Petitioner
Joseph McIntyre, Executor of the Estate of Margaret McIntyre
Respondent
Ohio Elections Commission
Petitioner's Claim
That 3599.09(A) of the Ohio Code violates the right to free speech under theFirst Amendment.
Chief Lawyer for Petitioner
David Goldberger
Chief Lawyer for Respondent
Andrew I. Sutter
Justices for the Court
Stephen Breyer, Ruth Bader Ginsburg, Anthony M. Kennedy, Sandra Day O'Connor,David H. Souter, John Paul Stevens (writing for the Court), Clarence Thomas
Justices Dissenting
William H. Rehnquist, Antonin Scalia
Place
Washington, D.C.
Date of Decision
19 April 1995
Decision
The Court, reversing a lower court's ruling, held that an Ohio statute prohibiting anonymous campaign literature was unconstitutional.
Significance
The ruling extended First Amendment protections to those who publish anonymously in a political context.
On 27 April 1988, outside a public meeting in Westerville, Ohio, a school official warned Margaret McIntyre that the pamphlets she was distributing were illegal. Her fliers opposed a proposed school levy; some were signed with hername, but others were only signed "Concerned Parents and Tax Payers." Despitethe warning, McIntyre continued handing out her fliers the following evening.
In November, after the levy had passed, the same official filed a complaint against McIntyre with the Ohio Elections Commission. The commission fined McIntyre $100, as 3599.09(A) of the Ohio Code prohibited anonymous campaign literature. The Franklin County Court of Common Pleas reversed that decision, on the grounds that McIntyre had not misled the public or acted surreptitiously.The Ohio Court of Appeals reinstated the fine, based on the 1922 Ohio SupremeCourt decision State v. Babst upholding the predecessor to the law inquestion. The dissent cited Talley v. California (1960) as a relevant, more recent case.
Talley v. California
The Supreme Court had decided in Talley that a Los Angeles city ordinance, barring handbills unless they are printed with the names and addresses of their authors or sponsors, violated the Fourteenth Amendment's protection of speech and press. As stated in the court transcripts, California argued that the ordinance was designed to "identify those responsible for fraud, falseadvertising and libel." However, there was nothing in the ordinance itself nor in its legislative history to support that claim; the ordinance uniformly banned all anonymous handbills.
Writing for the majority, Justice Black praised the historical role of anonymous publications: "Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all." He went on to note the importance of anonymous pamphlets in early American history, concluding "It is plain that anonymity has sometimes been assumed for the most constructive purposes."
In the MacIntyre case, though, the Ohio Supreme Court affirmed the court of appeals ruling, notwithstanding the Supreme Court decision in Talley. The Ohio law, the court claimed, differed from the ordinance in Talley because 3599.09(A) was meant to identify "those who distribute materials containing false statements." The dissent considered identification a significant burden, and feared that the requirement would silence some unpopulargroups for fear of retaliation. The Supreme Court's ensuing decision echoed many of this dissent's arguments.
Regulation of the Electoral Process
Before the Supreme Court, Ohio argued that 3599.09(A) was a "reasonable regulation of the electoral process." As in Talley, though, the Court foundthat the statute was not limited to documents containing falsehoods. The Ohio statute differed from the Los Angeles ordinance, however, in its specific application to documents intended to sway voters. The Court's job in this case, then, was to "decided whether and to what extent the First Amendment's protection of anonymity encompasses documents intended to influence the electoralprocess."
"Exacting Scrutiny"
Rather than weigh the interests of the state against the rights of voters, asit had done in other cases regarding regulation of the electoral process, the Court here applied "exacting scrutiny." That is, it would "uphold the restriction only if it is narrowly tailored to serve an overriding state interest." The Court applied this strict standard because this case involved not justprocedural issues, but free speech. In fact, 3599.09(A) applied to a centralarea of free speech: discussion of public issues.
