(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 petition with the secretary of state that contains 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.

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 encourage voters to reject SB 5688. Protect Marriage Washington submitted the petition with more than 137,000 signatures to the secretary of state, and after conducting the verification and canvassing

process required by state law, the secretary determined that the petition contained sufficient signatures to qualify the referendum (R–71)

for the ballot. Respondent intervenors invoked the Washington Public 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 Referendum 71 petition because there is a reasonable probability that the

signatories . . . will be subjected to threats, harassment, and reprisals.” 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 general, 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 follow—an injunction barring the secretary of state from releasing referendum petitions to the public—reach beyond the particular circumstances 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 referendum 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 expresses 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 context is irrelevant to the nature of this Court’s First Amendment review. 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 substantial latitude to enforce that regulation. Also pertinent is the fact

that the PRA is not a prohibition on speech, but a disclosure requirement that may burden “the ability to speak, but [does] ‘not prevent anyone from speaking.’ ” Citizens United v. Federal Election 

Comm’n, 558 U. S. ___, ___. This Court has reviewed First Amendment challenges to disclosure requirements in the electoral context 

under an “exacting scrutiny” standard, requiring “a ‘substantial relation’ between the disclosure requirement and a ‘sufficiently important’ governmental interest.” Id., at ___. To withstand this scrutiny, 

“the strength of the governmental interest must reflect the seriousness 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 unconstitutional 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 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. 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 withstand First Amendment scrutiny. They argue that disclosure is not 

necessary because the secretary of state is already charged with verifying 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 disclosure can help cure the inadequacies of the secretary’s process. Disclosure 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 governmental 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 political 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 petition signers. That, plaintiffs argue, would subject them to threats,

harassment, and reprisals.

The problem for plaintiffs is that their argument rests almost entirely on the specific harm that would attend the disclosure of information on the R–71 petition. But the question before the Court at 

this stage of the litigation is whether disclosure of referendum petitions 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 judgment. 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, Washington, 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 Washington voters must sign a petition to place such a referendum 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 canvassing, 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 referendum petitions.

This case arises out of a state law extending certain

benefits to same-sex couples, and a corresponding referendum petition to put that law to a popular vote. Respondent 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 particular 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 pending 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 contains 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 signature, 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 submitted to the secretary of state a petition containing over

137,000 signatures. See 586 F. 3d, at 675; Brief for Respondent Washington Families Standing Together 6. The 

secretary of state then began the verification and canvassing 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 required to place the referendum on the ballot. Sam Reed, 

Washington Secretary of State, Certification of Referendum 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 copying. §42.56.070(1) (2008). The Act defines “[p]ublic record” 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 referendum petitions are “public records.” Brief for Respondent 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 Government (WCOG) and Washington Families Standing

Together (WFST), two of the respondents here. 586 F. 3d, 

at 675. Two entities, WhoSigned.org and KnowThyNeighbor.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 District 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 applied to referendum petitions.” Id., at 16. Count II of the 

complaint alleges that “[t]he Public Records Act is unconstitutional as applied to the Referendum 71 petition because 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 Circuit 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 asserts 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 limited. 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 asapplied 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 application 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 circumstances 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 agnostic 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 legitimizing 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 quotation 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 expressive 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 viewpoint, arguing that one purpose served by disclosure is to

allow the public to engage signers in a debate on the merits 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 pertinent to our analysis is the fact that the PRA is not a prohibition 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 scrutiny.” 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] survive 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 Constitutional 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 Amendment rights: (1) preserving the integrity of the electoral

process by combating fraud, detecting invalid signatures,

and fostering government transparency and accountability; 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 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.” 

ACLF, 525 U. S., at 191. The State’s interest is particularly 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 government.” 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 interest 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 necessary because the secretary of state is already charged with 

verifying and canvassing the names on a petition, advocates and opponents of a measure can observe that process, 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 signatures,” 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 underlying 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 signatures 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 substantially 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 interests 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 intimidation. 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 petition sponsors in this case, see App. 9.

