BENJAMIN H. SETTLE, District Judge.
This matter comes before the Court on the parties' cross motions for summary judgment (Dkts. 196, 204, 208, 209). The Court has considered the pleadings filed in support of and in opposition to the motions, the remainder of the file, and heard oral argument on October 3, 2011, and hereby grants summary judgment in favor of Defendants and Intervenors and denies Plaintiffs' motion for summary judgment. The Court also lifts its injunction preventing the disclosure of the Referendum 71 ("R-71") petitions and closes this case.
On July 28, 2009, Plaintiffs (collectively "Doe") filed this action to object to and enjoin the disclosure of R-71 petitions on two constitutional bases: Count I, that disclosure of any referendum or initiative petitions is unconstitutional as a general matter; and Count II, that disclosure of R-71 petitions would be unconstitutional as applied to Doe (i.e., R-71 initiative signers). See Dkt. 2 (Complaint). On September 10, 2009, 661 F.Supp.2d 1194 (W.D.Wash.2009), the Court granted preliminary injunctive relief on Count I but declined to rule on Count II. Dkt. 62.
Defendants appealed the Court's ruling and the Ninth Circuit reversed. Doe v. Reed, 586 F.3d 671 (2009). The Supreme Court accepted review and affirmed the Ninth Circuit. Doe v. Reed, ___ U.S. ___, 130 S.Ct. 2811, 177 L.Ed.2d 493 (2010). The Supreme Court left open the possibility of relief under Count II (Doe's as-applied challenge to disclosure).
On June 29, 2011, the parties each filed motions for summary judgment regarding Doe's as-applied challenge. Dkts. 196, 204, 208, and 209. The parties fully briefed these matters. Additionally, the Secretary of State of Washington moved to strike certain evidence relied upon by Doe. Dkt. 231 (motion to strike and reply to Doe's response in opposition to summary judgment).
In denying relief under Count I of Doe's Complaint, the Supreme Court of the United States set out the following factual and contextual background, which remains relevant in resolving the instant motions before the Court:
Doe, 130 S.Ct. at 2815-2817. The Supreme Court did not rule on Count II, which is the issue now before this Court.
On remand, the parties engaged in discovery. During discovery, Doe identified nineteen witnesses, including John Does Nos. 1 and 2. Discovery closed on October 22, 2010. Dkt. 128 (scheduling order).
Summary judgment is proper only if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim in the case on which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (nonmoving party must present specific, significant probative evidence, not simply "some metaphysical doubt"). See also Fed.R.Civ.P. 56(e). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987).
Applied here, the Court finds that Doe has failed to raise a material question of fact. Because the evidence submitted in support of the parties' cross-motions is not in any meaningful way controverted, the Court can resolve the issues presented herein as a matter of law.
In Doe, the Supreme Court set out the standard of scrutiny to be applied in electoral cases such as this:
130 S.Ct. at 2818. The Court further noted that "The State's interest in preserving the integrity of the electoral process is undoubtedly important. `States allowing ballot initiatives have considerable leeway to protect the integrity and reliability of the initiative process, as they have with respect to election processes generally.'" Buckley v. ACLF, 525 U.S. 182, 191, 119 S.Ct. 636,
Therefore, exacting scrutiny applies in this case.
In as-applied challenges such as the instant case, the Supreme Court has "explained that those resisting disclosure can prevail under the First Amendment if they can show `a reasonable probability that the compelled disclosure [of personal information] will subject them to threats, harassment, or reprisals from either Government officials or private parties.'" Doe, 130 S.Ct. at 2820 (quoting Buckley, supra, at 74, 96 S.Ct. 612; see also Citizens United, 558 U.S. at ___, 130 S.Ct. at 915).