Ohio argued that even by this standard, the statute was justified because ofthe importance of the state's interest in "preventing fraudulent and libelousstatements and its interest in providing the electorate with relevant information." The question then was: Did this statute achieve those goals? The Court's answer was that it did not.
The identity of the author, according to the Court, was no different from anyother information that might be contained in a document. In Miami HeraldPublishing Company v. Tornillo (1960), the Court had decided that no onecould be required to print all relevant information. In any case, the name and address of the author would add little information to a document.
Ohio already had other regulations prohibiting false statements during political campaigns. Thus, the statute in question acted primarily as an auxiliaryto those regulations, and as a deterrent. Given its supporting role, and itsobvious potential for use against authors of accurate and scrupulous documents, 3599.09(A) did more harm than good.
The Court rejected Ohio's argument that past decisions requiring disclosure --of the sources of corporate advertising (First National Bank of Boston v.Bellotti [1978]) and of campaign funds(Buckley v. Valeo [1976])--applied here. Bellotti was inapplicable, as corporations lack individuals' First Amendment protections. As for Buckley, the Court decided that, compared to identification of a leaflet's author, "Disclosure of an expenditure and its use, without more, reveals far less information . . . even though money may `talk,' its speech is less specific, less personal and less provocative than a handbill--and as a result, when money supports an unpopular viewpoint it is less likely to precipitate retaliation."
Anonymity Part of Original Intent
Justice Thomas filed a concurring opinion agreeing with the Court's judgment,but not its reasoning. Thomas presented a history of anonymous publishing inthe United States, to establish that the original intent of the First Amendment encompasses anonymous publishing. The Court's reasoning in the case, he argued, was largely irrelevant; it was the framers' understanding that was important.
. . . Or Perhaps Not
In his dissent Justice Scalia found it difficult to discern the original intent. Laws against anonymous pamphleteering were neither approved, nor clearlydisapproved, at the time of adoption. Scalia acknowledged that "anonymous electioneering was not prohibited by law in 1791 or in 1868 [the year in which the Fourteenth Amendment was adopted]." This fact did not, however, establishanonymity as a constitutional right. Nor did any of Thomas's examples involvethe electoral process, the context in McIntyre. In the absence of other evidence, Scalia turned to "the widespread and long-accepted practices ofthe American people." At the time of McIntyre, every state except California had a law similar to the Ohio statute. On this basis alone Scalia would decide for the respondent.
However, he went on to say that restriction of free speech was justified by protection of the electoral process. Furthermore, a general right to anonymitywas not supported by precedent, and had been explicitly rejected in earliercases. And finally, prohibiting anonymous political pamphlets does improve elections. A signing requirement deters those who would mislead the public or smear their opponents.
Justice Ginsburg, in a concurrence, called Scalia's dissent "stirring in itsappreciation of democratic values." She pointed out, though, that previous cases supported the decision. She also qualified that decision to some degree:"We do not thereby hold that the State may not in other, larger circumstances, require the speaker to disclose its interest by disclosing its identity."
Impact
In 1998, most states required sponsors of political television advertisementsto identify themselves in the advertisements. McIntyre may provide away for political organizations to challenge that condition. Notably, the petitioner's lawyer in McIntyre did say that an identification requirement for television advertisements would be appropriate.
Another parallel is to Internet speech, which, like pamphleteering, falls into the category of "cheap speech." Internet "remailers" allow individuals to post messages anonymously; many object to the resulting lack of accountability. The arguments presented in McIntyre could equally well address thatobjection. On one hand, the author's identity may not always add relevant information. On the other hand, if the author's identity might create a bias against a message, anonymity could deliver a more open-minded audience.
However, this decision may prove conducive to dirty campaigning. Scalia notedin his dissent that "[t]he principal impediment against [mudslinging] is thereluctance of most individuals and organizations to be publicly associated with uncharitable and uncivil expression." With the McIntyre decision,the Court may have provided a way around that impediment.
Related Cases
Joseph McIntyre, Executor of the Estate of Margaret McIntyre
Respondent
Ohio Elections Commission
Petitioner's Claim
That 3599.09(A) of the Ohio Code violates the right to free speech under theFirst Amendment.
