measures that have qualified for the
    ballot in the State concerned land-use regulation; unem
    ployment insurance; charter public schools; and insurance
    coverage and benefits). Voters care about such issues,
    some quite deeply—but there is no reason to assume that
    any burdens imposed by disclosure of typical referendum
    petitions would be remotely like the burdens plaintiffs fear
    in this case.
      Plaintiffs have offered little in response. They have
    provided us scant evidence or argument beyond the bur
    dens they assert disclosure would impose on R–71 petition
    signers or the signers of other similarly controversial
    petitions. Indeed, what little plaintiffs do offer with
    respect to typical petitions in Washington hurts, not
    helps: Several other petitions in the State “have been
    subject to release in recent years,” plaintiffs tell us, Brief
    for Petitioners 50, but apparently that release has come
    without incident. Cf. Citizens United, supra, at ___ (slip
    op., at 55) (“Citizens United has been disclosing its donors
    for years and has identified no instance of harassment or
    retaliation”).
      Faced with the State’s unrebutted arguments that only
    modest burdens attend the disclosure of a typical petition,
    we must reject plaintiffs’ broad challenge to the PRA. In
    doing so, we note—as we have in other election law disclo
    sure cases—that upholding the law against a broad-based
    challenge does not foreclose a litigant’s success in a nar
    rower one. See Buckley, supra, at 74 (“minor parties” may
    be exempt from disclosure requirements if they can show
    “a reasonable probability that the compelled disclosure of
    a party’s contributors’ names will subject them to threats,
    harassment, or reprisals from either Government officials
                      Cite as: 561 U. S. ____ (2010)            13
    
                          Opinion of the Court
    
    or private parties”); Citizens United, supra, at ___ (slip op.,
    at 54) (disclosure “would be unconstitutional as applied to
    an organization if there were a reasonable probability that
    the group’s members would face threats, harassment, or
    reprisals if their names were disclosed” (citing McConnell
    v. Federal Election Comm’n, 
    540 U.S. 93
    , 198 (2003)). The
    secretary of state acknowledges that plaintiffs may press
    the narrower challenge in Count II of their complaint in
    proceedings pending before the District Court. Brief for
    Respondent Reed 17.
                           *    *     *
      We conclude that disclosure under the PRA would not
    violate the First Amendment with respect to referendum
    petitions in general and therefore affirm the judgment of
    the Court of Appeals.
                                               It is so ordered.
                     Cite as: 561 U. S. ____ (2010)           1
    
                        BREYER, J., concurring
    
    SUPREME COURT OF THE UNITED STATES
                             _________________
    
                              No. 09–559
                             _________________
    
    
      JOHN DOE #1, ET AL., PETITIONERS v. SAM REED, 
    
        WASHINGTON SECRETARY OF STATE, ET AL. 
    
     ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
    
                APPEALS FOR THE NINTH CIRCUIT
    
                            [June 24, 2010] 
    
    
      JUSTICE BREYER, concurring.
      In circumstances where, as here, “a law significantly
    implicates competing constitutionally protected interests
    in complex ways,” the Court balances interests. Nixon v.
    Shrink Missouri Government PAC, 
    528 U.S. 377
    , 402
    (2000) (BREYER, J., concurring). “And in practice that has
    meant asking whether the statute burdens any one such
    interest in a manner out of proportion to the statute’s
    salutary effects upon the others.” Ibid. As I read their
    opinions, this is what both the Court and JUSTICE
    STEVENS do. See ante, at 7 (opinion of the Court); post, at
    2 (STEVENS, J., concurring in part and concurring in
    judgment). And for the reasons stated in those opinions
    (as well as many of the reasons discussed by JUSTICE
    SOTOMAYOR), I would uphold the statute challenged in
    this case. With this understanding, I join the opinion of
    the Court and JUSTICE STEVENS’ opinion.
                     Cite as: 561 U. S. ____ (2010)           1
    
                         ALITO, J., concurring
    
    SUPREME COURT OF THE UNITED STATES
                             _________________
    
                              No. 09–559
                             _________________
    
    
      JOHN DOE #1, ET AL., PETITIONERS v. SAM REED, 
    
        WASHINGTON SECRETARY OF STATE, ET AL. 
    
     ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
    
                APPEALS FOR THE NINTH CIRCUIT
    
                            [June 24, 2010] 
    
    
       JUSTICE ALITO, concurring.
       The Court holds that the disclosure under the Washing
    ton Public Records Act (PRA), Wash. Rev. Code §42.56.001
    et seq. (2008), of the names and addresses of persons who
    sign referendum petitions does not as a general matter
    violate the First Amendment, ante, at 13, and I agree with
    that conclusion.      Many referendum petitions concern
    relatively uncontroversial matters, see ante, at 11–12, and
    plaintiffs have provided no reason to think that disclosure
    of signatory information in those contexts would signifi
    cantly chill the willingness of voters to sign. Plaintiffs’
    facial challenge therefore must fail. See ante, at 2, 5.
       Nonetheless, facially valid disclosure requirements can
    impose heavy burdens on First Amendment rights in
    individual cases. Acknowledging that reality, we have
    long held that speakers can obtain as-applied exemptions
    from disclosure requirements if they can show “a reason
    able probability that the compelled disclosure of [personal
    information] will subject them to threats, harassment, or
    reprisals from either Government officials or private
    parties.” Buckley v. Valeo, 
    424 U.S. 1
    , 74 (1976) (per
    curiam); see also Citizens United v. Federal Election
    Comm’n, 
    558 U.S.
    ___, ___ (2010) (slip op., at 52); McCon
    nell v. Federal Election Comm’n, 
    540 U.S. 93
    , 197–198
    (2003); Brown v. Socialist Workers ’74 Campaign Comm.
    2                       DOE v. REED
    
                         ALITO, J., concurring
    
    (Ohio), 
    459 U.S. 87
    , 93 (1982). Because compelled disclo
    sure can “burden the ability to speak,” Citizens United,
    supra, at ___ (slip op., at 51), and “seriously infringe on
    privacy of association and belief guaranteed by the First
    Amendment,” Buckley, supra, at 64, the as-applied exemp
    tion plays a critical role in safeguarding First Amendment
    rights.
                                    I
       The possibility of prevailing in an as-applied challenge
    provides adequate protection for First Amendment rights
    only if (1) speakers can obtain the exemption sufficiently
    far in advance to avoid chilling protected speech and (2)
    the showing necessary to obtain the exemption is not
    overly burdensome. With respect to the first requirement,
    the as-applied exemption becomes practically worthless if
    speakers cannot obtain the exemption quickly and well in
    advance of speaking. To avoid the possibility that a dis
    closure requirement might chill the willingness of voters
    to sign a referendum petition (and thus burden a circula
    tor’s ability to collect the necessary number of signatures,
    cf. Meyer v. Grant, 
    486 U.S. 414
    , 423 (1988)), voters must
    have some assurance at the time when they are presented
    with the petition that their names and identifying infor
    mation will not be released to the public. The only way a
    circulator can provide such assurance, however, is if the
    circulator has sought and obtained an as-applied exemp
    tion from the disclosure requirement well before circulat
    ing the petition. Otherwise, the best the circulator could
    do would be to tell voters that an exemption might be
    obtained at some point in the future. Such speculation
    would often be insufficient to alleviate voters’ concerns
    about the possibility of being subjected to threats, har
    assment, or reprisals. Cf. Citizens United, supra, at ___
    (slip op., at 5–6) (THOMAS, J., concurring in part and
    dissenting in part).
                      Cite as: 561 U. S. ____ (2010)             3
    
                          ALITO, J., concurring
    
       Additionally, speakers must be able to obtain an as
    applied exemption without clearing a high evidentiary
    hurdle. We acknowledged as much in Buckley, where we
    noted that “unduly strict requirements of proof could
    impose a heavy burden” on speech. 424 U. S., at 74.
    Recognizing that speakers “must be allowed sufficient
    flexibility in the proof of injury to assure a fair considera
    tion of their claim,” we emphasized that speakers “need
    show only a reasonable probability” that disclosure will
    lead to threats, harassment, or reprisals. Ibid. (emphasis
    added). We stated that speakers could rely on a wide
    array of evidence to meet that standard, including “spe
    cific evidence of past or present harassment of [group]
    members,” “harassment directed against the organization
    itself,” or a “pattern of threats or specific manifestations of
    public hostility.” Ibid. Significantly, we also made clear
    that “[n]ew [groups] that have no history upon which to
    draw may be able to offer evidence of reprisals and threats
    directed against individuals or organizations holding
    similar views.” Ibid. From its inception, therefore, the as
    applied exemption has not imposed onerous burdens of
    proof on speakers who fear that disclosure might lead to
    harassment or intimidation.
                                II
      In light of those principles, the plaintiffs in this case
    have a strong argument that the PRA violates the First
    Amendment as applied to the Referendum 71 petition.
                                 A
       Consider first the burdens on plaintiffs’ First Amend
    ment rights. The widespread harassment and intimida
    tion suffered by supporters of California’s Proposition 8
    provides strong support for an as-applied exemption in the
    present case. See Buckley, supra, at 74 (explaining that
    speakers seeking as-applied relief from a disclosure re
    4                       DOE v. REED
    
                         ALITO, J., concurring
    
    quirement can rely on “evidence of reprisals and threats
    directed against individuals or organizations holding
    similar views”). Proposition 8 amended the California
    Constitution to provide that “[o]nly marriage between a
    man and a woman is valid or recognized in California,”
    Cal. Const., Art. I, §7.5, and plaintiffs submitted to the
    District Court substantial evidence of the harassment
    suffered by Proposition 8 supporters, see Declaration of
    Scott F. Bieniek in No. C:09–5456 (WD Wash.), Exhs. 12,
    13. Members of this Court have also noted that harass
    ment. See Hollingsworth v. Perry, 
    558 U.S.
    ___, ___
    (2010) (per curiam) (slip op., at 2–3); Citizens United, 558
    U. S., at ___ (slip op., at 2–3) (opinion of THOMAS, J.).
    Indeed, if the evidence relating to Proposition 8 is not
    sufficient to obtain an as-applied exemption in this case,
    one may wonder whether that vehicle provides any mean
    ingful protection for the First Amendment rights of per
    sons who circulate and sign referendum and initiative
    petitions.
       What is more, when plaintiffs return to the District
    Court, they will have the opportunity to develop evidence
    of intimidation and harassment of Referendum 71 sup
    porters—an opportunity that was pretermitted because of
    the District Court’s decision to grant a preliminary injunc
    tion on count 1 of plaintiffs’ complaint. See 
    661 F. Supp. 2d
     1194, 1205–1206 (WD Wash. 2009); Tr. of Oral Arg. 40–
    41. For example, plaintiffs allege that the campaign
    manager for one of the plaintiff groups received threaten
    ing e-mails and phone calls, and that the threats were so
    severe that the manager filed a complaint with the local
    sheriff and had his children sleep in an interior room of
    his home. App. 9–10.
                               B
      The inadequacy of the State’s interests in compelling
    public disclosure of referendum signatory information
                     Cite as: 561 U. S. ____ (2010)            5
    