To prevail on an as-applied challenge, Doe will have to satisfy this reasonable probability standard with "respect to those who signed the R-71 petition." See id. at 2820-2821 (leaving this narrow issue open on remand); see Buckley, supra, at 74, 96 S.Ct. 612 ("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 or private parties"); Citizens United, supra, at ___, 130 S.Ct. at 915 (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") (quoting McConnell v. Federal Election Comm'n, 540 U.S. 93, 198, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003)).
Additionally, while the majority opinion in Doe provides only a minimal discussion as to the ability of Doe to prevail on an as-applied challenge, the concurrences in Doe elaborate on this issue and aid the Court in resolving this case. See 130 S.Ct. at 2822-2837 (concurring opinions).
Justice Sotomayor, with whom Justice Stevens and Justice Ginsburg join, stated the following with respect to as-applied challenges such as the instant matter:
Doe, 130 S.Ct. at 2829 (Sotomayor, concurring) (emphasis added).
Justice Stevens, with whom Justice Breyer joins, explained the following with respect to Doe's as-applied challenge:
Doe, 130 S.Ct. at 2831-2832 (footnotes omitted) (emphasis added); see also id., n. 4 (citing but not agreeing with Justice Scalia's concurrence at 2832, which concluded that granting relief to Doe on its as-applied challenge would amount to establishing a right to anonymous speech).
Doe makes an as-applied challenge to the PRA, seeking to prevent the disclosure of the personally identifying information of 137,000 R-71 petition signers. To succeed in this challenge, Doe must establish that such disclosure that is otherwise proper under the PRA would cause the signers to face a reasonable probability of threats, harassment, or reprisals. In opposition, Defendants and Intervenors assert that Doe has not supplied the Court with competent evidence to meet such a showing on an as-applied basis; Defendants and Intervenors also contend that Doe cannot or has not supplied adequate authority upon which it can succeed in its challenge based on the evidence that has been supplied by Doe and could be admissible at trial.
The as-applied exemption that Doe seeks has been upheld in only a few cases. See Buckley, 424 U.S. at 31-35, 96 S.Ct. 612; Brown, 459 U.S. at 102, 103 S.Ct. 416 (granting exemption to Socialist Worker Party ("SWP") deemed to have minor party status due to its 60 members, little success at the polls, and small amount of financial backing); NAACP, 357 U.S. at 466, 78 S.Ct. 1163 (holding that disclosure of rank and file membership of NAACP would restrain members' exercise of freedom of association); but see ProtectMarriage.com v. Bowen, 599 F.Supp.2d 1197, 1213 (2009) (rejecting an as-applied challenge for failure to supply adequate evidence
In NAACP, the Supreme Court found that "Petitioner [ ] made an uncontroverted showing that on past occasions revelation of the identity of its rank-and-file members has exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility." 357 U.S. at 462-463, 78 S.Ct. 1163. The NAACP Court concluded that:
Id.
Similarly, in Brown, the Supreme Court determined that "the evidence of private and government hostility toward the SWP and its members establishe[d] a reasonable probability that disclosing the names of contributors and recipients [would] subject them to threats, harassment, and reprisals." 459 U.S. at 100, 103 S.Ct. 416. Specifically, the Brown Court found that the SWP had uncontroverted and ample evidence of its experience with pervasive hostility by the government and private parties. Id. at 98-99, 103 S.Ct. 416 (evidence of threatening phone calls and hate mail; the burning of SWP literature; the destruction of SWP members' property; police harassment of a party candidate; the firing of shots at an SWP office; and evidence that, in the 12-month period before trial, 22 SWP members, including four in Ohio, were fired because of their party membership).
In contradistinction, the district court in ProtectMarriage.com declined to extend an as-applied exemption to a group challenging the California PRA disclosure requirements with respect to a ballot measure adopted by California citizens. The measure, "Proposition 8, [ ] changed the California Constitution such that marriage would only thereafter exist `between a man and a woman.'" 599 F.Supp.2d at 1199. In ProtectMarriage.com, the plaintiffs, much like Doe in this case, sought injunctive relief on the basis that they are "entitled to an as-applied blanket exemption from [their State's] compelled disclosure provisions because Plaintiffs have demonstrated a reasonable probability that compelled disclosure will result in threats, harassment, [or] reprisals because of their support for [the measure]." 599 F.Supp.2d at 1204 (quotations omitted).