Chief Lawyer for Petitioner
David Goldberger
Chief Lawyer for Respondent
Andrew I. Sutter
Justices for the Court
Stephen Breyer, Ruth Bader Ginsburg, Anthony M. Kennedy, Sandra Day O'Connor,David H. Souter, John Paul Stevens (writing for the Court), Clarence Thomas
Justices Dissenting
William H. Rehnquist, Antonin Scalia
Place
Washington, D.C.
Date of Decision
19 April 1995
Decision
The Court, reversing a lower court's ruling, held that an Ohio statute prohibiting anonymous campaign literature was unconstitutional.
Significance
The ruling extended First Amendment protections to those who publish anonymously in a political context.
On 27 April 1988, outside a public meeting in Westerville, Ohio, a school official warned Margaret McIntyre that the pamphlets she was distributing were illegal. Her fliers opposed a proposed school levy; some were signed with hername, but others were only signed "Concerned Parents and Tax Payers." Despitethe warning, McIntyre continued handing out her fliers the following evening.
In November, after the levy had passed, the same official filed a complaint against McIntyre with the Ohio Elections Commission. The commission fined McIntyre $100, as 3599.09(A) of the Ohio Code prohibited anonymous campaign literature. The Franklin County Court of Common Pleas reversed that decision, on the grounds that McIntyre had not misled the public or acted surreptitiously.The Ohio Court of Appeals reinstated the fine, based on the 1922 Ohio SupremeCourt decision State v. Babst upholding the predecessor to the law inquestion. The dissent cited Talley v. California (1960) as a relevant, more recent case.
Talley v. California
The Supreme Court had decided in Talley that a Los Angeles city ordinance, barring handbills unless they are printed with the names and addresses of their authors or sponsors, violated the Fourteenth Amendment's protection of speech and press. As stated in the court transcripts, California argued that the ordinance was designed to "identify those responsible for fraud, falseadvertising and libel." However, there was nothing in the ordinance itself nor in its legislative history to support that claim; the ordinance uniformly banned all anonymous handbills.
Writing for the majority, Justice Black praised the historical role of anonymous publications: "Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all." He went on to note the importance of anonymous pamphlets in early American history, concluding "It is plain that anonymity has sometimes been assumed for the most constructive purposes."
In the MacIntyre case, though, the Ohio Supreme Court affirmed the court of appeals ruling, notwithstanding the Supreme Court decision in Talley. The Ohio law, the court claimed, differed from the ordinance in Talley because 3599.09(A) was meant to identify "those who distribute materials containing false statements." The dissent considered identification a significant burden, and feared that the requirement would silence some unpopulargroups for fear of retaliation. The Supreme Court's ensuing decision echoed many of this dissent's arguments.
Regulation of the Electoral Process
Before the Supreme Court, Ohio argued that 3599.09(A) was a "reasonable regulation of the electoral process." As in Talley, though, the Court foundthat the statute was not limited to documents containing falsehoods. The Ohio statute differed from the Los Angeles ordinance, however, in its specific application to documents intended to sway voters. The Court's job in this case, then, was to "decided whether and to what extent the First Amendment's protection of anonymity encompasses documents intended to influence the electoralprocess."
"Exacting Scrutiny"
Rather than weigh the interests of the state against the rights of voters, asit had done in other cases regarding regulation of the electoral process, the Court here applied "exacting scrutiny." That is, it would "uphold the restriction only if it is narrowly tailored to serve an overriding state interest." The Court applied this strict standard because this case involved not justprocedural issues, but free speech. In fact, 3599.09(A) applied to a centralarea of free speech: discussion of public issues.
Ohio argued that even by this standard, the statute was justified because ofthe importance of the state's interest in "preventing fraudulent and libelousstatements and its interest in providing the electorate with relevant information." The question then was: Did this statute achieve those goals? The Court's answer was that it did not.