                         ALITO, J., concurring
    
    further confirms that courts should be generous in grant
    ing as-applied relief in this context. See Buckley, supra, at
    71 (recognizing that the weakness of the State’s interests
    in an individual case can require exempting speakers from
    compelled disclosure); Brown, 459 U. S., at 92–93 (same).
    As the Court notes, respondents rely on two interests to
    justify compelled disclosure in this context: (1) providing
    information to voters about who supports a referendum
    petition; and (2) preserving the integrity of the referen
    dum process by detecting fraudulent and mistaken signa
    tures. Ante, at 8.
                                  1
      In my view, respondents’ asserted informational interest
    will not in any case be sufficient to trump the First
    Amendment rights of signers and circulators who face a
    threat of harassment. Respondents maintain that publicly
    disclosing the names and addresses of referendum signa
    tories provides the voting public with “insight into
    whether support for holding a vote comes predominantly
    from particular interest groups, political or religious or
    ganizations, or other group[s] of citizens,” and thus allows
    voters to draw inferences about whether they should
    support or oppose the referendum. Brief for Respondent
    Washington Families Standing Together 58; see also Brief
    for Respondent Reed 46–48. Additionally, respondents
    argue that disclosure “allows Washington voters to engage
    in discussion of referred measures with persons whose
    acts secured the election and suspension of state law.” Id.,
    at 45; see also Brief for Respondent Washington Families
    Standing Together 58.
      The implications of accepting such an argument are
    breathtaking. Were we to accept respondents’ asserted
    informational interest, the State would be free to require
    petition signers to disclose all kinds of demographic infor
    mation, including the signer’s race, religion, political
    6                       DOE v. REED
    
                         ALITO, J., concurring
    
    affiliation, sexual orientation, ethnic background, and
    interest-group memberships. Requiring such disclosures,
    however, runs headfirst into a half century of our case
    law, which firmly establishes that individuals have a right
    to privacy of belief and association. See Rumsfeld v. Fo
    rum for Academic and Institutional Rights, Inc., 
    547 U.S. 47
    , 69 (2006); Brown, supra, at 91; Buckley, 424 U. S., at
    64; DeGregory v. Attorney General of N. H., 
    383 U.S. 825
    ,
    829 (1966); Gibson v. Florida Legislative Investigation
    Comm., 
    372 U.S. 539
    , 544 (1963); NAACP v. Alabama ex
    rel. Patterson, 
    357 U.S. 449
    , 462 (1958). Indeed, the
    State’s informational interest paints such a chilling pic
    ture of the role of government in our lives that at oral
    argument the Washington attorney general balked when
    confronted with the logical implications of accepting such
    an argument, conceding that the State could not require
    petition signers to disclose their religion or ethnicity. Tr.
    of Oral Arg. 37, 56.
       Respondents’ informational interest is no more legiti
    mate when viewed as a means of providing the public with
    information needed to locate and contact supporters of a
    referendum. In the name of pursuing such an interest, the
    State would be free to require petition signers to disclose
    any information that would more easily enable members
    of the voting public to contact them and engage them in
    discussion, including telephone numbers, e-mail ad
    dresses, and Internet aliases. Once again, permitting the
    government to require speakers to disclose such informa
    tion runs against the current of our associational privacy
    cases. But more important, when speakers are faced with
    a reasonable probability of harassment or intimidation,
    the State no longer has any interest in enabling the public
    to locate and contact supporters of a particular measure—
    for in that instance, disclosure becomes a means of facili
    tating harassment that impermissibly chills the exercise
    of First Amendment rights.
                     Cite as: 561 U. S. ____ (2010)           7
    
                         ALITO, J., concurring
    
      In this case, two groups proposed to place on the Inter
    net the names and addresses of all those who signed Ref
    erendum 71, and it is alleged that their express aim was to
    encourage “uncomfortable conversation[s].” 
    661 F. Supp. 2d
    , at 1199 (internal quotation marks omitted). If this
    information is posted on the Internet, then anyone with
    access to a computer could compile a wealth of information
    about all of those persons, including in many cases all of
    the following: the names of their spouses and neighbors,
    their telephone numbers, directions to their homes, pic
    tures of their homes, information about their homes (such
    as size, type of construction, purchase price, and mortgage
    amount), information about any motor vehicles that they
    own, any court case in which they were parties, any in
    formation posted on a social networking site, and newspa
    per articles in which their names appeared (including such
    things as wedding announcements, obituaries, and articles
    in local papers about their children’s school and athletic
    activities). The potential that such information could be
    used for harassment is vast.
                                  2
      Respondents also maintain that the State has an inter
    est in preserving the integrity of the referendum process
    and that public disclosure furthers that interest by help
    ing the State detect fraudulent and mistaken signatures.
    I agree with the Court that preserving the integrity of the
    referendum process constitutes a sufficiently important
    state interest. Ante, at 8. But I harbor serious doubts as
    to whether public disclosure of signatory information
    serves that interest in a way that always “reflect[s] the
    seriousness of the actual burden on First Amendment
    rights.” Davis v. Federal Election Comm’n, 
    554 U.S.
    ___,
    ___ (2008) (slip op., at 18).
      First, the realities of Washington law undermine the
    State’s argument that public disclosure is necessary to
    8                        DOE v. REED
    
                          ALITO, J., concurring
    
    ensure the integrity of the referendum process. The State
    of Washington first authorized voter initiatives via consti
    tutional amendment in 1912, and the following year the
    Washington Legislature passed a statute specifying the
    particulars of the referendum process. See State ex rel.
    Case v. Superior Ct. for Thurston Cty., 
    81 Wash. 623
    , 628,
    
    143 P. 461
    , 462 (1914). Significantly, Washington’s laws
    pertaining to initiatives and referenda did not then and do
    not now authorize the public disclosure of signatory in
    formation. See Wash. Rev. Code §29A.72.010 et seq.; 1913
    Wash. Laws. pp. 418–437. Instead, the public disclosure
    requirement stems from the PRA, which was enacted in
    1972 and which requires the public disclosure of state
    documents generally, not referendum documents specifi
    cally. See Wash. Rev. Code §42.56.001 et seq. Indeed, if
    anything, Washington’s referenda and initiative laws
    suggest that signatory information should remain confi
    dential: Outside observers are permitted to observe the
    secretary of state’s verification and canvassing process
    only “so long as they make no record of the names, ad
    dresses, or other information on the petitions or related
    records during the verification process,” §29A.72.230, and
    the State is required to destroy all those petitions that fail
    to qualify for the ballot, §29A.72.200.
       Second, the State fails to come to grips with the fact
    that public disclosure of referendum signatory information
    is a relatively recent practice in Washington. Prior to the
    adoption of the PRA in 1972, the Washington attorney
    general took the view that referendum petitions were not
    subject to public disclosure. See Op. Wash. Atty. Gen. 55–
    57 No. 274, pp. 1–2 (May 28, 1956), online at
    http://www.atg.wa.gov/AGOOpinions/opinion.aspx?section
    =topic&id=10488 (all Internet materials as visited June
    17, 2010, and available in Clerk of Court’s case file) (de
    claring that public disclosure of initiative petitions would
    be “contrary to public policy” and would run contrary to “a
                     Cite as: 561 U. S. ____ (2010)           9
    
                         ALITO, J., concurring
    
    tendency on the part of the legislature to regard the sign
    ing of an initiative petition as a matter concerning only
    the individual signers except in so far as necessary to
    safeguard against abuses of the privilege”). Indeed, the
    secretary of state represents on his Web site that even
    after the PRA was enacted, “various Secretary of State
    administrations took the position, from 1973 to 1998, that
    the personal information on petition sheets were NOT
    subject to disclosure.” B. Zylstra, The Disclosure History
    of Petition Sheets (Sept. 17, 2009), online at
    http://blogs.sos.wa.gov/FromOurCorner/index.php/2009/09/
    the-disclosure-history-of-petition-sheets/.    Although the
    secretary of state apparently changed this policy in the
    late 1990’s, it appears that the secretary did not release
    any initiative petitions until 2006. Ibid. And to date, the
    secretary has released only a handful of petitions. Ibid.;
    App. 26. That history substantially undermines the
    State’s assertion that public disclosure is necessary to
    ensure the integrity of the referendum process. For nearly
    a century, Washington’s referendum process operated—
    and apparently operated successfully—without the public
    disclosure of signatory information. The State has failed
    to explain how circumstances have changed so dramati
    cally in recent years that public disclosure is now
    required.
      Third, the experiences of other States demonstrates that
    publicly disclosing the names and identifying information
    of referendum signatories is not necessary to protect
    against fraud and mistake. To give but one example,
    California has had more initiatives on the ballot than any
    other State save Oregon. See Initiative and Referendum
    Institute, Initiative Use, p. 1 (Feb. 2009), online at
    http://www.iandrinstitute.org/IRI%20Initiative%20Use%2
    0%281904=2008%29.pdf.         Nonetheless, California law
    explicitly protects the privacy of initiative and referendum
    signatories. See Cal. Elec. Code Ann. §18650 (West 2003);
    10                      DOE v. REED
    
                         ALITO, J., concurring
    
    Cal. Govt. Code Ann. §6253.5 (West 2008). It is thus
    entirely possible for a State to keep signatory information
    private and maintain a referendum and initiative process
    free from fraud.
       Finally, Washington could easily and cheaply employ
    alternative mechanisms for protecting against fraud and
    mistake that would be far more protective of circulators’
    and signers’ First Amendment rights. For example, the
    Washington attorney general represented to us at oral
    argument that “the Secretary of State’s first step after
    receiving submitted petitions is to take them to his archiv
    ing section and to have them digitized.” Tr. of Oral Arg.
    30. With a digitized list, it should be relatively easy for
    the secretary to check for duplicate signatures on a refer
    endum petition. And given that the secretary maintains a
    “centralized, uniform, interactive computerized statewide
    voter registration list that contains the name and registra
    tion information of every registered voter in the state,”
    Wash. Rev. Code Ann. §29A.08.125(1) (West Supp. 2010),
    the secretary could use a computer program to cross-check
    the names and addresses on the petition with the names
    and addresses on the voter registration roles, thus ensur
    ing the accuracy and legitimacy of each signature.
       Additionally, using the digitized version of the referen
    dum petition, the State could set up a simple system for
    Washington citizens to check whether their names have
    been fraudulently signed to a petition. For example, on
    his Web site, the secretary maintains an interface that
    allows voters to confirm their voter registration informa
    tion simply by inputting their name and date of birth. See
    http://wei.secstate.wa.gov/osos/VoterVault/Pages/MyVote.a
    spx. Presumably the secretary could set up a similar
    interface for referendum petitions. Indeed, the process
    would seem to be all the more simple given that Washing
    ton requires a “unique identifier [to] be assigned to each
    registered voter in the state.” §29A.08.125(4).
                     Cite as: 561 U. S. ____ (2010) 
            11
    
                         ALITO, J., concurring
    
    
                             *     *   * 
    
      As-applied challenges to disclosure requirements play a
    critical role in protecting First Amendment freedoms. To
    give speech the breathing room it needs to flourish,
    prompt judicial remedies must be available well before the
    relevant speech occurs and the burden of proof must be
    low. In this case—both through analogy and through their
    own experiences—plaintiffs have a strong case that they
    are entitled to as-applied relief, and they will be able to
    pursue such relief before the District Court.
                     Cite as: 561 U. S. ____ (2010)            1
    
                       SOTOMAYOR, J., concurring
    
    SUPREME COURT OF THE UNITED STATES
                             _________________
    
                              No. 09–559
                             _________________
    
    
      JOHN DOE #1, ET AL., PETITIONERS v. SAM REED, 
    
        WASHINGTON SECRETARY OF STATE, ET AL. 
    
     ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
    
                APPEALS FOR THE NINTH CIRCUIT
    
                            [June 24, 2010] 
    
    
      JUSTICE SOTOMAYOR, with whom JUSTICE STEVENS and
    JUSTICE GINSBURG join, concurring.
      I write separately to emphasize a point implicit in the
    opinion of the Court and the concurring opinions of
    JUSTICE STEVENS, JUSTICE SCALIA, and JUSTICE BREYER:
    In assessing the countervailing interests at stake in this
    case, we must be mindful of the character of initiatives
    and referenda. These mechanisms of direct democracy are
    not compelled by the Federal Constitution. It is instead
    up to the people of each State, acting in their sovereign
    capacity, to decide whether and how to permit legislation
    by popular action. States enjoy “considerable leeway” to
    choose the subjects that are eligible for placement on the
    ballot and to specify the requirements for obtaining ballot
    access (e.g., the number of signatures required, the time
    for submission, and the method of verification). Buckley v.
    American Constitutional Law Foundation, Inc., 
    525 U.S. 182
    , 191 (1999). As the Court properly recognizes, each of
    these structural decisions “inevitably affects—at least to
    some degree—the individual’s right” to speak about politi
    cal issues and “to associate with others for political ends.”
    Anderson v. Celebrezze, 
    460 U.S. 780
    , 788 (1983). For
    instance, requiring petition signers to be registered voters
    or to use their real names no doubt limits the ability or
    willingness of some individuals to undertake the expres
    2                       DOE v. REED
    
                       SOTOMAYOR, J., concurring
    
    sive act of signing a petition. Regulations of this nature,
    however, stand “a step removed from the communicative
    aspect of petitioning,” and the ability of States to impose
    them can scarcely be doubted. Buckley, 525 U. S., at 215
    (O’Connor, J., concurring in judgment in part and dissent
    ing in part); see also McIntyre v. Ohio Elections Comm’n,
    
    514 U.S. 334
    , 345 (1995) (contrasting measures to “control
    the mechanics of the electoral process” with the “regula
    tion of pure speech”). It is by no means necessary for a
    State to prove that such “reasonable, nondiscriminatory
    restrictions” are narrowly tailored to its interests. Ander
    son, 460 U. S., at 788.
       The Court today confirms that the State of Washington’s
    decision to make referendum petition signatures available
    for public inspection falls squarely within the realm of
    permissible election-related regulations. Cf. Buckley, 525
    U. S., at 200 (describing a state law requiring petition
    circulators to submit affidavits containing their names
    and addresses as “exemplif[ying] the type of regulation”
    that States may adopt). Public disclosure of the identity of
    petition signers, which is the rule in the overwhelming
    majority of States that use initiatives and referenda,
    advances States’ vital interests in “[p]reserving the integ
    rity of the electoral process, preventing corruption, and
    sustaining the active, alert responsibility of the individual
    citizen in a democracy for the wise conduct of govern
    ment.” First Nat. Bank of Boston v. Bellotti, 
    435 U.S. 765
    ,
    788–789 (1978) (internal quotation marks and alterations
    omitted); see also Citizens United v. Federal Election
    Comm’n, 
    558 U.S.
    ___, ___ (2010) (slip op., at 55)
    (“[T]ransparency enables the electorate to make informed
    decisions and give proper weight to different speakers and
    messages”); Brief for Respondent Washington Families
    Standing Together 34 (reporting that only one State ex
    empts initiative and referendum petitions from public
    disclosure). In a society “in which the citizenry is the final
                     Cite as: 561 U. S. ____ (2010)            3
    
                       SOTOMAYOR, J., concurring
    
    judge of the proper conduct of public business,” openness
    in the democratic process is of “critical importance.” Cox
    Broadcasting Corp. v. Cohn, 
    420 U.S. 469
    , 495 (1975); see
    also post, at 4 (SCALIA, J., concurring in judgment) (noting
    that “[t]he public nature of federal lawmaking is constitu
    tionally required”).
       On the other side of the ledger, I view the burden of
    public disclosure on speech and associational rights as
    minimal in this context. As this Court has observed with
    respect to campaign-finance regulations, “disclosure re
    quirements . . . ‘do not prevent anyone from speaking.’ ”
    Citizens United, 558 U. S., at ___ (slip op., at 51). When it
    comes to initiatives and referenda, the impact of public
    disclosure on expressive interests is even more attenuated.
    While campaign-finance disclosure injects the government
    into what would otherwise have been private political
    activity, the process of legislating by referendum is inher
    ently public. To qualify a referendum for the ballot, citi
    zens are required to sign a petition and supply identifying
    information to the State. The act of signing typically
    occurs in public, and the circulators who collect and sub
    mit signatures ordinarily owe signers no guarantee of
    confidentiality. For persons with the “civic courage” to
    participate in this process, post, at 10 (opinion of SCALIA,
    J.), the State’s decision to make accessible what they
    voluntarily place in the public sphere should not deter
    them from engaging in the expressive act of petition sign
    ing. Disclosure of the identity of petition signers, more
    over, in no way directly impairs the ability of anyone to
    speak and associate for political ends either publicly or
    privately.
       Given the relative weight of the interests at stake and
    the traditionally public nature of initiative and referen
    dum processes, the Court rightly rejects petitioners’ con
    stitutional challenge to the State of Washington’s petition
    disclosure regulations. These same considerations also
    4                       DOE v. REED
    
                      SOTOMAYOR, J., concurring
    
    mean that any party attempting to challenge particular
    applications of the State’s regulations will bear a heavy
    burden. Even when a referendum involves a particularly
    controversial subject and some petition signers fear har
    assment from nonstate actors, a State’s important inter
    ests in “protect[ing] the integrity and reliability of the
    initiative process” remain undiminished, and the State
    retains significant discretion in advancing those interests.
    Buckley, 525 U. S., at 191. Likewise, because the expres
    sive interests implicated by the act of petition signing are
    always modest, I find it difficult to see how any incre
    mental disincentive to sign a petition would tip the consti
    tutional balance. Case-specific relief may be available
    when a State selectively applies a facially neutral petition
    disclosure rule in a manner that discriminates based on
    the content of referenda or the viewpoint of petition sign
    ers, or in the rare circumstance in which disclosure poses
    a reasonable probability of serious and widespread har
    assment that the State is unwilling or unable to control.
    Cf. NAACP v. Alabama ex rel. Patterson, 
    357 U.S. 449
    (1958). Allowing case-specific invalidation under a more
    forgiving standard would unduly diminish the substantial
    breathing room States are afforded to adopt and imple
    ment reasonable, nondiscriminatory measures like the
    disclosure requirement now at issue. Accordingly, courts
    presented with an as-applied challenge to a regulation
    authorizing the disclosure of referendum petitions should
    be deeply skeptical of any assertion that the Constitution,
    which embraces political transparency, compels States to
    conceal the identity of persons who seek to participate in
    lawmaking through a state-created referendum process.
    With this understanding, I join the opinion of the Court.
                      Cite as: 561 U. S. ____ (2010)            1
    
                         Opinion of STEVENS, J.
    
    SUPREME COURT OF THE UNITED STATES
                              _________________
    
                               No. 09–559
                              _________________
    
    
      JOHN DOE #1, ET AL., PETITIONERS v. SAM REED, 
    
        WASHINGTON SECRETARY OF STATE, ET AL. 
    
     ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
    
                APPEALS FOR THE NINTH CIRCUIT
    
                             [June 24, 2010] 
    
    
       JUSTICE STEVENS, with whom JUSTICE BREYER joins,
    concurring in part and concurring in the judgment.
       This is not a hard case. It is not about a restriction on
    voting or on speech and does not involve a classic disclo
    sure requirement. Rather, the case concerns a neutral,
    nondiscriminatory policy of disclosing information already
    in the State’s possession that, it has been alleged, might
    one day indirectly burden petition signatories. The bur
    den imposed by Washington’s application of the Public
    Records Act (PRA) to referendum petitions in the vast
    majority, if not all, its applications is not substantial. And
    the State has given a more than adequate justification for
    its choice.
       For a number of reasons, the application of the PRA to
    referendum petitions does not substantially burden any
    individual’s expression. First, it is not “a regulation of
    pure speech.” McIntyre v. Ohio Elections Comm’n, 
    514 U.S. 334
    , 345 (1995); cf. United States v. O’Brien, 
    391 U.S. 367
    , 377 (1968). It does not prohibit expression, nor
    does it require that any person signing a petition disclose
    or say anything at all. See McIntyre, 
    514 U.S. 334
    . Nor
    does the State’s disclosure alter the content of a speaker’s
    message. See id., at 342–343.
       Second, any effect on speech that disclosure might have
    is minimal. The PRA does not necessarily make it more
    2                             DOE v. REED
    
                             Opinion of STEVENS, J.
    
    difficult to circulate or obtain signatures on a petition, see
    Buckley v. American Constitutional Law Foundation, Inc.,
    
    525 U.S. 182
    , 193–196 (1999); Meyer v. Grant, 
    486 U.S. 414
    , 422–423 (1988), or to communicate one’s views gen
    erally. Regardless of whether someone signs a referendum
    petition, that person remains free to say anything to any
    one at any time. If disclosure indirectly burdens a
    speaker, “the amount of speech covered” is small—only a
    single, narrow message conveying one fact in one place,
    Watchtower Bible & Tract Soc. of N. Y., Inc. v. Village of
    Stratton, 
    536 U.S. 150
    , 165 (2002); cf. Cox v. New Hamp
    shire, 
    312 U.S. 569
     (1941). And while the democratic act
    of casting a ballot or signing a petition does serve an
    expressive purpose, the act does not involve any “interac
    tive communication,” Meyer, 486 U. S., at 422, and is “not
    principally” a method of “individual expression of political
    sentiment,” Timmons v. Twin Cities Area New Party, 
    520 U.S. 351
    , 373 (1997) (STEVENS, J., dissenting); cf. O’Brien,
    391 U. S., at 377.1
       Weighed against the possible burden on constitutional
    rights are the State’s justifications for its rule. In this
    case, the State has posited a perfectly adequate justifica
    tion: an interest in deterring and detecting petition fraud.2
    Given the pedigree of this interest and of similar regula
    tions, the State need not produce concrete evidence that
    the PRA is the best way to prevent fraud. See Crawford v.
    ——————
        1 Although a “petition” is a classic means of political expression, the
    type of petition at issue in this case is not merely a document on which
    people are expressing their views but rather is a state-created forum with
    a particular function: sorting those issues that have enough public
    support to warrant limited space on a referendum ballot. Cf. Widmar v.
    Vincent, 
    454 U.S. 263
    , 278 (1981) (STEVENS, J., concurring in judgment).
      2 Washington also points out that its disclosure policy informs voters
    
    about who supports the particular referendum. In certain election-law
    contexts, this informational rationale (among others) may provide a
    basis for regulation; in this case, there is no need to look beyond the
    State’s quite obvious antifraud interest.
                          Cite as: 561 U. S. ____ (2010)                      3
    
                              Opinion of STEVENS, J.
    
