JOHN DOE1 v. REED

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN DOE #1, an individual; JOHN 

DOE #2, an individual; PROTECT

MARRIAGE WASHINGTON,

Plaintiffs-Appellees,

v. No. 09-35818

SAM REED, in his official capacity  DC No.

as Secretary of State of CV 09-5456 BHS

Washington; BRENDA GALARZA, in

her official capacity as Public

records Officer for the Secretary of

State of Washington,

Defendants-Appellants. 

JOHN DOE #1, an individual; JOHN 

DOE #2, an individual; PROTECT

MARRIAGE WASHINGTON,

Plaintiffs-Appellees,

v.

SAM REED, in his official capacity No. 09-35826

as Secretary of State of  DC No.

Washington; BRENDA GALARZA, in CV 09-5456 BHS

her official capacity as Public

records Officer for the Secretary of

State of Washington,

Defendants,

and 

14587

14588 DOE #1 v. REED

WASHINGTON COALITION FOR OPEN 

GOVERNMENT, 

Defendant-intervenor-Appellant. 

JOHN DOE #1, an individual; JOHN 

DOE #2, an individual; PROTECT

MARRIAGE WASHINGTON,

Plaintiffs-Appellees,

v.

WASHINGTON FAMILIES STANDING No. 09-35863

TOGETHER,

Intervenor-Appellant,  DC No.

CV 09-5456 BHS

SAM REED, in his official capacity OPINION

as Secretary of State of

Washington; BRENDA GALARZA, in

her official capacity as Public

records Officer for the Secretary of

State of Washington,

Defendants. 

Appeals from the United States District Court

for the Western District of Washington

Benjamin H. Settle, District Judge, Presiding

Argued and Submitted

October 14, 2009—Pasadena, California

Filed October 22, 2009

Before: Harry Pregerson, A. Wallace Tashima, and

N. Randy Smith, Circuit Judges.

Opinion by Judge Tashima

DOE #1 v. REED 14591

COUNSEL

James Bopp, Jr., Bopp, Coleson & Bostrom, Terre Haute,

Indiana, for the plaintiffs-appellees.

William B. Collins, Deputy Solicitor General, Robert M.

McKenna, Attorney General of Washington, Olympia, Wash-

ington, for the defendants-appellants.

Leslie R. Weatherhead, Witherspoon, Kelley, Davenport &

Toole, Spokane, Washington, for intervenor-appellant Wash-

ington Coalition for Open Government.

Amanda J. Beane, Perkins Coie, Seattle, Washington, for

intervenor-appellant Washington Families Standing Together.

OPINION

TASHIMA, Circuit Judge:

Washington’s Secretary of State and Public Records Offi-

cer (together, the “State”) and Intervenors, Washington Coali-

tion for Open Government (“WCOG”) and Washington

Families Standing Together (“WFST”), appeal a decision of

the district court granting Plaintiffs, Protect Marriage Wash-

ington (“PMW”) and two individual signers of the Referen-

dum 71 petition, a preliminary injunction prohibiting the State

from making referendum petitions available in response to

requests made under Washington’s Public Records Act (the

“PRA”). Wash. Rev. Code § 42.56.001 et seq.

Under the Washington Constitution, a referendum must be

ordered on a bill passed by the legislature if a specified per-

centage of voters sign a petition for a referendum. The Refer-

endum 71 petition calls for a statewide election on Engrossed

Second Substitute Senate Bill 5688 (“SB 5688”), which

14592 DOE #1 v. REED

would expand the rights and responsibilities accorded state-

registered domestic partners. The PRA makes public records,

including referendum petitions, available for public inspec-

tion. In seeking a preliminary injunction, Plaintiffs argued

that, as applied to referendum petitions, the PRA violates the

First Amendment. We have jurisdiction over this appeal from

the district court’s grant of a preliminary injunction under 28

U.S.C. § 1292(a)(1). We reverse.

