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Referendum Petition Not Protected by First Amendment

On May 18, 2009, Senate Bill 5688 was signed by Washington's Governor, expanding the rights and responsibilities of state-registered domestic partners. On May 25, 2009, a referendum petition opposing the bill was submitted by Protect Marriage Washington (PMW) to the Secretary of State for verification and canvassing (Ref.71). On August 20, 2009, the Secretary of State received a public records request for the Ref. 71 petition from a number of the bill's supporters for the stated purpose of publishing the names of the petition signers on the internet. In an effort to avoid said publication, PMW filed an action on July 28, 2009, seeking a restraining order barring the public release of the petition, which was granted the following day. Then, on September 10, 2009, the district court granted a preliminary injunction enjoining the release of the Ref. 71 petition.

The primary argument Plaintiffs made on appeal involved whether the petition signatures were constitutionally protected speech violated by the Public Records Act (PRA). In this regard, it was determined that the district court erred in basing its analysis on the faulty premise that the petition constituted "anonymous political speech" while the opposite is actually true. It was further judged that the court erred in its application of "strict scrutiny" to the question, as opposed to the proper "intermediate scrutiny" that was called for. Consequently, after proper analysis utilizing the appropriate legal standard, the court concluded the PRA is Constitutional as applied to referendum petitions. Therefore, the preliminary injunction granted by the district court was reversed. See: Doe v. Reed, 586 F.3d 671, C.A.9 (Wash.), 2009.

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Related legal case

Doe v. Reed