The ProtectMarriage.com court found that plaintiffs did not and could not allege that a movement to define marriage as being between a man and a woman "is vulnerable to the same threats as were socialist and communist groups, or, for that matter, the NAACP." Id. at 1217.
After a thorough analysis of precedent, the ProtectMarriage.com court further concluded that "it would appear that . . . minor status is a necessary element of a successful as-applied claim." Id. at 1215. In fact, Doe has not supplied and the Court has not found any case wherein a court granted an as-applied exemption to the disclosure laws to a group, organization, or political party that did not have minor status. See, e.g., Buckley, 424 U.S. at 31-35, 96 S.Ct. 612; Brown, 459 U.S. at 102, 103 S.Ct. 416; NAACP, 357 U.S. at 466, 78 S.Ct. 1163.
Notably, a common thread exists among the cases wherein an exemption has been
599 F.Supp.2d at 1216 (citations omitted).
In short, "Brown and its progeny each involved groups seeking to further ideas historically and pervasively rejected and vilified by both this country's government and its citizens." Id. at 1215. Doe has not provided adequate authority to support any departure from requiring such a showing in order to bring a successful as-applied challenge to the PRA disclosure laws.
Based on this precedent, Defendants and Intervenors assert that, absent minor party status, Doe's as-applied challenge must fail. If the term "minor party" were attributable only to minor political parties, Doe's claims absolutely fail; indeed, the people making up the collective Doe cannot be categorized as a political party.
However, Defendants and Intervenors argue more subtly that the "minor party" rule in Buckley and the cases following it actually refer to fringe organizations, similar to the NAACP in the 1950s. Specifically, they argue that R-71 signers are not a fringe organization and have not established that they can qualify for minor party status as an organization because there is no cohesion in the 137,000 people who signed the R-71 petition or the 838,842 people who voted to reject the expansion of rights for same sex partners. The Court is persuaded that it is difficult to categorize the R-71 signers as a group or an organization; the only fact known to be common among these signers to any reasonable certainty is that they signed the R-71 petition. Significantly, in each of the cases where a court upheld an as-applied challenge to the disclosure laws, the party or organization making the challenge established that their constitutional right to associate freely would be illegally infringed upon should disclosure be ordered. Here, it is not clear that the R-71 signers have actually sought to associate with each other in a constitutionally protected manner.
However, even if the Court considered the R-71 supporters to be such a group or organization, Doe has not and cannot with any credibility analogize their situation to that of a small group of rank and file members of the SWP or the NAACP, discussed above. Instead, they are much more akin to the petitioners in ProtectMarriage.com who "orchestrated a massive movement to amend the California Constitution. Proponents of the initiative were successful in their endeavor, raising nearly $30 million, securing 52.3% of the vote and convincing over seven million voters to support Proposition 8." 599 F.Supp.2d at 1215.
Similarly here, PMW was able to secure 137,000 signers for R-71 and obtained nearly half the vote with 838,842 votes. And Doe has not supplied competent evidence or adequate authority to support its claim that the R-71 signers constitute a fringe organization with unpopular or unorthodox beliefs or one that is seeking to further ideas that have been "historically
Finally, the as-applied exemption is intended to prevent an organization from being forced to retreat from the marketplace of ideas, which would materially diminish discourse. Doe has not provided competent evidence that it is in any material way similar to the organizations, groups, or parties who have received the as-applied exemption in the past. Instead, the evidence before the Court logically leads only to the opposite conclusion.
Therefore, if minor party status (a.k.a. fringe organization) is required, as it appears that Buckley and its progeny require, Doe's claim fails in all material respects.