BACKGROUND

I. Washington’s Public Records Act

The PRA requires state agencies to make public records

available for public inspection and copying. Wash. Rev. Code

§ 42.56.070. It provides that “[i]n the event of conflict

between the provisions of [the PRA] and any other act, the

provisions of [the PRA] shall govern.” Wash. Rev. Code

§ 42.56.030. Although the PRA contains some exemptions,

none applies to referendum petitions. The PRA was enacted

through the initiative process and includes its own rule of con-

struction:

The people insist on remaining informed so that they

may maintain control over the instruments that they

have created. This chapter shall be liberally con-

strued and its exemptions narrowly construed to pro-

mote this public policy and to assure that the public

interest will be fully protected.

Wash. Rev. Code § 42.56.030.

II. Washington’s Referendum Process

Under the Washington Constitution, although legislative

authority is vested in the state legislature, the people reserve

to themselves the power to reject any bill or law through the

DOE #1 v. REED 14593

referendum process. Wash. Const., art. II, §§ 1 & 1(b).1 To

initiate the referendum process, petitions must be filed with

the Secretary of State containing the valid signatures of

Washington registered voters in a number equal to four per-

cent of the votes cast for the Office of Governor in the imme-

diately preceding gubernatorial election. Wash. Rev. Code

§ 29A.72.150. Referendum petition sheets must include a

place for each signer to sign and print his or her name,

address, city, and county at which he or she is registered to

vote. Wash. Rev. Code § 29A.72.130.

Once the referendum petition is filed, the Secretary of State

must verify and canvass the names of the voters who signed

the petition. Wash. Rev. Code § 29A.72.230. The verification

and canvassing “may be observed by persons representing the

advocates and opponents of the proposed measure so long as

they make no record of the names, addresses, or other infor-

mation on the petitions or related records during the verifica-

tion process except upon the order of the superior court of

Thurston county.” Id. The Secretary of State may limit the

number of observers to two opponents and two proponents of

the referendum if the Secretary of State deems that “a greater

number would cause undue delay or disruption of the verifica-

tion process.” Id.

After verification and canvassing, the Secretary of State

issues a determination of whether the referendum petition

contains the requisite number of valid signatures. Any citizen

dissatisfied with that determination may apply to the Thurston

County Superior Court for a citation requiring the Secretary

of State to submit the petition to the superior court “for exam-

ination, and for a writ of mandate compelling the certification

of the measure and petition, or for an injunction to prevent the

certification thereof to the legislature, as the case may be.”

Wash. Rev. Code § 29A.72.240. Within five days of the supe-

1

The Washington Constitution includes some exceptions to this reserved

power, but none applies in this case.

14594 DOE #1 v. REED

rior court’s decision, a party may seek review by the Wash-

ington Supreme Court. Id.

If it is ultimately determined that a petition contains the

requisite number of valid signatures, the referendum is sub-

mitted to a vote at the next general election. Wash. Const., art.

II, § 1(d).

III. Referendum 71

The Washington Governor signed SB 5688 on May 18,

2009. Known as the “everything but marriage act,” the bill

expands the rights and responsibilities of state-registered

domestic partners. On or about May 4, 2009, Larry Stickney,

the campaign manager for PMW,2 filed notice with the Secre-

tary of State of his intent to circulate a referendum petition on

SB 5688. On July 25, 2009, PMW submitted the petition with

more than 138,500 signatures to the Secretary of State for ver-

ification and canvassing.3

The petition, entitled “Preserve Marriage, Protect Chil-

dren,” includes a table for the following information for each

signer: printed name, signature, home address, city and

county, and an optional email address. The petition also

states:

To the Honorable Sam Reed, Secretary of State of

the State of Washington:

We, the undersigned citizens and legal voters of the

2

PMW was organized as a state political committee pursuant to Wash.

Rev. Code § 42.17.040. Its purposes are to collect the requisite number of

signatures to place Referendum 71 on the ballot and to encourage Wash-

ington voters to reject SB 5688.

3

The State asserts that about 122,000 signatures were valid. Presumably,

the PRA would make available all 138,500 signatures, however, because

all petition sheets, not only valid signatures, comprise the public records.

