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Openness should govern public petitions, too

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Gene Policinski
February 7, 2009

As Valentine’s Day approaches, let’s consider a rarely discussed First Amendment freedom—the right of petition—by recalling a centuries-old question posed by those Shakespearean lovers Romeo and Juliet: “What’s in a name?”


Ms. Capulet’s poignant question to Mr. Montague came as the threat of violence loomed over their star-crossed love affair. By contrast, there’s no love lost in two contemporary and dramatic disputes over naming names, in Tennessee and California—but both disputes also involve concerns over potential retaliation and violence.


In Tennessee, Nashville voters rejected a proposed ordinance variously called “English Only” or “English First” that would have mandated local government to do business only in that language.


In California, voters approved “Proposition 8,” overturning a state Supreme Court ruling allowing gay marriage. Supporters of the two proposals sought to keep confidential some or all of the names of donors to campaigns backing the measures. They cited potential dangers, including individuals’ being accosted at home and receiving telephoned death threats, as well as business boycotts and a possible “chilling effect” on supporters of like causes in the future.


In both instances, officials ultimately determined that the names would be made public, with the particularly bitter California fight reaching a federal courtroom. In a ruling Jan. 29 on a request for a preliminary injunction to block release of the names, U.S. District Judge Morrison England Jr. said advocates failed to show a direct connection to violent reaction, and that “if ever there needs to be sunshine on a political issue, it’s with a ballot measure.”


The First Amendment—with regard to religious liberty, free press and speech, and the freedoms to assemble and to petition the government—protects us against government interference. But it does not shield us from the results of our actions, be they the adulation of approving admirers or the growls and scowls of angry dissenters.


The history of petition pre-dates even the Bard’s 16th century play, having roots in Magna Carta in 1215, which gave voice to nobles who would challenge the British crown. Still, it’s likely that more people in the United States can recite some bit of Shakespeare’s work than name the right to “petition the government for a redress of grievances.” In the latest State of the First Amendment survey by the First Amendment Center, just 3 percent could identify petition as part of the amendment—and that was the least-known freedom’s highest mark in the survey’s 11-year history.


Petition also provides a constitutional cloak for lobbying—hardly an activity that Americans want to see done in secrecy. But if any process in our democracy demands openness, it’s the process by which a group of citizens can circumvent elected officials and government bodies to take a legislative proposal directly to the rest of us.


Judge England touched on why disclosure is so important: Many campaign committees have vague names, obscuring their intent. The public has no way of knowing who is behind the campaigns, he said, unless they can see who is giving money.


As it happens, in both Proposition 8 and English Only, substantial support came from nonlocal contributors: In Nashville, of the $89,000 raised by backers of the proposal, $82,500 came from a Virginia-based group, Pro English. Much of the post-election debate in California has been about the role that out-of-state political and religious groups played in swaying Golden State voters.


As a 1982 U.S. Supreme Court decision—Brown v. Socialist Workers ’74 Campaign—provides, such names may be kept from the public only when there is an immediate and real threat of violence or retaliation. But that narrow exception should not apply to the mere concern about negative reaction or because of theoretical danger.


Funding and circulating petitions to place a proposition on a ballot, like speaking out on matters of public interest at town hall meetings or in public squares, are this nation’s glowing examples of grass-roots democracy in action. Doing so while hiding under a cloak of secrecy diminishes the petition process and the glow.


Gene Policinski is vice president and executive director of the First Amendment Center, 555 Pennsylvania Ave., N.W., Washington, D.C. 20001. Web: www.firstamendmentcenter.org. E-mail: gpolicinski@fac.org.

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