    Marion County Election Bd., 
    553 U.S. 181
    , 191–200
    (2008) (opinion of STEVENS, J.) (discussing voting fraud);
    Nixon v. Shrink Missouri Government PAC, 
    528 U.S. 377
    ,
    391 (2000) (“The quantum of empirical evidence needed to
    satisfy heightened judicial scrutiny of legislative judg
    ments will vary up or down with the novelty and plausibil
    ity of the justification raised”); see also Timmons, 520
    U. S., at 375 (STEVENS, J., dissenting) (rejecting “imagina
    tive [and] theoretical” justification supported only by “bare
    assertion”).3 And there is more than enough evidence to
    support the State’s election-integrity justification. See
    ante, at 8–10 (opinion of the Court).
        There remains the issue of petitioners’ as-applied chal
    lenge. As a matter of law, the Court is correct to keep
    open the possibility that in particular instances in which a
    policy such as the PRA burdens expression “by the public
    enmity attending publicity,” Brown v. Socialist Workers
    ’74 Campaign Comm. (Ohio), 
    459 U.S. 87
    , 98 (1982),
    speakers may have a winning constitutional claim.
    “ ‘[F]rom time to time throughout history,’ ” persecuted
    groups have been able “ ‘to criticize oppressive practices
    ——————
       3 There is no reason to think that our ordinary presumption that the
    
    political branches are better suited than courts to weigh a policy’s
    benefits and burdens is inapplicable in this case. The degree to which
    we defer to a judgment by the political branches must vary up and
    down with the degree to which that judgment reflects considered,
    public-minded decisionmaking. Thus, when a law appears to have been
    adopted without reasoned consideration, see, e.g., Salazar v. Buono,
    
    559 U.S.
    ___, ___–___ (2010) (STEVENS, J., dissenting) (slip op., at 22–
    23), for discriminatory purposes, see, e.g., Bates v. Little Rock, 
    361 U.S. 516
    , 517–518, 524–525 (1960), or to entrench political majorities, see,
    e.g., Vieth v. Jubelirer, 
    541 U.S. 267
    , 317–319, 324–326, 332–333
    (2004) (STEVENS, J., dissenting), we are less willing to defer to the
    institutional strengths of the legislature. That one may call into
    question the process used to create a law is not a reason to “disregar[d]”
    “sufficiently strong,” “valid[,] neutral justifications” for an otherwise
    “nondiscriminatory” policy. Crawford, 553 U. S., at 204. But it is a
    reason to examine more carefully the justifications for that measure.
    4                            DOE v. REED
    
                             Opinion of STEVENS, J.
    
    and laws either anonymously or not at all.’ ” McIntyre, 514
    U. S., at 342.4
       In my view, this is unlikely to occur in cases involving
    the PRA. Any burden on speech that petitioners posit is
    speculative as well as indirect. For an as-applied chal
    lenge to a law such as the PRA to succeed, there would
    have to be a significant threat of harassment directed at
    those who sign the petition that cannot be mitigated by
    law enforcement measures.5 Moreover, the character of
    the law challenged in a referendum does not, in itself,
    affect the analysis. Debates about tax policy and regula
    tion of private property can become just as heated as
    debates about domestic partnerships. And as a general
    matter, it is very difficult to show that by later disclosing
    the names of petition signatories, individuals will be less
    willing to sign petitions. Just as we have in the past, I
    would demand strong evidence before concluding that an
    indirect and speculative chain of events imposes a sub
    
    
    ——————
       4 JUSTICE SCALIA conceives of the issue as a right to anonymous
    
    speech. See, e.g., post, at 1 (opinion concurring in judgment). But our
    decision in McIntyre posited no such freewheeling right. The Constitu
    tion protects “freedom of speech.” Amdt. 1; see also McIntyre, 514 U. S.,
    at 336 (“The question presented is whether [a] . . . statute that prohib
    its the distribution of anonymous campaign literature is a ‘law . . .
    abridging the freedom of speech’ within the meaning of the First
    Amendment”). That freedom can be burdened by a law that exposes
    the speaker to fines, as much as it can be burdened by a law that
    exposes a speaker to harassment, changes the content of his speech, or
    prejudices others against his message. See id., at 342. The right,
    however, is the right to speak, not the right to speak without being
    fined or the right to speak anonymously.
       5 A rare case may also arise in which the level of threat to any indi
    
    vidual is not quite so high but a State’s disclosure would substantially
    limit a group’s ability to “garner the number of signatures necessary to
    place [a] matter on the ballot,” thereby “limiting [its] ability to make
    the matter the focus of statewide discussion.” Meyer v. Grant, 
    486 U.S. 414
    , 423 (1988).
                         Cite as: 561 U. S. ____ (2010)                    5
    
                             Opinion of STEVENS, J.
    
    stantial burden on speech.6 A statute “is not to be upset
    upon hypothetical and unreal possibilities, if it would be
    good upon the facts as they are.” Pullman Co. v. Knott,
    
    235 U.S. 23
    , 26 (1914).
                            *    *     *
      Accordingly, I concur with the opinion of the Court to
    the extent that it is not inconsistent with my own, and I
    concur in the judgment.
    
    
    
    
    ——————
      6 See, e.g., Bates v. Little Rock, 361 U. S., at 521–522, 523–524; Buck
    
    ley v. Valeo, 
    424 U.S. 1
    , 69–72 (1976) (per curiam); Brown v. Socialist
    Workers ’74 Campaign Comm. (Ohio), 
    459 U.S. 87
    , 98–101 (1982);
    Buckley v. American Constitutional Law Foundation, Inc., 
    525 U.S. 182
    , 197–198 (1999).
                     Cite as: 561 U. S. ____ (2010)            1
    
                   SCALIA, J., concurring in judgment
    
    SUPREME COURT OF THE UNITED STATES
                             _________________
    
                              No. 09–559
                             _________________
    
    
      JOHN DOE #1, ET AL., PETITIONERS v. SAM REED, 
    
        WASHINGTON SECRETARY OF STATE, ET AL. 
    
     ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
    
                APPEALS FOR THE NINTH CIRCUIT
    
                            [June 24, 2010] 
    
    
      JUSTICE SCALIA, concurring in the judgment.
      Plaintiffs claim the First Amendment, as applied to the
    States through the Fourteenth Amendment, forbids the
    State of Washington to release to the public signed refer
    endum petitions, which they submitted to the State in
    order to suspend operation of a law and put it to a popular
    vote. I doubt whether signing a petition that has the
    effect of suspending a law fits within “the freedom of
    speech” at all. But even if, as the Court concludes, ante, at
    5, it does, a long history of practice shows that the First
    Amendment does not prohibit public disclosure.
                                 I
      We should not repeat and extend the mistake of McIn
    tyre v. Ohio Elections Comm’n, 
    514 U.S. 334
     (1995).
    There, with neither textual support nor precedents requir
    ing the result, the Court invalidated a form of election
    regulation that had been widely used by the States since
    the end of the 19th century. Id., at 371 (SCALIA, J., dis
    senting). The Court held that an Ohio statute prohibiting
    the distribution of anonymous campaign literature vio
    lated the First and Fourteenth Amendments.
      Mrs. McIntyre sought a general right to “speak” anony
    mously about a referendum. Here, plaintiffs go one step
    further—they seek a general right to participate anony
    2                            DOE v. REED
    
                       SCALIA, J., concurring in judgment
    
    mously in the referendum itself.1 Referendum petitions
    are subject to public disclosure under the Public Records
    Act (PRA), Wash. Rev. Code §42.56.001 et seq., which
    requires government agencies to “make available for
    public inspection and copying all public records,” subject to
    certain exemptions not relevant here.           §42.56.070(1)
    (2008). Plaintiffs contend that disclosure of the names,
    and other personal information included on the petitions,
    of those who took this legislative action violates their First
    Amendment right to anonymity.
       Today’s opinion acknowledges such a right, finding that
    it can be denied here only because of the State’s interest in
    “preserving the integrity of the electoral process,” ante, at
    8. In my view this is not a matter for judicial interest
    balancing. Our Nation’s longstanding traditions of legis
    lating and voting in public refute the claim that the First
    Amendment accords a right to anonymity in the perform
    ance of an act with governmental effect. “A governmental
    practice that has become general throughout the United
    ——————
      1 Plaintiffs seem to disavow reliance on McIntyre v. Ohio Elections
    
    Comm’n, 
    514 U.S. 334
     (1995), see Reply Brief for Petitioners 12.
    Certainly, there are differences between McIntyre and this case. Mrs.
    McIntyre was required to disclose her identity herself, by placing her
    name on her handbill. Here, plaintiffs do not object to signing their
    names to the referendum petition, where it can presumably be observed
    by later signers; they challenge only the later disclosure of that infor
    mation by the State. But both cases are about public disclosure, and
    both involve a claim to anonymity under the First Amendment. If
    anything, the line plaintiffs seek to draw—which seeks a sort of partial
    anonymity—is stranger still.
      JUSTICE STEVENS quibbles with the shorthand I use, and tries to rein
    in McIntyre’s holding, by saying that it did not create a “right to speak
    anonymously,” ante, at 4, n. 4 (opinion concurring in part and concur
    ring in judgment). But McIntyre used the same shorthand. See 514
    U. S., at 357 (“[t]he right to remain anonymous”); id., at 342 (“[t]he
    freedom to publish anonymously”); see also ibid. (“an author’s decision
    to remain anonymous . . . is an aspect of the freedom of speech pro
    tected by the First Amendment”).
                        Cite as: 561 U. S. ____ (2010)                   3
    
                      SCALIA, J., concurring in judgment
    
    States, and particularly one that has the validation of
    long, accepted usage, bears a strong presumption of con-
    stitutionality.” McIntyre, supra, at 375 (SCALIA, J.,
    dissenting).
                                  A
      When a Washington voter signs a referendum petition
    subject to the PRA, he is acting as a legislator. The Wash
    ington Constitution vests “[t]he legislative authority” of
    the State in the legislature, but “the people reserve to
    themselves the power . . . to approve or reject at the polls
    any act, item, section, or part of any bill, act, or law passed
    by the legislature.” Art. 2, §1. This “referendum” power of
    popular legislation is exercised by submitting a petition, in
    accordance with certain specifications, to the Washington
    secretary of state with valid signatures of registered vot
    ers in number equal to or exceeding four percent of the
    votes cast in the last gubernatorial election. §1(b); Wash.
    Rev. Code §29A.72.100, 130, 140, 150, 160 (2008).
      The filing of a referendum petition that satisfies these
    requirements has two legal effects: (1) It requires the
    secretary to place the measure referred to the people on
    the ballot at the next general election; and (2) it suspends
    operation of the measure, causing it only to have effect 30
    days after it is approved during that election. Art. 2,
    §1(d). See Brief for Respondent Sam Reed, Secretary of
    State of Washington 2–6. A voter who signs a referendum
    petition is therefore exercising legislative power because
    his signature, somewhat like a vote for or against a bill in
    the legislature, seeks to affect the legal force of the meas
    ure at issue.2
    ——————
      2 The Court notes that “only some petition signing has legal effect.”
    
    Ante, at 8, n. 1. That is true. Some petitions may never be submitted
    to the secretary; they are irrelevant here, since they will never be
    subject to the PRA. But some petitions that are submitted to the
    secretary may lack the requisite number of signatures. Even as to
    4                             DOE v. REED
    
                       SCALIA, J., concurring in judgment
    
      Plaintiffs point to no precedent from this Court holding
    that legislating is protected by the First Amendment.3
    Nor do they identify historical evidence demonstrating
    that “the freedom of speech” the First Amendment codified
    encompassed a right to legislate without public disclosure.
    This should come as no surprise; the exercise of lawmak
    ing power in the United States has traditionally been
    public.
      The public nature of federal lawmaking is constitution
    ally required. Article I, §5, cl. 3 requires Congress to
    legislate in public: “Each House shall keep a Journal of its
    Proceedings, and from time to time publish the same,
    excepting such Parts as may in their Judgment require
    Secrecy; and the Yeas and Nays of the Members of either
    House on any question shall, at the Desire of one fifth of
    those Present, be entered on the Journal.”4 State constitu
    ——————
    those, the petition signer has exercised his portion of the legislative
    power when he signs the petition, much like a legislator who casts a
    losing vote.
      3 The Court quotes Republican Party of Minn. v. White, 
    536 U.S. 765
    ,
    
    788 (2002), which stated that a State “having ‘cho[sen] to tap the
    energy and the legitimizing power of the democratic process, . . . must
    accord the participants in that process the First Amendment rights
    that attach to their roles.’ ” Ante, at 6. That is correct, but it is not on
    point. White involved a prohibition on speaking as a condition of
    running for judicial office. I do not suggest that a State could require
    legislators (or the citizen-legislators who participate in a referendum)
    to give up First Amendment rights unconnected with their act of
    legislating. The electioneering disclosure cases the Court cites, ante, at
    7, are likewise not on point, since they involve disclosure requirements
    applied to political speech, not legislative action.
      4 The exception for “such Parts as may in their Judgment require
    
