In Doe #1 v. Reed, (9th Cir., Oct. 23, 2012), the U.S. 9th Circuit Court of Appeals, in a 2-1 decision dismissed as moot a suit by Protect Marriage Washington to enjoin the state of Washington from releasing under the Public Records Act the names referendum petition signers. At issue was the names of individuals who signed petitions supporting a referendum to overturn a state law that expanded the rights of domestic partners. In 2010 the U.S. Supreme Court rejected a facial challenge to the Public Records Law, but left open the possibility of an as-applied challenge if it could be shown that the release of names was undertaken to encourage harassment of signers. (See prior posting.) In yesterday's decision, a majority of the 9th Circuit panel held that the court cannot grant effective relief because the petitions are already widely available in searchable form on the Internet.
Judge Smith filed a concurring opinion concluding that the case is not moot because the court can prevent continued disclosure. However, he concluded that on the merits plaintiffs had not shown a 1st Amendment infringement. [Thanks to Alliance Alert for the lead.]
