As reported in the New York Times article about the Supreme Court holding that there was no general First Amendment protection of signatures for a referendum, “Justice Scalia, in his own concurrence, was the most skeptical of all. He said it was not clear that petition signers deserved any First Amendment protection.
“Harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance,” he wrote. “Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.””
If one is not prepared to suffer the opprobrium of others who disagree, one forfeits the right to pose questions for public resolution at the ballot box. A candidate for his party’s nomination to run for a US Senate seat raises all kinds of questions for us when he appears not to have campaigned for the nomination, only paid his filing fee, and gets more votes than anyone else. Yet he was not invisible and the press and public could have inquired about him from filing to election, they just didn’t. The contention in the court case was that the people signed to get an issue on the ballot should be protected from being publicly known, lest others hold them to account for signing.
The sad aspect of this and the senate nomination controversy is two-fold: if the press had done its job on the nominee, he would have been held accountable for his views and if the names of the petition signers are now made public, the resulting debate, in our current climate, may require both “Civic” and physical courage. The referendum issue concerned gay rights.