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As Long as We Remember...

January 3, 2012

The Value of Anonymity

Farrell Keough

This is a court of law, young man, not a court of justice.  ~Oliver Wendell Holmes, Jr.


In a recent Hagerstown Herald-Mail news report, “Del. Neil C. Parrott, R-Washington, wants petitions for referendum in Maryland to be granted the same secrecy as an individual person’s vote.”


You may remember the issue surrounding the petition drive by Put simply, it allowed the voters the ability to decide upon the controversial Dream Act. This legislation (very generally) is the allowance for certain children of illegal immigrants to attend our state colleges as legal residents, thus allowing them to pay in-state tuition.


“Parrott said hundreds of petition signers contacted his group, angry that identifying information they used on the petitions was released upon request. They argued that signing a petition was akin to privately stepping into a voting booth.”


This position should prove quite interesting when it reaches the courts. In a similar suit from the West Virginia Record, “[t]he Justices [of the West Virginia Supreme Court of Appeals] reversed Circuit Judge David Sanders, who ruled that the definition of public record didn't fit the petitions because a private group circulated them.”


Let’s look at some of the postulates Justice Menis Ketchum puts forth in his opinion. “The public’s right to be informed concerning the affairs of their government lies at the very core of the principles of democratic governance.”


This is a very general claim and one which has been a part of the fabric of our nation. Freedom of the press, freedom to redress our government, and freedom of information in general have been privileges and rights enjoyed by our citizens since our founding.


This is further emphasized:


It is simply preposterous to assume that the legislature intended for the WVFOIA’s [West Virginia Freedom Of Information Act] definition of “public record” to drastically curtail the scope of public access to important records in government files because they were not “prepared” by a public body. Such a construction of the statute would devastate the public’s right to information about the conduct of the public’s business.


This is a persuasive argument. We have any number of discussions and decisions made in “closed session” without the public eyes of scrutiny addressing the underlying issues discussed. To add to that burden would “seem” to fly in the face of the intention for allowing open and transparent government.


Up to this point, we have what seem to be a reasonable set of arguments for requiring the names of petitioners to be available to the public after a formal request is made. But, as is generally the case with lawsuits, this is not where the issues end.


The West Virginia Circuit Court rendered its decision based on a number of other issues: the interpretation of the word “include,” holding that such a private petition is analogous to a “secret ballot,” and the “chilling effect” of allowing said petitioners’ names to be made public could have on the ability of citizens to petition the government. Rather than spend time focusing on the subtleties and minutia, we shall delve into the final point.


In contrast, in the case at bar, those who signed the zoning referendum petition did not advocate “a politically controversial viewpoint.” In fact, the zoning petition signers simply expressed the opinion that a recently-enacted county zoning ordinance should be subject to the vote of the electorate. Moreover, there is not a scintilla of evidence in the record that the more than four thousand people who signed the Jefferson County zoning referendum petition faced or would face any form of retaliation for merely advocating that an [sic] referendum be held.




It is obvious that the signers of a Jefferson County zoning referendum petitions did not “disclose [their] thoughts on a controversial issue.” Public disclosure of the zoning petition would be much “less likely to precipitate retaliation” than if signers were financially supporting a political candidate because signing the petition is “less specific, less personal, and less provocative” than contributing money to support an unpopular viewpoint. Surely, if the public identification of those making financial contributions in support of an unpopular viewpoint is consistent with the First Amendment, public disclosure of a non-partisan zoning referendum petition is in harmony with the important values underlying the First Amendment.


This is where Justice Ketchum goes so far awry as to ruin his own logic and arguments. The mere act of signing a petition requesting that legislation goes to a public vote is questioning the validity of said rule. Justice Ketchum bases this viewpoint on the fact that the petition did not contain language explicitly stating those who signed it were against the zoning. This is both a logical fallacy and an intentional misdirection of the facts at hand. Had the petitioners agreed with the zoning change, there would be no need to develop or sign a petition.


We are a nation of individual rights. Making a comparison that since only some 4,000 are involved, there is no legitimate basis to consider some form of retaliation might occur. Justice Ketchum also undermines his own point, (“there is not a scintilla of evidence… that the people who signed the… petition faced or would face any form of retaliation”) by stating that such retaliation could occur if money were involved.


Justice Ketchum compounds the problem by attempting to equate both money and an individual with a single issue comparison. As noted by the U.S. Supreme Court, monetary donations constitute a type of Freedom of Speech – to that end, Justice Ketchum’s analogy has a level of merit.


But the serious flaw of equating a single issue petition to an individual candidate discounts the validity of this argument. A candidate represents the constituency on a myriad of issues and decisions – to attempt to narrow such a representative to a single issue is an artificial argument on its face.


This argument is further debilitated when Justice Ketchum references the Free Speech Rights equated to an “anonymous” individual.


“[T]he speech in which Mrs. McIntyre engaged [was] handing out leaflets in the advocacy of a politically controversial viewpoint” 514 U.S. at 1519  [Anonymity], said the Court, “exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation-and their ideas from suppression-at the hand of an intolerant society.”[Id at 1524]


Allowing an individual or group to remain anonymous while redressing the government is well established and strongly shared – the Federalist and Anti-Federalist papers were written under pen names. The value of anonymity has been highly regarded since the founding of our nation.


When Delegate Parrott’s proposed legislation comes to the floor, it is hoped that the General Assembly thoroughly reviews the positives and negatives of allowing citizens to petition the government while maintaining their privacy.


Farrell Keough, is chairman Engaged Citizen


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