In related contexts, we have 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.” 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 referendum 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 “concern 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 received 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; unemployment 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 burdens 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 disclosure cases—that upholding the law against a broad-based 

challenge does not foreclose a litigant’s success in a narrower 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 Washington 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 significantly 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 reasonable 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); McConnell 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 disclosure 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 exemption 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 disclosure requirement might chill the willingness of voters

to sign a referendum petition (and thus burden a circulator’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 information 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 exemption from the disclosure requirement well before circulating 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, harassment, 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 asapplied 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 consideration 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 “specific 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 asapplied 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 Amendment rights. The widespread harassment and intimidation 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 harassment. 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 meaningful protection for the First Amendment rights of persons 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 supporters—an opportunity that was pretermitted because of 

the District Court’s decision to grant a preliminary injunction 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 threatening 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 granting 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 referendum process by detecting fraudulent and mistaken signatures. 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 signatories provides the voting public with “insight into

whether support for holding a vote comes predominantly 

from particular interest groups, political or religious organizations, 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 information, 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. Forum 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 picture 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 legitimate 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 addresses, and Internet aliases. Once again, permitting the

government to require speakers to disclose such information 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 facilitating 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 Internet the names and addresses of all those who signed Referendum 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, pictures 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 information posted on a social networking site, and newspaper 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 interest in preserving the integrity of the referendum process

and that public disclosure furthers that interest by helping 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 constitutional 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 information. 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 specifically. See Wash. Rev. Code §42.56.001 et seq. Indeed, if 

anything, Washington’s referenda and initiative laws

suggest that signatory information should remain confidential: 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, addresses, 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) (declaring 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 signing 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 dramatically 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 archiving 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 referendum petition. And given that the secretary maintains a

“centralized, uniform, interactive computerized statewide

voter registration list that contains the name and registration 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 ensuring the accuracy and legitimacy of each signature. 

Additionally, using the digitized version of the referendum 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 information 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 Washington 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 political 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 dissenting 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 “regulation 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. Anderson, 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 integrity of the electoral process, preventing corruption, and 

sustaining the active, alert responsibility of the individual

citizen in a democracy for the wise conduct of government.” 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 exempts 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 constitutionally 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 requirements . . . ‘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 inherently public. To qualify a referendum for the ballot, citizens 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 submit 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 signing. Disclosure of the identity of petition signers, moreover, 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 referendum processes, the Court rightly rejects petitioners’ constitutional 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 harassment from nonstate actors, a State’s important interests 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 expressive interests implicated by the act of petition signing are 

always modest, I find it difficult to see how any incremental disincentive to sign a petition would tip the constitutional 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 signers, or in the rare circumstance in which disclosure poses 

a reasonable probability of serious and widespread harassment 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 implement 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 disclosure 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 burden 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 generally. Regardless of whether someone signs a referendum 

petition, that person remains free to say anything to anyone 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 Hampshire, 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 “interactive 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 justification: an interest in deterring and detecting petition fraud.2 

Given the pedigree of this interest and of similar regulations, the State need not produce concrete evidence that 

the PRA is the best way to prevent fraud. See Crawford v. 

—————— 

1Although 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). 2Washington 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 judgments will vary up or down with the novelty and plausibility of the justification raised”); see also Timmons, 520 

U. S., at 375 (STEVENS, J., dissenting) (rejecting “imaginative [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 challenge. 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 

—————— 

3There 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 challenge 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 regulation 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 Constitution protects “freedom of speech.” Amdt. 1; see also McIntyre, 514 U. S., 

at 336 (“The question presented is whether [a] . . . statute that prohibits 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. 5A rare case may also arise in which the level of threat to any individual 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. 

—————— 

6See, e.g., Bates v. Little Rock, 361 U. S., at 521–522, 523–524; Buckley 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 referendum 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 McIntyre v. Ohio Elections Comm’n, 514 U. S. 334 (1995). 

There, with neither textual support nor precedents requiring 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., dissenting). The Court held that an Ohio statute prohibiting 

the distribution of anonymous campaign literature violated the First and Fourteenth Amendments. 

Mrs. McIntyre sought a general right to “speak” anonymously 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 interestbalancing. Our Nation’s longstanding traditions of legislating and voting in public refute the claim that the First 

Amendment accords a right to anonymity in the performance of an act with governmental effect. “A governmental 

practice that has become general throughout the United 

—————— 

1Plaintiffs 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 information 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 concurring 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 protected 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 constitutionality.” 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 Washington 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 voters 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 measure at issue.2 

—————— 

2The 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 lawmaking power in the United States has traditionally been

public.

The public nature of federal lawmaking is constitutionally 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. 