    Secrecy” was assuredly not designed to permit anonymous voting. It
    refers to details whose disclosure would threaten an important national
    interest. The similar clause in the Articles of Confederation created an
    exception to the journal requirement for parts of the proceedings
    “relating to treaties, alliances or military operations, as in [Congress’s]
    judgment require secresy.” Art. IX. The Constitution’s requirement is
    broader, but its object is obviously the same.
                     Cite as: 561 U. S. ____ (2010)           5
    
                   SCALIA, J., concurring in judgment
    
    tions enacted around the time of the founding had similar
    provisions. See, e.g., Ky. Const., Art. I, §20 (1792); Ga.
    Const., Art. I, §15 (1798). The desirability of public ac
    countability was obvious. “[A]s to the votes of representa
    tives and senators in Congress, no man has yet been bold
    enough to vindicate a secret or ballot vote, as either more
    safe or more wise, more promotive of independence in the
    members, or more beneficial to their constituents.” 1 J.
    Story, Commentaries on the Constitution §841, p. 591
    (4th ed. 1873).
       Moreover, even when the people asked Congress for
    legislative changes—by exercising their constitutional
    right “to petition the Government for a redress of griev
    ances,” U. S. Const., Amdt. 1—they did so publicly. The
    petition was read aloud in Congress. Mazzone, Freedom’s
    Associations, 
    77 Wash. L
    . Rev. 639, 726 (2002). The peti
    tioner’s name (when large groups were not involved), his
    request, and what action Congress had taken on the peti
    tion were consistently recorded in the House and Senate
    Journals. See, e.g., Journal of the Senate, June 18, 1790,
    1st Cong., 1st Sess., 163; Journal of the House of Repre
    sentatives, Nov. 24, 1820, 16th Cong., 2d Sess., 32. Even
    when the people exercised legislative power directly, they
    did so not anonymously, but openly in town hall meetings.
    See generally J. Zimmerman, The New England Town
    Meeting (1999).
       Petitioning the government and participating in the
    traditional town meeting were precursors of the modern
    initiative and referendum. Those innovations were mod
    eled after similar devices used by the Swiss democracy in
    the 1800’s, and were first used in the United States by
    South Dakota in 1898. See S. Piott, Giving Voters a Voice
    1–3, 16 (2003). The most influential advocate of the initia
    tive and referendum in the United States analogized the
    Swiss practice to the town meeting, because both “re
    quired open conduct of political affairs and free expression
    6                       DOE v. REED
    
                   SCALIA, J., concurring in judgment
    
    of opinions.” Id., at 5 (discussing J. W. Sullivan, Direct
    Legislation by the Citizenship through the Initiative and
    Referendum (1892)). Plaintiffs’ argument implies that the
    public nature of these practices, so longstanding and
    unquestioned, violated the freedom of speech. There is no
    historical support for such a claim.
                                B
      Legislating was not the only governmental act that was
    public in America. Voting was public until 1888 when the
    States began to adopt the Australian secret ballot. See
    Burson v. Freeman, 
    504 U.S. 191
    , 203 (1992) (plurality
    opinion). We have acknowledged the existence of a First
    Amendment interest in voting, see, e.g., Burdick v. Taku
    shi, 
    504 U.S. 428
     (1992), but we have never said that it
    includes the right to vote anonymously. The history of
    voting in the United States completely undermines that
    claim.
      Initially, the Colonies mostly continued the English
    traditions of voting by a show of hands or by voice—viva
    voce voting. Burson, supra, at 200; E. Evans, A History of
    the Australian Ballot System in the United States 1–6
    (1917) (Evans). One scholar described the viva voce sys
    tem as follows:
        “ ‘The election judges, who were magistrates, sat upon
        a bench with their clerks before them. Where practi
        cable, it was customary for the candidates to be pre
        sent in person, and to occupy a seat at the side of the
        judges. As the voter appeared, his name was called
        out in a loud voice. The judges inquired, “John Jones
        (or Smith), for whom do you vote?”—for governor, or
        whatever was the office to be filled. He replied by
        proclaiming the name of his favorite. Then the clerks
        enrolled the vote, and the judges announced it as en
        rolled. The representative of the candidate for whom
        he voted arose, bowed, and thanked him aloud; and
                     Cite as: 561 U. S. ____ (2010)            7
    
                   SCALIA, J., concurring in judgment
    
        his partisans often applauded.’ ” Id., at 5 (quoting
        J. Wise, The End of An Era 55–56 (1899)).
    See also R. Dinkin, A Study of Elections in the Original
    Thirteen States, 1776–1789, p. 101 (1982) (Dinkin).
      Although there was variation, the election official would
    ordinarily compile a poll with the name and residence of
    each voter, and the name of the candidate for whom he
    voted. See C. Bishop, History of Elections in the American
    Colonies 160–64 (1893) (Bishop); P. Argersinger, Struc
    ture, Process, and Party: Essays in American Political
    History 47 (1992) (Argersinger). To prevent fraud, the
    Colonies in Rhode Island, New York, and New Jersey
    adopted the English rule that “copies of the poll must be
    delivered on demand to persons who were willing to pay a
    reasonable charge for the labor of writing them.” Bishop
    186. Some colonies allowed candidates to demand a copy
    of the poll, ibid., and required the legislature to examine
    the poll in a contested election, id., at 188–189. Thus, as
    in this case, the government not only publicly collected
    identifying information about who voted and for which
    candidate, it also disclosed that information to the public.
      Any suggestion that viva voce voting infringed the ac
    cepted understanding of the pre-existing freedom of
    speech to which the First Amendment’s text refers is
    refuted by the fact that several state constitutions that
    required or authorized viva voce voting also explicitly
    guaranteed the freedom of speech. See, e.g., Ky. Const.,
    Art. X, §7, Art. VI, §16 (1799); Ill. Const., Art. VIII, §22,
    Art. I, §28 (1818). Surely one constitutional provision did
    not render the other invalid.
      Of course the practice of viva voce voting was gradually
    replaced with the paper ballot, which was thought to
    reduce fraud and undue influence. See Evans 1–6; Dinkin
    101–106. There is no indication that the shift resulted
    from a sudden realization that public voting infringed
    8                       DOE v. REED
    
                   SCALIA, J., concurring in judgment
    
    voters’ freedom of speech, and the manner in which it
    occurred suggests the contrary. States adopted the paper
    ballot at different times, and some States changed meth
    ods multiple times. New York’s 1777 Constitution, for
    example, explicitly provided for the State to switch be
    tween methods. Art. VI. Kentucky’s 1792 Constitution
    required paper ballots, Art. III, §2, but its 1799 Constitu
    tion required viva voce voting, Art. VI, §16. The different
    voting methods simply reflected different views about how
    democracy should function. One scholar described Vir
    ginia’s and Kentucky’s steadfast use of viva voce voting
    through the Civil War as follows: “[I]n the appeal to un
    flinching manliness at the polls these two states insisted
    still that every voter should show at the hustings the
    courage of his personal conviction.” Schouler, Evolution of
    the American Voter, 2 The American Historical Review
    665, 671 (1897). See also id., at 666–667 (“In Virginia and
    the other states in close affiliation with her this oral ex
    pression was vaunted as the privilege of the free-born
    voter, to show the faith that was in him by an outspoken
    announcement of his candidate”).
       The new paper ballots did not make voting anonymous.
    See Evans 10 (“[T]he ballot was not secret”); Argersinger
    48 (“Certainly there were no legal provisions to ensure
    secrecy”). Initially, many States did not regulate the form
    of the paper ballot. See Evans 10; Argersinger 48–49.
    Taking advantage of this, political parties began printing
    ballots with their candidates’ names on them. They used
    brightly colored paper and other distinctive markings so
    that the ballots could be recognized from a distance, mak
    ing the votes public. See Burson, supra, at 200–201;
    Evans 10–11. Abuse of these unofficial paper ballots was
    rampant. The polling place had become an “open auction
    place” where votes could be freely bought or coerced.
    Burson, supra, at 202. Employers threatened employees.
    Party workers kept voters from the other party away from
                      Cite as: 561 U. S. ____ (2010)            9
    
                    SCALIA, J., concurring in judgment
    
    the ballot box. Ballot peddlers paid voters and then
    watched them place the ballot in the box. See L. Fredman,
    The Australian Ballot: The Story of an American Reform
    22–29 (1968); Argersinger 48–50. Thus, although some
    state courts said that voting by ballot was meant to be
    more secret than the public act of viva voce voting; and
    although some state constitutional requirements of ballot
    voting were held to guarantee ballot secrecy, thus prohib
    iting the numbering of ballots for voter identification
    purposes, see Williams v. Stein, 
    38 Ind. 89
     (1871); Brisbin
    v. Cleary, 
    26 Minn. 107
    , 
    1 N.W. 825
     (1879); in general,
    voting by ballot was by no means secret. Most important
    of all for present purposes, I am aware of no assertion of
    ballot secrecy that relied on federal or state constitutional
    guarantees of freedom of speech.
       It was precisely discontent over the nonsecret nature of
    ballot voting, and the abuses that produced, which led to
    the States’ adoption of the Australian secret ballot. New
    York and Massachusetts began that movement in 1888,
    and almost 90 percent of the States had followed suit by
    1896. Burson, 504 U. S., at 203–205. But I am aware of
    no contention that the Australian system was required by
    the First Amendment (or the state counterparts). That
    would have been utterly implausible, since the inhabitants
    of the Colonies, the States, and the United States had
    found public voting entirely compatible with “the freedom
    of speech” for several centuries.
                              *    *     *
       The long history of public legislating and voting contra
    dicts plaintiffs’ claim that disclosure of petition signatures
    having legislative effect violates the First Amendment. As
    I said in McIntyre, “[w]here the meaning of a constitu
    tional text (such as ‘the freedom of speech’) is unclear, the
    widespread and long-accepted practices of the American
    people are the best indication of what fundamental beliefs
    10                      DOE v. REED
    
                   SCALIA, J., concurring in judgment
    
    it was intended to enshrine.” 514 U. S., at 378 (dissenting
    opinion). Just as the century-old practice of States’ pro
    hibiting anonymous electioneering was sufficient for me to
    reject the First Amendment claim to anonymity in McIn
    tyre, the many-centuries-old practices of public legislating
    and voting are sufficient for me to reject plaintiffs’ claim.
       Plaintiffs raise concerns that the disclosure of petition
    signatures may lead to threats and intimidation. Of
    course nothing prevents the people of Washington from
    keeping petition signatures secret to avoid that—just as
    nothing prevented the States from moving to the secret
    ballot. But there is no constitutional basis for this Court
    to impose that course upon the States—or to insist (as
    today’s opinion does) that it can only be avoided by the
    demonstration of a “sufficiently important governmental
    interest,” ante, at 7 (internal quotation marks omitted).
    And it may even be a bad idea to keep petition signatures
    secret. There are laws against threats and intimidation;
    and harsh criticism, short of unlawful action, is a price our
    people have traditionally been willing to pay for self
    governance. Requiring people to stand up in public for
    their political acts fosters civic courage, without which
    democracy is doomed. For my part, I do not look forward
    to a society which, thanks to the Supreme Court, cam
    paigns anonymously (McIntyre) 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 the Home of the Brave.
                         Cite as: 561 U. S. ____ (2010)                   1
    
                            THOMAS, J., dissenting
    
    SUPREME COURT OF THE UNITED STATES
                                 _________________
    
                                  No. 09–559
                                 _________________
    
    
      JOHN DOE #1, ET AL., PETITIONERS v. SAM REED, 
    
        WASHINGTON SECRETARY OF STATE, ET AL. 
    
     ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
    
                APPEALS FOR THE NINTH CIRCUIT
    
                                [June 24, 2010] 
    
    
      JUSTICE THOMAS, dissenting.
      Just as “[c]onfidence in the integrity of our electoral
    processes is essential to the functioning of our participa
    tory democracy,” Purcell v. Gonzalez, 
    549 U.S. 1
    , 4 (2006)
    (per curiam), so too is citizen participation in those proc
    esses, which necessarily entails political speech and asso
    ciation under the First Amendment. In my view, com
    pelled disclosure of signed referendum and initiative
    petitions1 under the Washington Public Records Act
    (PRA), Wash. Rev. Code §42.56.001, et seq. (2008), severely
    burdens those rights and chills citizen participation in the
    referendum process. Given those burdens, I would hold
    that Washington’s decision to subject all referendum
    petitions to public disclosure is unconstitutional because
    there will always be a less restrictive means by which
    Washington can vindicate its stated interest in preserving
    the integrity of its referendum process. I respectfully
    dissent.
    
    
    ——————
      1 Generally speaking, in a referendum, voters approve or reject an Act
    
    already passed by the legislature. In an initiative, voters adopt or
    reject an entirely new law, either a statute or a constitutional amend
    ment. See T. Cronin, Direct Democracy: The Politics of Initiative,
    Referendum, and Recall 2 (1989).
    2                       DOE v. REED
    
                        THOMAS, J., dissenting
    
                                  I
       This case concerns the interaction of two distinct sets of
    Washington statutes. The first set, codified in Washing
    ton’s Election Code, regulates the referendum and initia
    tive process. These statutes require, among other things,
    that referendum signers write their names and addresses
    on petition sheets, and mandate that this information
    be disclosed to Washington’s secretary of state for canvass
    ing and verification. See, e.g., §§29A.72.130, 29A.72.230
    (2008). Petitioners do not contend that these require
    ments violate their First Amendment rights; that is, they
    do not argue that the Constitution allows them to support
    a referendum measure without disclosing their names to
    the State.
       The second set of statutes—the PRA—is not a referen
    dum or election regulation. Rather, the PRA requires
    disclosure of all nonexempt “public records” upon request
    by any person. See §§42.56.010(2), 42.56.070. Washing
    ton has concluded that signed referendum petitions are
    “public records” subject to disclosure under the PRA, and
    has “routinely disclosed petitions in response to public
    records requests.” Brief for Respondent Reed 5–6.
       Petitioners do not challenge the constitutionality of the
    PRA generally. They contend only that Washington vio
    lates their First Amendment rights by construing the PRA
    to apply to signed referendum petitions. See Brief for
    Petitioners 35–39. As the Court notes, the parties dispute
    whether this challenge is best conceived as a facial chal
    lenge or an as-applied challenge. See ante, at 5. In my
    view, the Court correctly concludes that petitioners must
    “satisfy our standards for a facial challenge” because their
    claim, and the relief that they seek, “reach beyond” their
    “particular circumstances.” Ibid.
       We typically disfavor facial challenges. See Washington
    State Grange v. Washington State Republican Party, 
    552 U.S. 442
    , 449 (2008). They “often rest on speculation,”
                      Cite as: 561 U. S. ____ (2010)            3
    
                         THOMAS, J., dissenting
    
    can lead courts unnecessarily to anticipate constitutional
    questions or formulate broad constitutional rules, and may
    prevent governmental officers from implementing laws “in
    a manner consistent with the Constitution.” Id., at 450–
    451. For those reasons, we rejected in Washington State
    Grange political parties’ pre-enforcement facial challenge
    to a Washington initiative that allowed candidates in a
    primary election to self-designate their political party
    preference on the primary election ballot. See id., at 458–
    459. Because the challenge was a pre-enforcement one,
    Washington “had no opportunity to implement” the initia
    tive, id., at 450, so the political parties’ arguments that it
    violated their association rights all depended “on the
    possibility that voters will be confused as to the meaning
    of the party-preference designation,” id., at 454. More
    over, a facial challenge was inappropriate because the
    regulation did “not on its face impose a severe burden on
    political parties’ associational rights.” Id., at 444.
       Those considerations point in the opposite direction
    here. Washington’s construction of the PRA “on its face
    impose[s] a severe burden,” ibid.—compelled disclosure of
    privacy in political association protected by the First
    Amendment, see infra, at 4–5—on all referendum signers.
    And Washington has had several “opportunit[ies] to im
    plement” the PRA’s disclosure requirements with respect
    to initiative petitions. Washington State Grange, supra, at
    450. Indeed, Washington admits that “[a]ll petitions for
    initiatives, referendum, recall, and candidate nomination
    are public records subject to disclosure.” Brief for Respon
    dent Reed 59; see also App. 26 (listing six completed re
    quests for disclosure of signed initiative petitions since
    2006). Washington thus has eliminated any “possibility”
    that referendum petition signers “will be confused as to”
    how the State will respond to a request under the PRA to
    disclose their names and addresses. Washington State
    Grange, 552 U. S., at 454.
    4                        DOE v. REED
    
                         THOMAS, J., dissenting
    
      Accordingly, I would consider petitioners’ facial chal
    lenge here. For purposes of this case, I will assume that to
    prevail, petitioners must satisfy our most rigorous stan
    dard, and show that there is “ ‘no set of circumstances . . .
    under which the’ ” PRA could be constitutionally applied to
    a referendum or initiative petition, “i.e., that the [PRA] is
    unconstitutional in all of its applications,” id., at 449
    (quoting United States v. Salerno, 
    481 U.S. 739
    , 745
    (1987)).
                                   II 
    
                                   A
    
       The Court correctly concludes that “an individual ex
    presses” a “political view” by signing a referendum peti
    tion. Ante, at 5. The Court also rightly rejects the base
    less argument that such expressive activity falls “outside
    the scope of the First Amendment” merely because “it has
    legal effect in the electoral process.” Ante, at 6. Yet, the
    Court does not acknowledge the full constitutional impli
    cations of these conclusions.
       The expressive political activity of signing a referendum
    petition is a paradigmatic example of “the practice of
    persons sharing common views banding together to
    achieve a common end.” Citizens Against Rent Con
    trol/Coalition for Fair Housing v. Berkeley, 
    454 U.S. 290
    ,
    294 (1981). A referendum supported by only one person’s
    signature is a nullity; it will never be placed on the ballot.
    The Doe petitioners recognized as much when they—and
    more than 120,000 other Washingtonians, see ante, at 3—
    joined with petitioner Protect Marriage Washington, “a
    state political action committee” organized under
    §42.17.040, to effect Protect Marriage Washington’s “major
    purpose” of collecting enough valid signatures to place
    Referendum 71 on the general election ballot. App. to Pet.
    for Cert. 29a. For these reasons, signing a referendum
    petition amounts to “ ‘political association’ ” protected by
                     Cite as: 561 U. S. ____ (2010)            5
    
                        THOMAS, J., dissenting
    
    the First Amendment. Citizens Against Rent Control,
    supra, at 295 (quoting Buckley v. Valeo, 
    424 U.S. 1
    , 15
    (1976) (per curiam)).
       This Court has long recognized the “vital relationship
    between” political association “and privacy in one’s asso
    ciations,” NAACP v. Alabama ex rel. Patterson, 
    357 U.S. 449
    , 462 (1958), and held that “[t]he Constitution protects
    against the compelled disclosure of political associations
    and beliefs,” Brown v. Socialist Workers ’74 Campaign
    Comm. (Ohio), 
    459 U.S. 87
    , 91 (1982). This constitutional
    protection “yield[s] only to a subordinating interest of the
    State that is compelling, and then only if there is a sub
    stantial relation between the information sought and an
    overriding and compelling state interest.” Id., at 91–92
    (internal quotation marks, citations, and brackets omit
    ted). Thus, unlike the Court, I read our precedents to
    require application of strict scrutiny to laws that compel
    disclosure of protected First Amendment association.
    Buckley v. American Constitutional Law Foundation, Inc.,
    
    525 U.S. 182
    , 206, 212 (1999) (ACLF) (THOMAS, J., con
    curring in judgment). Under that standard, a disclosure
    requirement passes constitutional muster only if it is
    narrowly tailored—i.e., the least restrictive means—to
    serve a compelling state interest. See id., at 206.
                                  B
      Washington’s application of the PRA to a referendum
    petition does not survive strict scrutiny.
                                  1
      Washington first contends that it has a compelling
    interest in “transparency and accountability,” which it
    claims encompasses several subordinate interests: pre
    serving the integrity of its election process, preventing
    corruption, deterring fraud, and correcting mistakes by
    the secretary of state or by petition signers. See Brief for
    6                        DOE v. REED
    
                         THOMAS, J., dissenting
    
    Respondent Reed 40–42; 57–59.
        It is true that a State has a substantial interest in regu
    lating its referendum and initiative processes “to protect
    the[ir] integrity and reliability.” ACLF, 525 U. S., at 191.
    But Washington points to no precedent from this Court
    recognizing “correcting errors” as a distinct compelling
    interest that could support disclosure regulations. And
    our cases strongly suggest that preventing corruption and
    deterring fraud bear less weight in this particular elec
    toral context: the signature-gathering stage of a referen
    dum or initiative drive. The Court has twice observed that
    “ ‘the risk of fraud or corruption, or the appearance
    thereof, is more remote at the petition stage of an initia
    tive than at the time of balloting.’ ” Id., at 203 (quoting
    Meyer v. Grant, 
    486 U.S. 414
    , 427 (1988)). Similarly,
    because “[r]eferenda are held on issues, not candidates for
    public office,” the “risk of corruption perceived in cases
    involving candidate elections simply is not present in a
    popular vote on a public issue.” First Nat. Bank of Boston
    v. Bellotti, 
    435 U.S. 765
    , 790 (1978) (citations omitted).
        We should not abandon those principles merely because
    Washington and its amici can point to a mere eight in
    stances of initiative-related fraud, see Brief for Respon
    dent Reed 42; Brief for State of Ohio et al. as Amici Curiae
    22–24, among the 809 initiative measures placed on
    state ballots in this country between 1988 and 2008,
    see Initiative and Referendum Institute, Initiative Use
    2 (Feb. 2009), online at http://www.iandrinstitute.org/
    IRI%20Initiative%20Use%20(1904-2008).pdf (as visited
    June 21, 2010, and available in Clerk of Court’s case file).
    If anything, these meager figures reinforce the conclusion
    that the risks of fraud or corruption in the initiative and
    referendum process are remote and thereby undermine
    Washington’s claim that those two interests should be
    considered compelling for purposes of strict scrutiny.
        Thus, I am not persuaded that Washington’s interest in
                     Cite as: 561 U. S. ____ (2010)            7
    
                        THOMAS, J., dissenting
    
    protecting the integrity and reliability of its referendum
    process, as the State has defined that interest, is compel
    ling. But I need not answer that question here. Even
    assuming the interest is compelling, on-demand disclosure
    of a referendum petition to any person under the PRA is “a
    blunderbuss approach” to furthering that interest, Colo
    rado Republican Federal Campaign Comm. v. Federal
    Election Comm’n, 
    518 U.S. 604
    , 642 (1996) (THOMAS, J.,
    concurring in judgment and dissenting in part) (internal
    quotation marks omitted), not the least restrictive means
    of doing so. The events that prompted petitioners’ com
    plaint in this case demonstrate as much.
       As Washington explained during oral argument, after
    the secretary of state receives signed referendum peti
    tions, his “first step . . . is to take them to his archiving
    section and to have them digitized. As soon as they’re
    digitized, they’re available on disks for anyone who re
    quests them” under the PRA. Tr. of Oral Arg. 30. In this
    case, two organizations announced their intention to
    obtain the digitized names and addresses of referendum
    signers and post them “online, in a searchable format.”
    Ante, at 3.
       There is no apparent reason why Washington must
    broadly disclose referendum signers’ names and addresses
    in this manner to vindicate the interest that it invokes
    here. Washington—which is in possession of that infor
    mation because of referendum regulations that petitioners
    do not challenge, see supra, at 2—could put the names and
    addresses of referendum signers into a similar electronic
    database that state employees could search without sub
    jecting the name and address of each signer to wholesale
    public disclosure. The secretary could electronically cross
    reference the referendum database against the “statewide
    voter registration list” contained in Washington’s “state
    8                            DOE v. REED
    
