June 23, 2010

Doe v. Reed: When and What Will Happen?

There are eleven cases left for the Supreme Court to decide this term, but three of them relate to the "honest services" question. There will be decisions tomorrow and Monday. From what I'm hearing, the term is likely to end by Monday, so the opinion in Doe v. Reed should be out Thursday or Monday morning. (If it is tomorrow, don't expect me to blog about the case until afternoon. I am teaching at the AU program, then participating in a debate about Citizens United.)

What will the Court do? In preparing for my AU class I had a chance to review the oral argument transcript in the case, as well as the Ninth Circuit opinion in the case. It is important to remember that though the plaintiffs had two counts in the complaint, only the first one is currently before the Court. (From the 9th Circuit opinion: "Count I of the complaint alleges that, as applied to referendum petitions, the PRA violates the First Amendment because the PRA is not narrowly tailored to serve a compelling government interest. Count II alleges that, as applied to the Referendum 71 petition, the PRA is unconstitutional because 'there is a reasonable probability that the signatories... will be subjected to threats, harassment, and reprisals.'" The district court granted the injunction based only on Count 1, and the 9th and Supreme Courts are just reviewing the decision based on Count I.)

While predictions are dangerous things and I've been wrong before, here's my best guess as to what the Court is likely to do. There will be a six or seven Justice majority holding that even assuming the act of signing a referendum petition implicates First Amendment rights of speech and association, strict scrutiny does not apply to review of a law allowing public disclosure of such names. Under an intermediate-type scrutiny, the law will be said to be justified by governmental interests including making sure that the government is accurately determining whether referendums qualify for the ballot. The Court would then remand the case (perhaps even keeping a stay in place in the interim) to give plaintiffs a chance to prove harassment under Count II, reaffirming that such proof of harassment allows for as-applied exemptions to generally applicable disclosure rules.

If that's what the Court holds, I expect dissents from Justices Thomas and Alito, perhaps (but not likely) joined by the Chief Justice. (This is generally in line with both my earlier impressions as well as Tom Goldstein's read of the oral argument.)

We'll see soon enough what the Court does.

Posted by Rick Hasen at June 23, 2010 08:16 PM