Assuming arguendo that Doe can get by the hurdles discussed above, Doe would still have to produce sufficient evidence of threats, harassment, or reprisals. In the cases where the exemption Doe seeks has been granted, the plaintiffs have supplied the courts with ample, uncontroverted evidence of a reasonable probability that disclosure will result in threats, harassment, or reprisals. As the ProtectMarriage.com court correctly summarized:
599 F.Supp.2d at 1217.
In Doe, the Supreme Court accurately and succinctly described the issue now before this Court: whether the PRA "is unconstitutional as applied to the [R-71] petition." 130 S.Ct. at 2817. Doe has provided the Court with a mountain of anecdotal evidence from around the country that offers merely a speculative possibility of threats, harassment, or reprisals. Doe has also provided the Court with numerous examples of what may be considered threats, harassment, or reprisals experienced by those supporting Proposition 8 in California.
In Buckley, the Supreme Court articulated that the proof of threats, harassment, or reprisals "may include, for example, specific evidence of past or present harassment of members due to their associational ties, or of harassment directed against the organization itself. A pattern of threats or specific manifestations of public hostility may be sufficient." 424 U.S. at 74, 96 S.Ct. 612. Such evidence is to be specifically and directly related to a group or organization. Here, to the extent Doe could be characterized as a group or organization, Doe would be required to present evidence pertaining directly to R-71 signers and perhaps to the PMW donors.
To the extent Doe argues that it is permitted to rely on the historical evidence of others that it believes to be similarly situated to the R-71 signers, Defendants and Intervenors argue that Doe is largely mistaken given the circumstances of this case. In Buckley, the Court noted that "[n]ew parties 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." Id.
The R-71 signers, however, cannot be characterized as a group or an organization that could be considered new. The vote at issue took place nearly two years ago and petition signatures were being gathered well before the vote. Perhaps if the posture of this case were as it existed just before the vote at issue when the R-71 petition had just been submitted, Doe might persuade the Court that it is "new." However, it is now long past that point, and Doe has the ability to produce historical evidence from the past few years related to R-71. Doe also has the ability to draw on the experiences of those who financially supported PMW's efforts during the heat of the R-71 petition signing and prior to the vote. Therefore, Doe is limited to evidence from among its own number, R-71 petition signers. Doe has not supplied adequate authority to the contrary.
The Court turns now to Doe's historical evidence that may be considered relevant and admissible to establish that Doe would face a reasonable probability of threats, harassment, or reprisals if disclosure of the R-71 signers' information were required. The majority of evidence supplied by Doe includes individuals' claimed experience of threats, harassment, or reprisals that Doe contends is connected to R-71.
Long testified that he experienced harassment related to R-71 when he received a call from a purported transgender woman. Id. 20:1-9. Long claims the woman stated that she and her friends would picket the church or attend a morning service, but she affirmed they would conduct themselves appropriately. Id. 20:10-17.
Long also testified that he only received two calls about R-71 and that these were the only "harassing" events. Long testified that he did not receive other calls about R-71 or other types of "harassment" before or after the R-71 election. See, e.g., id. 28:2-5.
Hartwell testified in his deposition that one harassing incident involved two ladies that glared at him and one said "we have feelings too." This occurred while Hartwell was collecting signatures for R-71 at a grocery store. Id. 18:3-12 (also discussing that the comment appeared to shake an older lady up, who signed the petition anyway). Hartwell also testified about others who he believed harassed him about the R-71 petition. See, e.g., id. 19:1-20:25 (discussing a woman who approached him at the grocery and asserted she would bring her friends to the church, which did not occur); 21:10-22:16 (discussing a lady who took Hartwell and Hartwell's wife's picture while they were collecting signatures at a Wal-Mart and said she would post them on Facebook to enable her friends to see what the Hartwells look like; Hartwell is unaware if the Facebook posting occurred); 22:23-23:10 (discussing a customer at Wal-Mart that asked a manager to ask the Hartwells to leave; the manager did not ask them to leave). In none of the events described by Hartwell did he feel the need to contact the police. See id. 23-11-25:9.
