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Thursday, June 24, 2010

The First Amendment, Direct Democracy, and the Risks of Technology: Today's Court Decision in Doe v. Reed

Rick Pildes

Today's decision in Doe v. Reed should be understood as the Court's first foray into the way changing technologies, the internet in particular, should affect the potential conflicts between democracy, the First Amendment, political participation, and privacy. And in my view, the Court's first step in this area got the matter just right; the Court established the appropriate general principles for this area, acted with a realistic awareness of the way new technologies pose new risks to constitutional values, and properly decided to leave for future cases the application of these general principles to what will inevitably be highly fact-dependent contexts.


1. The most important aspect of the opinion is the Court's holding that signing a petition to get a referendum or initiative on the ballot is itself First Amendment expressive political activity. This is right and important, though the State argued that signing a petition was a form of conduct, not speech, because petitions potentially have legal effects: with enough signatures, they put measures on the ballot to be voted on. But as Chief Justice Roberts concluded for the Court, the act of signing is rather obviously a form of political expression, even if that expression can also have legal consequences.

2. Just as important, the Court concluded that First Amendment interests are implicated when the state forces the disclosure of the content of this political expression. Justice Scalia vehemently dissents on this point, and his dissent reveals the profund tension between originalism and modern constitutional doctrine. His dissent essentially argues that there is no constitutional right to vote in secret; the secret ballot is not constitutionally required. In a historical sense, Justice Scalia is right; he marshalls the history to remind us that voting was not done in secret before the late 19th century, when the "Australian" or secret ballot was created -- and which immediately swept through all the states and became the standard practice of American democracy. But Justice Scalia doesn't confront the fact that the right to vote itself was not treated as a constitutional right until the 1960s; once the Court recognizes voting as a right, the Court inevitably is going to have to decide what the entailments of that right are -- and whether they include features like the right to vote in secret. Although the Court's opinion does not directly engage this question, I read the other eight Justices as essentially rejecting Scalia's originalism on this point -- that is, I read the Court as implicitly basing its decision on the premise that the secret ballot has indeed, in essence, become a constitutional right (perhaps a right that could be overcome in some extraordinarily compelling context, like other rights), but a right nonetheless.

3. Next, the Court recognizes that there are risks associated with disclosure of political expression, in our modern internet age, that did not exist to the same extent a generation ago. The ease with which information can be publicly collected, aggregated, and disseminated about people's political activity, such as signing a petition, makes it easier for those who disagree with (or despise) that activity, to harrass and retaliate against those with whom they disagree. There are news stories that suggest some of this has happened in recent years, though I cannot vouch for the accuracy of those stories. Justice Scalia's response is: get tougher. That's just the price of politics. But the Court chooses neither to ignore the reality that there might be real risks of retaliation today, given the ease of information spreading. And contrary to Justice Scalia, the Court concludes that no one should have to pay a price -- in the form of being fired, for example -- for expressing their political views, unless the government has strong reasons that justify the disclosure. I recall hear the stories of blacks who lined up to register to vote in Mississippi in the 1950s and who were then fired from their jobs when white employers learned of their standing in line. The Court then wisely leaves it to lower courts and future cases to decide whether, in any particular context, there is just a high risk of retaliation, harrassment and the like to override the state's legitimate interest in disclosure in particular contexts.

4. The most disappointing aspect of the Court's first confrontation with this issue is the apparently looming and familiar "liberal/conservative" divide on these issues, even though the Court comes out 8-1 on the judgment in today's case. This does not strike me as an issue that ought to divide the Court that way. Since the Court agrees on the general principles that should frame the analysis here, the incipient differences seem to be about factual issues -- how seriously to take the risks of harrassment in future cases, and how much burden the State ought to bear to find less restrictive means to achieve its legitimate ends. Those do not seem reasons the Court ought to divide in a predictable way and I hope this does not become an area in which the Court quickly settles in to yet another relatively stable camps of view.

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