                             THOMAS, J., dissenting
    
    wide voter registration database,” §29A.08.651(1),2 to
    ensure that each referendum signer meets Washington’s
    residency and voter registration requirements, see
    §29A.72.130. Doing so presumably would drastically
    reduce or eliminate possible errors or mistakes that Wash
    ington argues the secretary might make, see Brief for
    Respondent Reed 42, since it would allow the secretary to
    verify virtually all of the signatures instead of the mere “3
    to 5%” he “ordinarily checks,” ante, at 9 (internal quota
    tion marks omitted).3
       An electronic referendum database would also enable
    the secretary to determine whether multiple entries corre
    spond to a single registered voter, thereby detecting
    whether a voter had signed the petition more than once.
    In addition, the database would protect victims of “for
    gery” or “ ‘bait and switch’ fraud.” Ibid. In Washington, “a
    unique identifier is assigned to each legally registered
    voter in the state.” §29A.08.651(4). Washington could
    create a Web site, linked to the electronic referendum
    database, where a voter concerned that his name had been
    fraudulently signed could conduct a search using his
    unique identifier to ensure that his name was absent from
    the database—without requiring disclosure of the names
    and addresses of all the voluntary, legitimate signers.
       Washington admits that creating this sort of electronic
    referendum database “could be done.” Tr. of Oral Arg. 51.
    Implementing such a system would not place a heavy
    burden on Washington; “the Secretary of State’s staff”
    ——————
        2 UnderWashington law, this “computerized list must serve as the
    single system for storing and maintaining the official list of registered
    voters throughout the state” and “must contain the name and registra
    tion information of every legally registered voter in the state.” Wash.
    Rev. Code §§29A.08.651(2)–(3) (2008).
       3 See §29A.72.230 (permitting the secretary of state to verify and
    
    canvass referendum petitions using approved statistical sampling
    methods).
                     Cite as: 561 U. S. ____ (2010)           9
    
                        THOMAS, J., dissenting
    
    already uses an “electronic voter registration database” in
    its “verification process.” Id., at 50.
       Washington nevertheless contends that its citizens must
    “have access to public records . . . to independently evalu
    ate whether the Secretary properly determined to certify
    or not to certify a referendum to the ballot.” Brief for
    Respondent Reed 41. “[W]ithout the access to signed
    petitions that the PRA provides,” Washington argues, its
    “citizens could not fulfill their role as the final judge of
    public business.” Ibid. (internal quotation marks omitted).
       But Washington’s Election Code already gives Washing
    ton voters access to referendum petition data. Under
    §29A.72.230, “[t]he verification and canvass of signatures
    on the [referendum] petition may be observed by persons
    representing the advocates and opponents of the proposed
    measure so long as they make no record of the names,
    addresses, or other information on the petitions or related
    records except upon” court order. Each side is entitled to
    at least two such observers, although the secretary may
    increase that number if, in his opinion, doing so would not
    “cause undue delay or disruption of the verification proc
    ess.” Ibid.
       Washington does not explain why this existing access,
    which petitioners do not challenge here, is insufficient to
    permit its citizens to oversee the verification process un
    der §29A.72.230, or to decide intelligently whether to
    pursue a court challenge under §29A.72.240. Moreover, if
    Washington had implemented the more narrowly tailored
    electronic referendum database discussed above, observers
    could see the secretary of state’s employees examine the
    data using exactly the same techniques they would use if
    the data were released to them under the PRA. Obtaining
    a digitized list to navigate on their own computer would
    not allow an observer to learn any additional information.
       Washington law also contains several other measures
    that preserve the integrity of the referendum process.
    10                      DOE v. REED
    
                        THOMAS, J., dissenting
    
    First, it is a crime in Washington to forge a signature on a
    referendum petition, or to knowingly sign one more than
    once. See §29A.84.230. Second, referendum supporters
    must gather a large number of valid signatures—four
    percent of the votes cast for Governor in the immediately
    preceding gubernatorial election—to place a referendum
    petition on the ballot. §29A.72.150. Third, Washington’s
    required referendum petition form limits each petition to a
    single subject. See §29A.72.130. Fourth, a large, plain-
    English warning must appear at the top of the referendum
    petition, alerting signers to the law’s requirements. See
    §29A.72.140. Fifth, Washington prescribes the text of the
    declaration that a circulator must submit along with the
    signed petition sheets. See §29A.72.130. Sixth, Washing
    ton prescribes verification and canvassing methods. See
    §29A.72.230.
      The Court’s dismissive treatment of those provisions,
    see ante, at 9, is perplexing, given the analysis that the
    Court endorsed in ACLF. There, the Court held that two
    disclosure requirements governing Colorado’s initiative
    process were unconstitutional, see 525 U. S., at 186–187,
    specifically finding that they were “not warranted by the
    state interests (administrative efficiency, fraud detection,
    informing voters) alleged to justify” them, and emphasiz
    ing that its “judgment [wa]s informed by other means
    Colorado employs to accomplish its regulatory purposes.”
    Id., at 192. The entire last section of the Court’s opinion
    detailed those “less problematic measures” by which Colo
    rado “can and d[id] meet” its “substantial interests in
    regulating the ballot-initiative process.” Id., at 204 (em
    phasis added). With one exception—a law deeming an
    initiative void if the circulator violated any law applicable
    to the circulation process—those Colorado laws correspond
    exactly to the Washington regulatory requirements listed
    above. See id., at 205. Including the observer provision,
    §29A.72.230, and the provision permitting court review of
                      Cite as: 561 U. S. ____ (2010)            11
    
                         THOMAS, J., dissenting
    
    the secretary’s decision to certify (or not to certify) a refer
    endum petition, §29A.72.240, Washington thus appears to
    provide even more of the “less problematic measures” than
    Colorado did to “protect the integrity of the initiative
    process,” ACLF, supra, at 204, and I see no reason why
    Washington’s identical provisions should not “inform” the
    analysis here.
      It is readily apparent that Washington can vindicate its
    stated interest in “transparency and accountability”
    through a number of more narrowly tailored means than
    wholesale public disclosure. Accordingly, this interest
    cannot justify applying the PRA to a referendum petition.
                                 2
      Washington also contends that it has a compelling
    interest in “providing relevant information to Washington
    voters,” and that on-demand disclosure to the public is a
    narrowly tailored means of furthering that interest. Brief
    for Respondent Reed 44. This argument is easily dis
    patched, since this Court has already rejected it in a simi
    lar context.
      In McIntyre v. Ohio Elections Comm’n, 
    514 U.S. 334
    (1995), the Court held that an Ohio law prohibiting
    anonymous political pamphleting violated the First
    Amendment. One of the interests Ohio had invoked to
    justify that law was identical to Washington’s here: the
    “interest in providing the electorate with relevant infor
    mation.” Id., at 348. The Court called that interest
    “plainly insufficient to support the constitutionality of
    [Ohio’s] disclosure requirement.” Id., at 349. “The simple
    interest in providing voters with additional relevant in
    formation does not justify a state requirement that a
    writer make statements or disclosures she would other
    wise omit.” Id., at 348. “Don’t underestimate the common
    man,” we advised. Id., at 348, n. 11 (internal quotation
    marks omitted).
    12                      DOE v. REED
    
                        THOMAS, J., dissenting
    
         “People are intelligent enough to evaluate the source
         of an anonymous writing. They can see it is anony
         mous. They know it is anonymous. They can evalu
         ate its anonymity along with its message. . . . And
         then, once they have done so, it is for them to decide
         what is ‘responsible,’ what is valuable, and what is
         truth.” Ibid. (internal quotation marks omitted).
    See also Bellotti, 435 U. S., at 777 (“The inherent worth of
    the speech in terms of its capacity for informing the public
    does not depend upon the identity of its source”).
       This observation applies equally to referendum meas
    ures. People are intelligent enough to evaluate the merits
    of a referendum without knowing who supported it. Thus,
    just as this informational interest did not justify the Ohio
    law in McIntyre, it does not justify applying the PRA to
    referendum petitions.
                                  C
      The foregoing analysis applies in every case involving
    disclosure of a referendum measure’s supporters, as it
    must for petitioners’ facial challenge to succeed. See
    Washington State Grange, 552 U. S., at 449 (quoting
    Salerno, 481 U. S., at 745). Washington does not argue
    that the strength of its transparency and accountability
    interest rises or falls based on the topic of a referendum.
    Nor would such an argument be convincing. We have no
    basis to assume that Washington’s interest in maintaining
    the integrity of its referendum process is high for a char
    ter-school referendum but low for an unemployment in
    surance referendum, or that a library or land-use referen
    dum is more likely to be a target of fraud or corruption
    than a referendum on insurance coverage and benefits.
    See ante, at 11–12. The strength of Washington’s interest
    remains constant across all types of referendum measures.
      So too does the strength of a signer’s First Amendment
    interest. The First Amendment rights at issue here are
                     Cite as: 561 U. S. ____ (2010)           13
    
                        THOMAS, J., dissenting
    
    associational rights, and a long, unbroken line of this
    Court’s precedents holds that privacy of association is
    protected under the First Amendment. See supra, at 4–5.
    The loss of associational privacy that comes with disclos
    ing referendum petitions to the general public under the
    PRA constitutes the same harm as to each signer of each
    referendum, regardless of the topic. To be sure, a referen
    dum signer may be more willing to disclose to the general
    public his political association with persons signing cer
    tain referendum measures than his association with oth
    ers. But that choice belongs to the voter; the State may
    not make it for him by ascribing a lower level of First
    Amendment protection to an associational interest that
    some think a voter may be (or should be) more willing to
    disclose. Cf. Rosenberger v. Rector and Visitors of Univ. of
    Va., 
    515 U.S. 819
    , 828 (1995) (“In the realm of private
    speech or expression, government regulation may not
    favor one speaker over another”).
      Finally, the less restrictive means available to vindicate
    Washington’s transparency and accountability interest
    can be employed for all referendum measures, regardless
    of topic. There is nothing measure-specific about an elec
    tronic database or additional observers. And the forgery
    prohibition and other existing requirements in Washing
    ton law that help “protect the integrity of the initiative
    process,” ACLF, 525 U. S., at 204, apply equally to all
    referendum measures.
      Because the strength of Washington’s interest in trans
    parency and a signer’s individual First Amendment inter
    est in privacy of political association remain constant
    across all referendum topics, and because less restrictive
    means to protect the integrity of the referendum process
    are not topic specific, I would hold that on-demand public
    disclosure of referendum petitions under the PRA is not
    narrowly tailored for any referendum.
    14                       DOE v. REED
    
                         THOMAS, J., dissenting
    
                                 III
      Significant practical problems will result from requiring
    as-applied challenges to protect referendum signers’ con
    stitutional rights.
                                  A
       The Court’s approach will “require substantial litigation
    over an extended time” before a potential signer of any
    referendum will learn whether, if he signs a referendum,
    his associational privacy right will remain intact. Citizens
    United v. Federal Election Comm’n, 
    558 U.S.
    ___, ___
    (2010) (slip op., at 9). And the tenacious litigant’s reward
    for trying to protect his First Amendment rights? An
    “interpretive process [that] itself would create an inevita
    ble, pervasive, and serious risk of chilling protected speech
    pending the drawing of fine distinctions that, in the end,
    would themselves be questionable.” Id., at ___ (slip op., at
    9–10). The large number of such fine and questionable
    distinctions in these types of cases reinforces my view that
    as-applied challenges provide no more than “a hollow
    assurance” that referendum signers’ First Amendment
    rights will be protected. Id., at __ (slip op., at 5) (THOMAS,
    J., concurring in part and dissenting in part). Consider
    just a few examples.
       In Washington, a referendum sponsor must file the
    proposed referendum with the secretary of state before
    collecting signatures. See §29A.72.010. May the sponsor
    seek an injunction against disclosure through an as
    applied challenge before filing the proposed measure, or
    simultaneously with its filing?          Because signature
    gathering will not have started, the sponsor will not be
    able to present any evidence specific to signers or potential
    signers of that particular referendum showing “a reason
    able probability that the compelled disclosure [of personal
    information] will subject them to threats, harassment, or
    reprisals from either Government officials or private
                     Cite as: 561 U. S. ____ (2010)           15
    
