McIntyre v. Ohio Elections Commission

In his dissent Justice Scalia found it difficult to discern the original intent. Laws against anonymous pamphleteering were neither approved, nor clearly disapproved, 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, establish anonymity as a constitutional right. Nor did any of Thomas's examples involve the electoral process, the context in McIntyre. In the absence of other evidence, Scalia turned to "the widespread and long-accepted practices of the 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 anonymity was not supported by precedent, and had been explicitly rejected in earlier cases. 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 its appreciation 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."