Although Anishenko claims to have had two or three Post-It notes containing vulgar language placed on his vehicle, he does not know if it was related to R-71. Id. 28:21-30:24. Anishenko does not allege any other instances of threats, harassment, or reprisals. Id. 28:5-14.
Although Hutcherson points to many examples of phone calls his church has received regarding his stance on gay rights, he does not point to any calls or other methods of contact that relate specifically to R-71. Id. at 38:22-39:2, 46:4-22, 63:7-64:10, 66:3-13, 71:10-21, 75:22-76:19. Hutcherson is also not aware of any death threats, attacks, or harassment of his congregation as it relates to R-71. Id. 64:24-66:2, 48:3-8, 69:5-10.
D. Koslov testified regarding three incidents that he characterized as harassment: (1) a man directed expletives at him and pushed him; (2) a man mooned the group and threw garbage at the group from a van, no physical injuries; and (3) a woman approached him and said "we'll do everything to stop what you're doing" and a man said "we'll have your kids." Id. 30:20-32:1. D. Koslov did not claim to have been concerned for his safety regarding any of these incidents, and he did not inform the police. Id. 32:2-12, 33:8-20.
Though he is not concerned about testifying in this matter, Pisarchuk testified in his deposition that he felt harassed on a couple occasions. See id. 39:25-40:4. Specifically, he claims that passing motorists made offensive gestures and shouted insults but he was not threatened by these events. Id. 21:12-24:20, 47:20-25. He experienced being yelled at with profanity and his name was placed on a pro-gay rights website but neither of these events left him feeling concerned for his personal safety, and he did not call the police. Pisarchuk
Randall testified that he received death threats via a blog site; however, when asked to demonstrate where in the copy of the blog posting he believed a threat of his or another's life was made he could not do so without relying on assumptions. Id. 43:4-51:3 (finally conceding that no actual death threat was made on the website).
The Everett Herald (a local paper) published an article on Scott, which included the fact that she signed the R-71 petition. Id. 8:25-9:17, 10:25-11:18. The article contained her cell phone number and other contact information; notably, Scott did not receive any calls on her mobile phone regarding R-71. Id. 23:12-24-1, 96:1-16.
However, Scott's family did receive a phone call to its residence and the caller asked for Scott and said "I will kill you and your family," and then hung up the phone. Id. 17:19-18:18, 21:9-25. However, other than speculation, Scott does not attribute to R-71 this death threat or any other incident that she claimed could be considered harassment that occurred before or after the R-71 vote. See, e.g., id. 32:10-20, 37:16-20, 38:17-234, 40:21-41:11, 64:15-19. Additionally, she called the police about the death threat and it was handled without further incident. Id. 19:13-21:2, 30:10-31:24.
Stevens testified that she received several calls and two faxes in October of 2009 that she believed related to her support of R-71. Id. 26:17-28:13, 36:21-37:13, 46:12-48:2. Although she recalls the callers using vulgar language she does not recall being told her support of R-71 motivated the calls. Id. 29:8-30:17. None of these contacts made Stevens feel threatened, and she did not notify the police; she has not experienced any other harassment, threats, or reprisals due to her involvement
L. Stickney did not personally experience any physical harassment or violence during the campaign for R-71. Id. 48:16-49:9, 73:1-2. He did testify, however, that the PMW campaign received threatening and/or hostile emails. Id. 48:16-49:9, 73:1-2. He also testified that he felt threatened by a Bellingham, WA blogger who wrote "[w]hy can't we go to Arlington and harm his family?" Id. 53:2-24, 130:15-131:2. L. Stickney contacted the police who said they would investigate the matter; he never reported any further incidents regarding the blogger. Id. 56:20-58:2, 140:21-142:6. L. Stickney also received a "bothersome" phone call from a transgendered individual. Id. 86:9-87:15, 90:7-91:3, 124:22-125:1.
