Resource: Doe #1 v. Reed

Plaintiffs sought a preliminary injunction in a Washington federal district court to prevent the state of Washington from making referendum petitions available under the state's Public Records Act ("PRA"). In response to a petition titled "Preserve Marriage, Protect Children," plaintiffs attempted to prevent the release of the names and contact information of individuals who signed the petition. The plaintiffs argued that, as applied to referendum petitions, the PRA violates the First Amendment because it is not narrowly tailored to serve a compelling government interest. The district court granted the injunction. On appeal, the U.S. Court of Appeals for the Ninth Circuit reversed holding that the PRA does not violate the First Amendment when applied to require public disclosure of petitions calling for a referendum. The court reasoned that even assuming that signing a petition qualifies as expressive conduct, and that application of the PRA's public access provision has an incidental effect on a referendum signer's speech by deterring some would-be signers, the appropriate level of constitutional inquiry is intermediate scrutiny, not strict scrutiny. Under intermediate scrutiny, the interests asserted by the state are sufficiently important to justify the law's incidental limitations of referendum petition signers' First Amendment freedoms.