DOE #1 v. REED 14595

State of Washington, respectfully order and direct

that Referendum No. 71 . . . shall be referred to the

people of the state for their approval or rejection at

the regular election to be held on the 3rd day of

November, 2009; and each of us for himself or her-

self says: I have personally received this petition, I

am a legal voter for the State of Washington, in the

city (or town) and county written after my name, my

residence address is correctly stated, and I have

knowingly signed this petition only once.

Pursuant to Wash. Rev. Code § 29A.72.140, the petition

warns that “[e]very person who signs this petition with any

other than his or her true name, knowingly signs more than

one of these petitions, signs the petition when he or she is not

a legal voter, or makes any false statement on this petition

may be punished by fine or imprisonment or both.”

As of August 20, 2009, the Secretary of State had received

public record requests for the Referendum 71 petition from

Brian Murphy of WhoSigned.org, Toby Nixon of WCOG,

Arthur West, Brian Spencer on behalf of Desire Enterprises,

and Anne Levinson on behalf of WFST. Two entities,

KnowThyNeighbor.org and WhoSigned.org, publicly stated

that they intend to publish the names of petition signers on the

internet. Plaintiffs allege that these two groups have encour-

aged individuals to contact petition signers to have “personal”

and “uncomfortable” conversations.4

4

Plaintiffs appear to be referring to a June 8, 2009, press release:

“What does happen,” says [Aaron Toleos, co-director of

KnowThyNeighbor.org], “is that conversations are triggered

between people that already have a personal connection like

friends, relatives, and neighbors.”

“These conversations can be uncomfortable for both parties,” he

said, “but they are desperately needed to break down stereotypes

and to help both sides realize how much they actually have in

common.”

14596 DOE #1 v. REED

IV. Procedural History

On July 28, 2009, Plaintiffs filed this action, seeking to

enjoin the State from publicly releasing documents showing

the names and contact information of the individuals who

signed petitions in support of Referendum 71. Count I of the

complaint alleges that, as applied to referendum petitions, the

PRA violates the First Amendment because the PRA is not

narrowly tailored to serve a compelling government interest.

Count II alleges that, as applied to the Referendum 71 peti-

tion, the PRA is unconstitutional because “there is a reason-

able probability that the signatories . . . will be subjected to

threats, harassment, and reprisals.”

The district court granted Plaintiffs a temporary restraining

order on July 29, 2009, and, after a hearing, granted Plaintiffs’

motion for a preliminary injunction on September 10, 2009,

enjoining release of the Referendum 71 petition.5 The district

court applied strict scrutiny to the PRA and concluded that

Plaintiffs established they were likely to succeed on Count I

of their complaint.6 The State and Intervenors timely

appealed.

On September 14, 2009, the State moved this court for an

emergency stay and to expedite its appeal. We consolidated

the State’s appeal with those of Intervenors WCOG and

WFST. Because the election on Referendum 71 is set for

November 3, 2009, we ordered expedited briefing on the con-

solidated appeals and heard oral argument on October 14,

2009, on the merits of the appeals, as well as on the stay motion.7

5

On September 3, 2009, the district court granted the motions to inter-

vene of WFST and WCOG.

6

The district court based its preliminary injunction only on Count I.

Because the district court did not reach the merits of Count II, we likewise

do not reach Count II in reviewing the injunction.

7

We appreciate all counsel’s efforts and cooperation in meeting a

highly-expedited briefing schedule.

DOE #1 v. REED 14597

On October 15, 2009, we granted a stay pending our disposi-

tion on the merits of these appeals.8 We now reverse the pre-

liminary injunction.

STANDARD OF REVIEW

As recently articulated by the Supreme Court, a “plaintiff

seeking a preliminary injunction must establish [1] that he is

likely to succeed on the merits, [2] that he is likely to suffer

irreparable harm in the absence of preliminary relief, [3] that

the balance of equities tips in his favor, and [4] that an injunc-

tion is in the public interest.” Winter v. Natural Res. Def.