The only other time L. Stickney felt threatened was when his daughter informed him that a man took a photo of his home. However, L. Stickney cannot point to any facts other than speculation to contend that this event related to R-71. L. Stickney did not contact the police with regard to the unknown photographer.
Following the R-71 vote, Stickney has remained in the public's eye and occasionally received emails calling him a "rat" or a "homophobic bigot." Id. 83:17-85:21.
Struble testified about one incident he considered to be harassment. While handing out brochures on a ferry, one person receiving a brochure, crumpled it up and threw it back at Struble stating it was "a bunch of shit" and that he and his partner "had just as much right to get married" as did Struble. Id. 23:13-20. The person attempted to get other passengers to "vote" on the issue. Id. Eventually ferry workers stopped the person from following
The Court turns now to Doe's other evidence that comes in the form of written discovery. Defendants requested that Doe produce documents "relating to any alleged harassment, threat or retaliation relating directly or indirectly to R-71." Stafford Decl., Ex. S. Doe produced 1,542 pages of documents, which predominantly included newspaper articles regarding the California Proposition 8 campaign and the R-71 campaign in Washington.
Significantly, in his deposition, L. Stickney testified that he solicited R-71 signers to share any experiences they had with harassment. Stickney Dep. 30:3-35:8. If any responses were obtained by Doe, none were included within their production to Defendants' request.
Further, on August 15, 2011, the Court ordered Doe to identify for the Court:
Dkt. 250 at 3.
In response to the Court's order, Doe stated unequivocally that "[o]f course there is no such evidence." Dkt. 259 at 2 (stating that Doe's theory is that "[u]nless and until the identities of the signers are publically exposed, there will be no harassment of R-71 signers) (who signed the petition but did not make that fact public knowledge)."
The record in this case of what might be considered evidence of a reasonable probability of threats, harassment, or reprisals of actual R-71 signers has been limited by the evidence supplied by Doe. That evidence is comprised of experiences shared only by publicized individuals who have taken public stances on the R-71 issue and against same-sex marriage in general. See, e.g., L. Stickney Dep. This evidence, however, does not rise to the level or amount of uncontroverted evidence provided in cases wherein a group was able to obtain an as-applied exemption to otherwise permissible disclosure. See Brown and NAACP, supra. Further, Doe has failed to provide competent evidence or adequate authority from which this Court could conclude that disclosure of the R-71 petitions would result in similar experiences for those who signed the petition.
To begin with, it is undisputed that L. Stickney has a list containing the names and contact information of people he knows that signed the R-71 petition. This list was compiled prior to the vote at issue. Doe has, therefore, had ample opportunity and time to contact these individuals to obtain information about their experiences
Further still, PMW secured donations to finance the campaign for R-71. It is undisputed that between May and November of 2009, PMW reported 857 contributions to its cause. The names and other personally identifying information of these donors has been public knowledge for over two years. Doe has had ample time and opportunity to contact these individuals, some of which likely signed the R-71 petition in addition to donating to PMW's R-71 campaign. Even if none of these donors signed the R-71 petition, their experiences are far more closely related to the issues at hand than the random "evidence" supplied by Doe based on experiences of individuals around the country and the now stale experiences of those persons involved with Proposition 8. However, Doe has failed to supply sufficient, competent evidence that the publically known donors—as active supporters of R-71—have experienced sufficient threats, harassment, or reprisals based on the disclosure of their information in connection to R-71 that would satisfy the reasonable probability standard that Doe must meet in this case. The Supreme Court has previously rejected a similar as-applied challenge based on such a failure. Citizens United, 130 S.Ct. at 916 (rejecting Citizens United's as-applied challenge because it "has offered no evidence that its members may face similar threats or reprisals. To the contrary, Citizens United has been disclosing its donors for years and has identified no instance of harassment or retaliation."). The same can be said for PMW's donors.