3The 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. 4The 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 accountability was obvious. “[A]s to the votes of representatives 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 grievances,” 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 petitioner’s name (when large groups were not involved), his

request, and what action Congress had taken on the petition 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 Representatives, 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 modeled 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 initiative and referendum in the United States analogized the

Swiss practice to the town meeting, because both “required 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. Takushi, 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 system as follows: 

“‘The election judges, who were magistrates, sat upon 

a bench with their clerks before them. Where practicable, it was customary for the candidates to be present 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 enrolled. 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, Structure, 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 accepted 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 methods multiple times. New York’s 1777 Constitution, for 

example, explicitly provided for the State to switch between methods. Art. VI. Kentucky’s 1792 Constitution

required paper ballots, Art. III, §2, but its 1799 Constitution required viva voce voting, Art. VI, §16. The different 

voting methods simply reflected different views about how 

democracy should function. One scholar described Virginia’s and Kentucky’s steadfast use of viva voce voting

through the Civil War as follows: “[I]n the appeal to unflinching 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 expression 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, making 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 prohibiting 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 contradicts 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 constitutional 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’ prohibiting anonymous electioneering was sufficient for me to

reject the First Amendment claim to anonymity in McIntyre, 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 selfgovernance. 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, campaigns 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 participatory democracy,” Purcell v. Gonzalez, 549 U. S. 1, 4 (2006) 

(per curiam), so too is citizen participation in those processes, which necessarily entails political speech and association under the First Amendment. In my view, compelled 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. 

—————— 

1Generally 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 amendment. 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 Washington’s Election Code, regulates the referendum and initiative 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 canvassing and verification. See, e.g., §§29A.72.130, 29A.72.230 

(2008). Petitioners do not contend that these requirements 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 referendum 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. Washington 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 violates 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 challenge 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 initiative, 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. Moreover, 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 implement” 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 Respondent Reed 59; see also App. 26 (listing six completed requests 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 challenge here. For purposes of this case, I will assume that to

prevail, petitioners must satisfy our most rigorous standard, 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 expresses” a “political view” by signing a referendum petition. Ante, at 5. The Court also rightly rejects the baseless 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 implications 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 Control/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 associations,” 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 substantial relation between the information sought and an

overriding and compelling state interest.” Id., at 91–92 

(internal quotation marks, citations, and brackets omitted). 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., concurring 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: preserving 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 regulating 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 electoral context: the signature-gathering stage of a referendum 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 initiative 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 instances of initiative-related fraud, see Brief for Respondent 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 compelling. 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, Colorado 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’ complaint in this case demonstrate as much.

As Washington explained during oral argument, after

the secretary of state receives signed referendum petitions, 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 requests 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 information 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 subjecting the name and address of each signer to wholesale 

public disclosure. The secretary could electronically crossreference 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 Washington 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 quotation marks omitted).3 

An electronic referendum database would also enable 

the secretary to determine whether multiple entries correspond 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 “forgery” 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” 

—————— 

2Under Washington 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 registration information of every legally registered voter in the state.” Wash. 

Rev. Code §§29A.08.651(2)–(3) (2008). 3See §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 evaluate 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 Washington 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 process.” 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 under §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, plainEnglish 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, Washington 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 emphasizing 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 Colorado “can and d[id] meet” its “substantial interests in 

regulating the ballot-initiative process.” Id., at 204 (emphasis 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 referendum 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 dispatched, since this Court has already rejected it in a similar 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 information.” 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 information does not justify a state requirement that a

writer make statements or disclosures she would otherwise 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 anonymous. They know it is anonymous. They can evaluate 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 measures. 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 charter-school referendum but low for an unemployment insurance referendum, or that a library or land-use referendum 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 disclosing 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 referendum signer may be more willing to disclose to the general

public his political association with persons signing certain referendum measures than his association with others. 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 electronic database or additional observers. And the forgery

prohibition and other existing requirements in Washington 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 transparency and a signer’s individual First Amendment interest 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’ constitutional 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 inevitable, 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 asapplied challenge before filing the proposed measure, or 

simultaneously with its filing? Because signaturegathering 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 reasonable 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 necessarily 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 signaturegathering has started on his referendum to file an asapplied 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 asapplied 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 suffices to satisfy this apparently more relaxed, though perhaps 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 “questionable” “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 citizens . . . 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 disclosure 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 referendum measures are so benign that the fact of public disclosure 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 Suffrage Association,” which “saw the initiative and referendum 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 (hereinafter Salt Lake Tribune). But Utah law provides that

“[i]nitiative packets,” which contain the names and addresses (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 retribution and retaliation in a State where Republicans currently 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 delegation 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 activity” with respect to referendum and initiative petitions. 

Colorado Republican, 518 U. S., at 634 (THOMAS, J., concurring 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., concurring in part and dissenting in part). Our cases have 

long recognized this reality;4 as the Court recently reiterated, 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, 

—————— 

4See, e.g., NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 462 

(1958) (noting the “hardly . . . novel perception that compelled disclosure 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 association 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, humiliation, 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 Washington’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 verification 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 question 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 protected First Amendment rights by subjecting their referendum-petition signatures to on-demand public disclosure.

In my view, they need not.