Council, Inc., 129 S. Ct. 365, 374 (2008).

We review the district court’s grant of a preliminary injunc-

tion for abuse of discretion. Am. Trucking Ass’ns, Inc. v. City

of L.A., 559 F.3d 1046, 1052 (9th Cir. 2009) (citing Lands

Council v. Martin, 479 F.3d 636, 639 (9th Cir. 2007)). A dis-

trict court abuses its discretion if it bases its decision on an

erroneous legal standard or clearly erroneous findings of fact.

Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir.

2009) (citing Am. Trucking, 559 F.3d at 1052). Thus, applica-

tion of an incorrect legal standard in granting preliminary

injunctive relief or with regard to an underlying issue is

grounds for reversal. See Earth Island Inst. v. U.S. Forest

Serv., 351 F.3d 1291, 1298 (9th Cir. 2003) (citation omitted).

ANALYSIS

We are presented with the novel questions of whether refer-

endum petition signatures are protected speech under the First

Amendment and, if so, what level of scrutiny applies to gov-

8

On October 19, 2009, the Circuit Justice stayed our stay order. Doe #1

v. Reed, No. 09A356 (U.S. Oct. 19, 2009) (Kennedy, Circuit Justice). The

application was thereafter referred to the full Court which confirmed the

stay. Id. (Oct. 20, 2009). Nothing in either of those orders affects our con-

sideration of the merits of these appeals.

14598 DOE #1 v. REED

ernment action that burdens such speech. For the purposes of

our analysis, we assume, as did the district court, that the act

of signing a referendum petition is speech, such that the First

Amendment is implicated.9 See First Nat’l Bank of Boston v.

Bellotti, 435 U.S. 765, 776 (1978) (noting that when a litigant

challenges a statute on First Amendment grounds, the thresh-

old question is whether the statute burdens expression the

First Amendment protects). Even assuming that speech is

involved, however, we conclude that the district court applied

an erroneous legal standard when it subjected the PRA to

strict scrutiny.

I. District court’s analysis

[1] The district court’s analysis was based on the faulty

premise that the PRA regulates anonymous political speech.

The signatures at issue, however, are not anonymous. First,

the petitions are gathered in public, and there is no showing

that the signature-gathering process is performed in a manner

designed to protect the confidentiality of those who sign the

petition. Second, each petition sheet contains spaces for 20

signatures, exposing each signature to view by up to 19 other

signers and any number of potential signers. Third, any rea-

sonable signer knows, or should know, that the petition must

be submitted to the State to determine whether the referendum

qualifies for the ballot, and the State makes no promise of

confidentiality, either statutorily or otherwise. In fact, the

PRA provides to the contrary. Fourth, Washington law specif-

ically provides that both proponents and opponents of a refer-

9

The State contends, with some force, that signing a referendum petition

is not speech, but is instead, a legislative act, i.e., that it is an integral part

of the exercise of the legislative power reserved to the people by the

Washington Constitution. See State ex rel. Heavey v. Murphy, 982 P.2d

611, 615 (Wash. 1999) (“ ‘A referendum . . . is an exercise of the reserved

power of the people to legislate . . . .’ ” (quoting Belas v. Kiga, 959 P.2d

1037, 1040-41 (Wash. 1998))). Because we assume, for purposes of this

case, that signing a referendum petition is speech, we do not reach this

argument and intimate no view on it.

DOE #1 v. REED 14599

endum petition have the right to observe the State’s signature

verification and canvassing process. Thus, the district court’s

finding that the speech at issue is anonymous is clearly errone-

ous.10 And, because it was based on that faulty premise, the

district court’s application of anonymous speech cases requir-

ing strict scrutiny was error.