As concluded above, the Court finds that Doe's as-applied challenge cannot meet the threshold required to obtain an as-applied exemption to the PRA in this case. Doe's claim would also fail under the standards— if considered distinguishable from the applicable standards discussed above— articulated by a majority of the concurring Justices in the Supreme Court's opinion in Doe, 130 S.Ct. 2811.
As discussed above, Justice Sotomayor, with whom Justice Stevens and Justice Ginsburg concurred, would require evidence of "serious and widespread harassment that the State is unwilling or unable to control." Justice Stevens, with whom Justice Breyer concurred, also stated that the Court would "demand strong evidence before concluding that an indirect and speculative chain of events imposes a substantial burden on speech." Doe, 130 S.Ct. at 2829. While Doe correctly points out that the concurrences in Doe are dicta, their opinions remain instructive on what may likely be the standard applied by the Supreme Court if it were to hear this case on appeal.
In any event, Justice Sotomayor and those Justices concurring in her opinion would require a showing of "serious and widespread harassment that the State is unwilling or unable to control." Doe, 130 S.Ct. at 2829 (emphasis added). To the extent this is a different standard than what is required to satisfy the reasonable probability standard from Buckley, it is more stringent. Otherwise, it is merely an
Applied here, the Court finds that Doe has only supplied evidence that hurts rather than helps its case. Doe has supplied minimal testimony from a few witnesses who, in their respective deposition testimony, stated either that police efforts to mitigate reported incidents was sufficient or unnecessary. Doe has supplied no evidence that police were or are now unable or unwilling to mitigate any claimed harassment or are now unable or unwilling to control the same, should disclosure be made. This is a quite different situation than the progeny of cases providing an as-applied exemption wherein the government was actually involved in carrying out the harassment, which was historic, pervasive, and documented. To that end, the evidence supplied by Doe purporting to be the best set of experiences of threats, harassment, or reprisals suffered or reasonably likely to be suffered by R-71 signers cannot be characterized as "serious and widespread."
In this case, Doe asked the Court to grant an exemption to the PRA based on a few experiences of what Doe believes constitutes harassment or threats, the majority of which are only connected to R-71 by speculation. If Doe's position were correct, then Doe would have prevailed on Count I's facial challenge to the PRA because anyone could prevail under such a standard in the context of referenda, which are often heated, regardless of the subject matter. Indeed, if a group could succeed in an as-applied challenge to the PRA by simply providing a few isolated incidents of profane or indecent statements, gestures, or other examples of uncomfortable conversations that are not necessarily even related or directly connected to the issue at hand, disclosure would become the exception instead of the rule.
Considering the foregoing, Doe's action based on Count II falls far short of those wherein an as-applied challenge has been successfully lodged to prevent disclosure of information otherwise obtainable under the PRA. Thus, the State's undoubtedly important interest in disclosure prevails under exacting scrutiny.
While Plaintiffs have not shown serious and widespread threats, harassment, or reprisals against the signers of R-71, or even that such activity would be reasonably likely to occur upon the publication of their names and contact information, they have developed substantial evidence that the public advocacy of traditional marriage as the exclusive definition of marriage, or the expansion of rights for same sex partners, has engendered hostility in this state, and risen to violence elsewhere, against some who have engaged in that advocacy. This should concern every citizen and deserves the full attention of law enforcement when the line gets crossed and an advocate becomes the victim of a crime or is subject to a genuine threat of violence. The right of individuals to speak openly and associate with others who share common views without justified fear of harm is at the very foundation of preserving a free and open society.
The facts before the Court in this case, however, do not rise to the level of demonstrating that a reasonable probability of threats, harassment, or reprisals exists as to the signers of R-71, now nearly two years after R-71 was submitted to the voters in Washington State.
Therefore, it is hereby
