Jacob Sullum

Since Hastings is part of California's state university system, that policy means the government is favoring certain beliefs over others. Yet when the Times editorialized on the case (which the court heard this week), the only discrimination it perceived was the student group's exclusion of homosexuals and non-Christians.

The Times was similarly dismissive of the concerns raised by opponents of gay marriage in Washington, who this week asked the court to rule that the state must protect the privacy of people who sign petitions that qualify initiatives for the ballot. The Supreme Court has recognized that the ability to speak anonymously is protected by the First Amendment and that forced disclosure of one's political views can have a chilling effect on speech, a phenomenon confirmed in recent research by the Institute for Justice.

Verifying signatures does not require public disclosure, and the Washington petition-signers have good reason to fear the repercussions of revealing their support for a 2009 initiative aimed at overturning a domestic partnership law. In California, people who donated to the campaign for a 2008 initiative that banned gay marriage faced harassment, death threats, vandalism and loss of their jobs.

But according to the Times, the names and addresses of petition-signers must be publicized because "putting an initiative on the ballot is an important governmental act." Since the same could be said of deciding whether an initiative will be enacted, a process shielded by the privacy of the voting booth, it seems likely that the paper's position in this case is driven by something other than law and logic.

When it comes to criteria for selecting Supreme Court justices, the Times reports, "empathy is out." But it may be the key to understanding the paper's inconsistent defense of the First Amendment.

Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
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