[2] To the extent the district court did not rely exclusively

on anonymous speech cases, the district court nonetheless

erred in applying strict scrutiny. Relying on Meyer v. Grant,

486 U.S. 414, 420-21 (1988), and Buckley v. Am. Constitu-

tional Law Found. (Buckley II), 525 U.S. 182, 197 (1999), the

district court concluded that petition signing, like petition cir-

culation, is protected political speech, and suggested that any

regulation of protected political speech is subject to strict

scrutiny. This suggestion is unsupported by the applicable

case law. Even assuming, as we do here, that petition signing

is protected political speech, it does not follow that a regula-

tion that burdens such speech is necessarily subject to strict

scrutiny. See e.g., Turner Broad. Sys., Inc. v. FCC, 512 U.S.

622, 661-62 (1994) (applying intermediate scrutiny for

viewpoint- and content-neutral time, place, and manner

restrictions on speech); Burdick v. Takushi, 504 U.S. 428, 434

(1992) (applying balancing test to election restriction that bur-

dened First Amendment rights); Lincoln Club of Orange

County v. City of Irvine, 292 F.3d 934, 938 (9th Cir. 2002)

(“[T]he level of constitutional scrutiny that we apply to a stat-

utory restriction on political speech and associational freedom

is dictated by both the intrinsic strength of, and the magnitude

of the burden placed on, the speech and associational free-

doms at issue.”).

10

This appears to be more an assumption than a finding. All that the dis-

trict court “found” on this issue was that “at this time, the Court is not per-

suaded that waiver of one’s fundamental right to anonymous political

speech is a prerequisite for participation in Washington’s referendum pro-

cess.” All of the facts underlying this finding are undisputed. We have,

nonetheless, applied the deferential clear error standard of review to this

finding.

14600 DOE #1 v. REED

II. Applicable level of scrutiny

Having concluded that the district court’s basis for applying

strict scrutiny was in error, we turn to the PRA and determine

what standard should be applied.

[3] As noted above, not all laws that burden First Amend-

ment rights are subject to strict scrutiny. A regulation that has

an incidental effect on expressive conduct is constitutional as

long as it withstands intermediate scrutiny. See United States

v. O’Brien, 391 U.S. 367, 376 (1968); Jacobs v. Clark County

Sch. Dist., 526 F.3d 419, 434 (9th Cir. 2008).

In O’Brien, a student was arrested for burning his draft card

in protest of the Vietnam War. 391 U.S. at 369-70. The stu-

dent argued the statute was an unconstitutional infringement

upon his right to engage in political speech. Id. at 370. The

Supreme Court first assumed that “the alleged communicative

element in O’Brien’s conduct [was] sufficient to bring into

play the First Amendment.” Id. at 376. The Court then con-

cluded that “when ‘speech’ and ‘nonspeech’ elements are

combined in the same course of conduct, a sufficiently impor-

tant governmental interest in regulating the nonspeech ele-

ment can justify incidental limitations on First Amendment

freedoms.” Id. at 376. Applying intermediate scrutiny, the

Court concluded that the draft card statute was not unconstitu-

tional as applied to O’Brien. Id. at 377.

[4] As in O’Brien, we assume for the purposes of our anal-

ysis that signing a referendum petition has a “speech” element

such that petition signing qualifies as expressive conduct. We

also assume that the PRA’s public access provision has an

incidental effect on referendum petition signers’ speech by

deterring some would-be signers from signing petitions.

Given these assumptions, we conclude that intermediate scru-

tiny applies to the PRA.11

11

We note that “election regulations” are subject to a different analysis

altogether. Instead of applying O’Brien intermediate scrutiny, courts apply

DOE #1 v. REED 14601

[5] Under intermediate scrutiny, as articulated in O’Brien,

application of the PRA to referendum petitions is constitu-

tional if the PRA is within the constitutional power of the

government to enforce, it furthers an important government

interest unrelated to the suppression of free expression, and

the incidental restriction on alleged First Amendment free-

doms is no greater than necessary to justify the interest.

O’Brien, 391 U.S. at 377; see also Clark v. Community for

Creative Non-Violence, 468 U.S. 288, 294 (1984).

a balancing test to determine whether an election regulation is a permissi-

ble infringement on First Amendment free speech rights. See Caruso v.

