In the interest of protecting their natural rights to privacy and freedom of association, perhaps all those founders should have left the bottom of the Declaration of Independence blank. John Hancock shouldn’t have resorted to large type so the king could read the signature without his spectacles. They then could have been attuned to the contemporary concept that freedom of expression at times requires anonymity, especially when the consequence of public disclosure might be a noose or some other form of harassment akin to having your name on a CD-ROM.

But, of course, an anonymous Declaration of Independence would have had far less meaning. The members of Continental Congress who signed it so boldly, we should be thankful, had the courage of their convictions, even as they risked their lives affixing their names to a sheet of words.

Defying a king and signing a referendum petition in front of a supermarket are not the same thing, especially not in their depth of risk. Both, however, are civic acts questioning ruling decisions, or attempts to make or change law. A referendum or initiative petition is part of a ruling system where clarity and transparency serve the public interest. You may be criticized for your beliefs — that is always a risk — but there are times when democracy is not served by secrecy, as Justice Antonin Scalia noted during Wednesday’s Supreme Court session on Doe v. Reed, the case that asks petition signatures in Washington be kept secret.

“ The people (of) Washington evidently think that this is not too much of an imposition upon people’s courage, to — to stand up and sign something and be willing to stand behind it,” said Scalia.

At issue were the signatures that put Referendum 71 on the Washington ballot in 2009. The measure would have overturned Washington’s new everything-but-marriage gay rights statute. Opponents of the new law, the supporters of the referendum, argue that the signers of petitions should not be disclosed, because the potential for harassment might scare signers away from exercising their constitutional right of free speech and political expression. The state argued that Washington’s Public Records Act requires the petitions, as public documents not expressly exempt, should remain open for public scrutiny.

Before Wednesday’s session, third-party court handicappers were saying the case for secrecy would sway the court’s conservatives. The argument is, public disclosure of signers thwarts First Amendments rights to such an extent that it overrides any supposed public interest in open records. But almost from the opening sentence, the conservative Scalia was leading the skeptics. Anonymity is not a constitutional requirement, he said. Even the principle of the secret ballot, nowhere mentioned in the Constitution, is a relatively recent invention. All those elections in the nation’s first century, where voting was a public matter, were not unconstitutional. And, as Attorney General Rob McKenna noted, New England town hall meetings are not unconstitutional for their lack of secrecy. Neither are Washington or Iowa caucuses.

“In light of the fact that for the first century of our existence, even voting was public — you either did it raising your hand or by voice, or later, you had a ballot that was very visibly red or blue so that people knew which party you were voting for — the fact is that running a democracy takes a certain amount of civic courage,” Scalia said. “And the First Amendment does not protect you from criticism or even nasty phone calls when you exercise your political rights to legislate, or to take part in the legislative process. You are asking us to enter into a whole new field where we have never gone before.”

The plaintiffs in this case, arguing that they must have their identity kept secret to fully exercise their rights, would intentionally or inadvertently blow a gaping hole in Washington’s public records laws, and probably its campaign disclosure laws. That might make it easier to gather signatures or raise funds, but it would not serve democracy or freedom.

Tracy Warner’s column appears Tuesday through Friday. He can be reached at warner@wenatcheeworld.com or 665-1163.