The identity of the author, according to the Court, was no different from anyother information that might be contained in a document. In Miami HeraldPublishing Company v. Tornillo (1960), the Court had decided that no onecould be required to print all relevant information. In any case, the name and address of the author would add little information to a document.
Ohio already had other regulations prohibiting false statements during political campaigns. Thus, the statute in question acted primarily as an auxiliaryto those regulations, and as a deterrent. Given its supporting role, and itsobvious potential for use against authors of accurate and scrupulous documents, 3599.09(A) did more harm than good.
The Court rejected Ohio's argument that past decisions requiring disclosure --of the sources of corporate advertising (First National Bank of Boston v.Bellotti [1978]) and of campaign funds(Buckley v. Valeo [1976])--applied here. Bellotti was inapplicable, as corporations lack individuals' First Amendment protections. As for Buckley, the Court decided that, compared to identification of a leaflet's author, "Disclosure of an expenditure and its use, without more, reveals far less information . . . even though money may `talk,' its speech is less specific, less personal and less provocative than a handbill--and as a result, when money supports an unpopular viewpoint it is less likely to precipitate retaliation."
Anonymity Part of Original Intent
Justice Thomas filed a concurring opinion agreeing with the Court's judgment,but not its reasoning. Thomas presented a history of anonymous publishing inthe United States, to establish that the original intent of the First Amendment encompasses anonymous publishing. The Court's reasoning in the case, he argued, was largely irrelevant; it was the framers' understanding that was important.
. . . Or Perhaps Not
In his dissent Justice Scalia found it difficult to discern the original intent. Laws against anonymous pamphleteering were neither approved, nor clearlydisapproved, at the time of adoption. Scalia acknowledged that "anonymous electioneering was not prohibited by law in 1791 or in 1868 [the year in which the Fourteenth Amendment was adopted]." This fact did not, however, establishanonymity as a constitutional right. Nor did any of Thomas's examples involvethe electoral process, the context in McIntyre. In the absence of other evidence, Scalia turned to "the widespread and long-accepted practices ofthe American people." At the time of McIntyre, every state except California had a law similar to the Ohio statute. On this basis alone Scalia would decide for the respondent.
However, he went on to say that restriction of free speech was justified by protection of the electoral process. Furthermore, a general right to anonymitywas not supported by precedent, and had been explicitly rejected in earliercases. And finally, prohibiting anonymous political pamphlets does improve elections. A signing requirement deters those who would mislead the public or smear their opponents.
Justice Ginsburg, in a concurrence, called Scalia's dissent "stirring in itsappreciation of democratic values." She pointed out, though, that previous cases supported the decision. She also qualified that decision to some degree:"We do not thereby hold that the State may not in other, larger circumstances, require the speaker to disclose its interest by disclosing its identity."
Impact
In 1998, most states required sponsors of political television advertisementsto identify themselves in the advertisements. McIntyre may provide away for political organizations to challenge that condition. Notably, the petitioner's lawyer in McIntyre did say that an identification requirement for television advertisements would be appropriate.
Another parallel is to Internet speech, which, like pamphleteering, falls into the category of "cheap speech." Internet "remailers" allow individuals to post messages anonymously; many object to the resulting lack of accountability. The arguments presented in McIntyre could equally well address thatobjection. On one hand, the author's identity may not always add relevant information. On the other hand, if the author's identity might create a bias against a message, anonymity could deliver a more open-minded audience.
However, this decision may prove conducive to dirty campaigning. Scalia notedin his dissent that "[t]he principal impediment against [mudslinging] is thereluctance of most individuals and organizations to be publicly associated with uncharitable and uncivil expression." With the McIntyre decision,the Court may have provided a way around that impediment.
Related Cases
- State v. Babst, 135 N.E. 525 (1922).
- Talley v. California, 362 U.S. 60 (1960).
- Miami Herald Publishing Company v. Tornillo, 418 U.S. 241 (1974).
- Buckley v. Valeo, 424 U.S. 1 (1976).
- First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978).
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