Yamhill County ex rel. County Comm’r, 422 F.3d 848, 859 (9th Cir. 2005)

(when an election regulation imposes only “reasonable, nondiscriminato-

ry” restrictions upon First and Fourteenth Amendment rights, “the [s]tate’s

important regulatory interests are generally sufficient” to justify the

restrictions) (quoting Burdick, 504 U.S. at 434); see also Burdick, 504

U.S. at 434 (holding that only when the regulation subjects such rights to

severe restrictions must it be narrowly drawn to advance a compelling

state interest). We assume, however, that the PRA is not an election regu-

lation. No case offers a sound definition of an election regulation, and its

meaning is not entirely discernible. However, Justice Thomas, in his Buck-

ley II concurrence, provides examples of cases that would likely be elec-

tion regulation cases, see 525 U.S. at 207, and none of them seems to

parallel the current case. For example, Justice Thomas cites Burson v.

Freeman, 504 U.S. 191, 198 (1992), wherein the Court subjected to strict

scrutiny a Tennessee law prohibiting solicitation of voters and distribution

of campaign literature within 100 feet of the entrance of a polling place.

Id. He also cited Anderson v. Celebrezze, 460 U.S. 780, 788-90 (1983),

which dealt with a challenge to an Ohio regulation that imposed a filing

deadline for independent candidates. Id. He cited several other cases. See

e.g. Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997);

Brown v. Hartlage, 456 U.S. 45, 53-54 (1982); Meyer, 486 U.S. at 421.

Id. at 206-07. All of these cases, however, dealt with regulations that were

content-based; they all dealt directly and specifically with the election pro-

cess. The PRA, on the other hand, only incidentally deals with the election

process and only has attenuated consequences. It does not prevent the peti-

tion signers from signing the petitions or from otherwise lawfully qualify-

ing their referendum for a vote. At most, it might deter some voters from

signing the petition.

14602 DOE #1 v. REED

III. Constitutionality of the PRA

Applying O’Brien, we begin by noting that Plaintiffs do not

contend that “aside from its impact on speech, [the PRA] is

beyond the constitutional power of the [State] to enforce.” See

Clark, 468 U.S. at 298-99. We thus turn next to the govern-

ment interests the PRA furthers. The State has asserted two

interests: (1) preserving the integrity of the election by pro-

moting government transparency and accountability; and (2)

providing Washington voters with information about who

supports placing a referendum on the ballot. Both interests

plainly qualify as important.12

[6] “A [s]tate indisputably has a compelling interest in pre-

serving the integrity of the election process.” Eu v. S.F.

County Democratic Cent. Comm., 489 U.S. 214, 231 (1989)

(citing Rosario v. Rockefeller, 410 U.S. 752, 761 (1973)); see

also Buckley II, 525 U.S. at 191 (“States allowing ballot ini-

tiatives have considerable leeway to protect the integrity and

reliability of the initiative process . . . .”). In Washington, the

PRA plays a key role in preserving the integrity of the refer-

endum process by serving a government accountability and

transparency function not sufficiently served by the statutory

scheme governing the referendum process. The oversight pro-

cedure provided by statute allows the Secretary of State to

limit observers to two opponents and two proponents of the

referendum. See Wash. Rev. Code § 29A.72.230. This proce-

dure is insufficient to shift oversight from the special interest

groups to the general public. See Progressive Animal Welfare

Soc’y v. Univ. of Wash., 884 P.2d 592, 597 (Wash. 1994)

(“Without tools such as the [PRA], government of the people,

by the people, for the people, risks becoming government of

the people by the bureaucrats, for the special interests.”).

12

In making its strict scrutiny analysis, the district court recognized only

one of these interests, “preserving the integrity of its election process,” as

a “compelling governmental interest.” It did not address the State’s inter-

est, furthered by the PRA, of an informed electorate.

DOE #1 v. REED 14603

Without the PRA, the public is effectively deprived of the

opportunity independently to examine whether the State prop-

erly determined that a referendum qualified, or did not qual-

ify, for the general election.