                        THOMAS, J., dissenting
    
    parties.” Ante, at 11 (internal quotation marks omitted).
    Thus, to succeed at that stage of litigation, plaintiffs must
    point to (at least) one other instance of harassment arising
    from a similar referendum. The Court has never held that
    such evidence would be acceptable; but if it is, that neces
    sarily means that some signers, at some point, will have
    suffered actual “threats, harassment, and reprisals” for
    engaging in protected First Amendment activity.
       If the sponsor must wait at least until signature
    gathering has started on his referendum to file an as
    applied challenge, it is still unclear what sort of evidence
    of “threats, harassment, or reprisals” directed toward his
    supporters would satisfy the Court’s standard. How many
    instances of “threats, harassment or reprisals” must a
    signer endure before a court may grant relief on an as
    applied challenge? And how dispersed throughout the
    group of the necessary 120,000 signers, see ante, at 3,
    must these threats be?
       More importantly, the Court’s standard does not appear
    to require actual “threats, harassment, or reprisals,” but
    merely a “ ‘reasonable probability’ ” that disclosure of the
    signers’ names and addresses will lead to such activity.
    Ante, at 11 (emphasis added). What sort of evidence suf
    fices to satisfy this apparently more relaxed, though per
    haps more elusive, standard? Does one instance of actual
    harassment directed toward one signer mean that the
    “reasonable probability” requirement is met? And again,
    how widespread must this “reasonable probability” be?
    The Court does not answer any of these questions, leaving
    a vacuum to be filled on a case-by-case basis. This will, no
    doubt, result in the “drawing of” arbitrary and “question
    able” “fine distinctions” by even the most well-intentioned
    district or circuit judge. Citizens United, 558 U. S., at ___
    (slip op., at 9–10).
    16                        DOE v. REED 
    
    
                          THOMAS, J., dissenting
    
    
                                    B
    
       In addition, as I have previously explained, 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. “ ‘[T]he advent of the Internet’ enables” rapid
    dissemination of “ ‘the information needed’ to” threaten or
    harass every referendum signer. Id., at ___ (slip op., at 6)
    (opinion of THOMAS, J.). “Thus, ‘disclosure permits citi
    zens . . . 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.” Ibid.
       The Court apparently disagrees, asserting that “there is
    no reason to assume that any burdens imposed by disclo
    sure of typical referendum petitions would be remotely
    like the burdens plaintiffs fear in this case.” Ante, at 12.
    That conclusion rests on the premise that some referen
    dum measures are so benign that the fact of public dis
    closure will not chill protected First Amendment activity.
    I am not convinced that this premise is correct.
       The historical evidence shows that the referendum and
    initiative process first gained popularity as a means of
    “provid[ing] an occasional safety valve for interests that
    failed to get a fair hearing in the legislatures.” T. Cronin,
    Direct Democracy: The Politics of Initiative, Referendum,
    and Recall 59 (1989). Unsurprisingly, such interests
    tended to be controversial by nature. Early examples
    include “the single tax, prohibition, women’s suffrage,
    prolabor legislation, and the graduated income tax.” Id.,
    at 58. And proponents of initiative measures tended to
    include politically marginalized groups such as the
    “Farmer’s Alliance” in rural states; “[t]housands of labor
    federations, notably the miners”; and “the Women’s Suf
    frage Association,” which “saw the initiative and referen
    dum as a possible new means to overcome” repeated failed
    attempts in state legislatures to secure for women the
                     Cite as: 561 U. S. ____ (2010)           17
    
                        THOMAS, J., dissenting
    
    right to vote. Id., at 50–51.
       These characteristics of initiative and referendum
    drives persist today. Consider, for example, the goal of
    increasing ethics in government—a seemingly laudable
    and unobjectionable goal. So thought some citizens of
    Utah, who, frustrated with the state legislature’s failure to
    pass ethics laws commensurate with their preferences,
    filed a “21-page initiative target[ing] legislative conduct
    with a broad array of reforms that would significantly
    change how business gets done on Utah’s Capitol Hill.”
    McKitrick, Suit Demands Secrecy for Ethics Petition
    Signers, Salt Lake Tribune, Apr. 15, 2010, p. A4 (hereinaf
    ter Salt Lake Tribune). But Utah law provides that
    “[i]nitiative packets,” which contain the names and ad
    dresses (and, in some cases, birthdates) of petition signers,
    “are public once they are delivered to the county clerks”
    for verification and canvassing. Utah Code Ann. §20A–7–
    206(7) (2009 Lexis Supp. Pamphlet).
       The attorneys sponsoring that initiative moved for an
    injunction to prevent disclosure of the initiative packets
    under §20A–7–206(7) because, they claimed, “ ‘[t]he [state]
    Republican Party has said it will target our folks.’ ” Salt
    Lake Tribune, at A4. According to these attorneys, a
    facially benign initiative may well result in political retri
    bution and retaliation in a State where Republicans cur
    rently hold the offices of Governor, Lieutenant Governor,
    attorney general, state treasurer, state auditor, and a
    supermajority in both the Utah House of Representatives
    (71%) and the Utah Senate (72%), see State Yellow Book:
    Who’s Who in the Executive and Legislative Branches of
    the 50 State Governments 650–651, 1292–1294 (Spring
    2010), as well as four of the five seats in the State’s dele
    gation to the United States Congress, see GPO, 2009–2010
    Official Congressional Directory, 111th Cong., pp. 299, 307
    (2009).
       The difficulty in predicting which referendum measures
    18                            DOE v. REED
    
                              THOMAS, J., dissenting
    
    will prove controversial—combined with Washington’s
    default position that signed referendum petitions will be
    disclosed on-demand, thereby allowing anyone to place
    this information on the Internet for broad dissemination—
    raises the significant probability that today’s decision will
    “inhibit the exercise of legitimate First Amendment activ
    ity” with respect to referendum and initiative petitions.
    Colorado Republican, 518 U. S., at 634 (THOMAS, J., con
    curring in judgment and dissenting in part). “[D]isclosure
    requirements enable private citizens and elected officials
    to implement political strategies specifically calculated to
    curtail campaign-related activity and prevent the lawful,
    peaceful exercise of First Amendment rights.” Citizens
    United, 558 U. S., at ___ (slip op., at 5) (THOMAS, J., con
    curring in part and dissenting in part). Our cases have
    long recognized this reality;4 as the Court recently reiter
    ated, the First Amendment does not require “case-by-case
    determinations” if “archetypical” First Amendment rights
    “would be chilled in the meantime.” Id., at ___ (slip op.,
    at 12).
       This chill in protected First Amendment activity harms
    others besides the dissuaded signer. We have already
    expressed deep skepticism about restrictions that “mak[e]
    it less likely that” a referendum “will garner the number
    of signatures necessary to place the matter on the ballot,
    ——————
       4 See, e.g., NAACP v. Alabama ex rel. Patterson, 
    357 U.S. 449
    , 462
    
    (1958) (noting the “hardly . . . novel perception that compelled disclo
    sure of affiliation with groups engaged in advocacy may constitute” an
    “effective . . . restraint on freedom of association”); Bates v. Little Rock,
    
    361 U.S. 516
    , 523 (1960) (“Freedoms such as” the “freedom of associa
    tion for the purpose of advancing ideas and airing grievances” are
    “protected not only against heavy-handed frontal attack, but also from
    being stifled by more subtle government interference”); see also id., at
    528 (Black and Douglas, JJ., concurring) (“First Amendment rights are
    beyond abridgment either by legislation that directly restrains their
    exercise or by suppression or impairment through harassment, hu
    miliation, or exposure by government” (emphasis added)).
                      Cite as: 561 U. S. ____ (2010)           19
    
                         THOMAS, J., dissenting
    
    thus limiting [the] ability to make the matter the focus of
    statewide discussion.” Meyer, 486 U. S., at 423. Such
    restrictions “inevitabl[y] . . . reduc[e] the total quantum of
    speech on a public issue.” Ibid. The very public that the
    PRA is supposed to serve is thus harmed by the way
    Washington implements that statute here.
                            *    *     *
       Petitioners do not argue that the Constitution gives
    supporters of referendum petitions a right to act without
    anyone knowing their identities. Thus, Washington’s
    requirements that referendum supporters sign their
    names and addresses to a referendum petition, and that
    this information be disclosed to the State for canvassing
    and verification, see Wash. Rev. Code §29A.72.230, are not
    at issue. And, petitioners do not contend that Washing
    ton’s citizens may never obtain access to referendum data.
    Thus, Washington’s rules allowing access to at least two
    representative observers from each side, see ibid., and
    authorizing courts to review the secretary of state’s verifi
    cation and canvassing decision if those observers are
    dissatisfied with the secretary’s decision, see §29A.72.240,
    are also not in question.
       The Court is asked to assess the constitutionality of the
    PRA only with regard to referendum petitions. The ques
    tion before us is whether all signers of all referendum
    petitions must resort to “substantial litigation over an
    extended time,” Citizens United, supra, at ___ (slip op., at
    9), to prevent Washington from trenching on their pro
    tected First Amendment rights by subjecting their refer
    endum-petition signatures to on-demand public disclosure.
    In my view, they need not.
    

Document Info

DocketNumber: 09-559

Citation Numbers: 561 U.S. 186, 130 S. Ct. 2811, 177 L. Ed. 2d 493, 2010 U.S. LEXIS 5256

Filed Date: 6/24/2010

Precedential Status: Precedential

Modified Date: 2/15/2018

Authorities (38)

Hollingsworth v. Perry , 558 U.S. 183 ( 2010 )

United States v. Stevens , 559 U.S. 460 ( 2010 )

United States v. Detroit Timber & Lumber Co. , 200 U.S. 321 ( 1906 )

Pullman Co. v. Knott , 235 U.S. 23 ( 1914 )

Cox v. New Hampshire , 312 U.S. 569 ( 1941 )

NAACP v. Alabama Ex Rel. Patterson , 357 U.S. 449 ( 1958 )

Bates v. Little Rock , 361 U.S. 516 ( 1960 )

Gibson v. Florida Legislative Investigation Comm. , 372 U.S. 539 ( 1963 )

DeGregory v. Attorney General of NH , 383 U.S. 825 ( 1966 )

United States v. O'Brien , 391 U.S. 367 ( 1968 )

Cox Broadcasting Corp. v. Cohn , 420 U.S. 469 ( 1975 )

Buckley v. Valeo , 424 U.S. 1 ( 1976 )

First Nat. Bank of Boston v. Bellotti , 435 U.S. 765 ( 1978 )

Widmar v. Vincent , 454 U.S. 263 ( 1981 )

Citizens Against Rent Control/Coalition for Fair Housing v. ... , 454 U.S. 290 ( 1981 )

Brown v. Socialist Workers '74 Campaign Comm. (Ohio) , 459 U.S. 87 ( 1982 )

Anderson v. Celebrezze , 460 U.S. 780 ( 1983 )

United States v. Salerno , 481 U.S. 739 ( 1987 )

Meyer v. Grant , 486 U.S. 414 ( 1988 )

Burson v. Freeman , 504 U.S. 191 ( 1992 )

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