Doe v. Reed

                  Cite as: 

565 U. S. ____

 (2011)            1

                      ALITO, J., dissenting

SUPREME COURT OF THE UNITED STATES
                          _________________

                           No. 11A501
                          _________________


  JOHN DOE #1, ET AL. v. SAM REED, WASHINGTON 

         SECRETARY OF STATE, ET AL. 

             ON APPLICATION FOR INJUNCTION
                      [November 21, 2011]

   The application for an injunction presented to JUSTICE
KENNEDY and by him referred to the Court is denied.
JUSTICE KAGAN took no part in the consideration or deci-
sion of this application.
   JUSTICE ALITO, dissenting from denial of injunction.
   In Doe v. Reed, 

561 U. S. ___

 (2010), the Court rejected
petitioners’ facial challenge to the Washington law author-
izing the disclosure of referendum petitions but assured
petitioners that the disclosure could be blocked if a proper
party could show that compelled disclosure would result in
“threats, harassment, or reprisals.” Id., at ___ (slip op., at
12). Today’s order reveals that this assurance was empty.
   On remand, the District Court rejected petitioners’ as-
applied challenge, relying primarily on a highly question-
able interpretation of our precedents. The District Court
reasoned that only a select few organizations—what
the court termed “minor” political parties and “fringe”
groups—may challenge the disclosure of the names of
persons who sign a referendum petition. Case No. C09–
5456 (WD Wash., Oct. 17, 2011), pp. 13–15. If a referen-
dum succeeds or nearly succeeds (or if the referendum
supports a position that has not been historically vilified),
then, according to the District Court, disclosure of the
names of the citizens who signed the petition cannot be
shielded no matter how strong the evidence of threatened
2                       DOE v. REED

                     ALITO, J., dissenting

retaliation or how severe the nature of the threats. Id., at
15. Whether this is a correct interpretation of our cases
presents an important question that merits serious appel-
late review.
  The alternative basis for the District Court’s holding—
that petitioners did not present sufficient evidence of
threatened harm—also presents an important legal issue,
namely, the type and quantity of proof that persons object-
ing to disclosure must adduce. As Judge N. R. Smith
observed below, petitioners adduced evidence that some
supporters of the referendum “received death threats,”
“had their children threatened,” and suffered various
indignities, No. 11–35854 (CA9, Nov. 16, 2011), p. 8 (dis-
senting opinion), but according to the District Court, this
was not enough. Whether the standard of proof applied by
the District Court provides any real protection for persons
who are threatened with retaliation for asserting their
First Amendment rights is an important issue that merits
considered appellate review.
  There has been no such review in this case. When
petitioners took an appeal to the Ninth Circuit, the panel
denied the stay application over Judge Smith’s protest
that the majority had “race[d] to decide the case at [a]
preliminary stage based on incomplete information and
without even reviewing the record.” Id., at 3.
  This Court now takes a similar approach. Particularly
since the referendum at issue went down to defeat more
than two years ago, the Court’s haste is hard to under-
stand. I would grant a stay at least until the Court has
had an opportunity to review the record and to consider
the parties’ arguments.