All the Supreme Court’s Friends (And a Question: Why Isn’t the Seattle Times One of Them?)

UPDATE: This original version of this post wrongly characterized the Seattle Times Company’s involvement in an amicus brief, filed by prominent news organizations, that urges the Supreme Court to uphold a broad interpretation of Washington State’s Public Records Act. The Seattle Times Company was involved in creating and filing that amicus brief, and is clearly listed as a supporter of the brief in the document originally linked in this post. We regret the error.

The New York Times had a good article the other day that included all kinds of fun links to the amicus—or “friend of the court”—briefs that have been filed with the U.S. Supreme Court ahead of next Wednesday’s big hearing, in which Washington Attorney General Rob McKenna will try to defend our state’s Public Records Act against people who want to keep secret the names of those who got R-71 on the ballot last November (in a failed attempt to roll back domestic partnership rights).

The most interesting brief was filed by a majority of the nation’s most prominent mainstream news organizations, including the Seattle Times Company, the New York Times Company, Dow Jones & Co, the Washington Post Company, the Associated Press, Bloomberg L.P., and other “news media professional associations, both nationally and in the State of Washington.” That includes

The filers fear that a ruling against McKenna’s interpretation of the Washington Public Records Act (McKenna believes that the names of those who signed R-71 should be released) could have far-reaching effects, including setting a precedent for the gutting of other public information laws around the country. Here’s what the print media giants say about the “petitioners,” meaning the people who want the R-71 signers’ names kept secret:

The Petitioners’ disregard for—indeed, disparagement of—the value of public records statutes would, if accepted by this Court, threaten the ability of the press to provide accurate and timely news coverage about government actions and matters of public importance… Petitioners ask this Court to do what no court, at any level, has ever done: declare that a public records statute violates the First Amendment “right to privacy” of an individual who is named in a disclosable public record.

Interestingly enough, the Seattle Times Company, Washington’s last remaining print media giant, did not, to my knowledge, file a similar brief—though it’s been a huge proponent of open public records in the past. It didn’t sign onto the New York Times et al brief either. I’ve asked why, but haven’t yet received a response from the Seattle Times Company.

Over on the petitioner side of things, The American Civil Rights Union (ACRU), a legal policy organization founded by a former Reagan adviser, has written a particularly inflammatory brief. It argues that releasing the names of the R-71 petition signers would violate the signers’ free speech rights, and leave them open to harassment and intimidation by a (highly theoretical) squadron of gay rights goons.

Specifically, the ACRU argues that the experience of Proposition 8 supporters in California supports this fear, warning: “There must be no place in our democracy for Brown Shirts seeking to force their way through thuggery and violent intimidation.” (It’s worth noting that another brief, written by four political scientists, reports that although more than a million names of Proposition 8 petitioners have been posted online in California, “there is no evidence that any of these signers has faced any threat of retaliation or harassment by reason of that disclosure.”)

The ACRU argument does seem flimsy (a Nazi Germany comparison, really?), but the NYT reports that the Supreme Court could be sympathetic to those overblown concerns. Justice Anthony M. Kennedy recently wrote that actions like disclosing information about petition signers could be considered unconstitutional “if there were a reasonable probability that the group’s members would face threats, harassment or reprisals if their names were disclosed.”

And bear in mind, that’s from the court’s swing vote “moderate.” If the petitioners can convince Kennedy that there is in fact such a threat, Attorney General Rob McKenna may have a tougher fight than he anticipates next Wednesday.