Moreover, the PRA is necessary for citizens to make mean-

ingful use of the state superior court challenge also provided

by statute. See Wash. Rev. Code § 29A.72.240.13 The superior

court procedure would be at best inefficient and at worst use-

less, if citizens have no rational basis on which to decide

whether they are “dissatisfied” with the Secretary of State’s

determination before filing a challenge — and they cannot

gain that understanding without the right to inspect the peti-

tion sheets.

We have also recognized the State’s “informational inter-

est” as important. See Cal. Pro-Life Council, Inc. v. Ran-

dolph, 507 F.3d 1172, 1179 nn.8-9 (9th Cir. 2007) (noting

that the informational interest was “well-established” and that

California presented persuasive evidence demonstrating that it

was compelling); Canyon Ferry Rd. Baptist Church of E.

Helena, Inc. v. Unsworth, 556 F.3d 1021, 1032 (9th Cir.

2009) (having “little trouble” concluding that the state’s infor-

mational interest was important).

Plaintiffs correctly note that Cal. Pro-Life and Canyon

Ferry dealt with the interest in disclosure of financial backers

13

That statute provides:

Any citizen dissatisfied with the determination of the secretary

of state that . . . [a] referendum petition contains or does not con-

tain the requisite number of signatures of legal voters may, within

five days after such determination, apply to the superior court of

Thurston county for a citation requiring the secretary of state to

submit the petition to said court for examination, and for a writ

of mandate compelling the certification of the . . . petition, or for

an injunction to prevent the certification thereof . . . .

Wash. Rev. Code § 29A.72.240.

14604 DOE #1 v. REED

of referenda, not “generally what groups may be in favor of,

or opposed to, a particular . . . ballot issue.” Canyon Ferry,

556 F.3d at 1032-33 (holding that requiring disclosure of de

minimus in-kind contributions was unconstitutional because

the marginal informational gain did not justify the burden of

disclosure). Referendum petition signers, however, cannot be

considered “generally” in favor of a particular ballot issue.

Referendum petition signers have not merely taken a general

stance on a political issue; they have taken action that has

direct legislative effect. The interest in knowing who has

taken such action is undoubtedly greater than knowing gener-

ally what groups are in favor of or opposed to a ballot issue.

[7] We conclude that each of the State’s asserted interests

is sufficiently important to justify the PRA’s incidental limita-

tions on referendum petition signers’ First Amendment free-

doms. See O’Brien, 391 U.S. at 376-77. We conclude also

that the incidental effect of the PRA on speech is no greater

than necessary. See Ward v. Rock Against Racism, 491 U.S.

781, 798-99 (holding that a restriction need not be the least

restrictive means of furthering the State’s interest to survive

intermediate scrutiny).

[8] Finally, no one has claimed that the State’s interests are

at all related to the suppression or regulation of expression.

The stated aim of the PRA, which itself was passed through

the initiative process, is to keep the citizens “informed so that

they may maintain control over the instruments that they have

created.” Wash. Rev. Code § 42.56.030. There is no indica-

tion that despite this clear statement, the PRA was nonetheless

intended to suppress free expression.

[9] Accordingly, we hold that the PRA as applied to refer-

endum petitions does not violate the First Amendment.14

14

Because we conclude that Plaintiffs have failed to satisfy the first

Winters factor — likelihood of success on the merits — we need not

examine the three remaining Winters factors, see supra at 14597 (quoting

DOE #1 v. REED 14605

CONCLUSION

The district court applied an erroneous legal standard when

it applied strict scrutiny to the PRA. The proper analysis was

to apply intermediate scrutiny. Applying this analysis, we

conclude that the PRA is constitutional as applied to referen-

dum petitions.

The district court’s grant of the preliminary injunction is

REVERSED.

the four-factor Winters test), although we note that the district court’s

analysis of the remaining Winters factors relied on presumptions, rather

than findings of fact, arising from its erroneous legal conclusion that

Plaintiffs’ First Amendment rights were likely violated.