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Court Weighs Ohio Law Banning Anonymous Leaflets

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Washington

In a case arising from a local school-tax referendum, the U.S. Supreme Court heard arguments last week on the constitutionality of an Ohio law that bans anonymous campaign literature.

Several Justices appeared skeptical of the law, which was used by election authorities in the state to fine a woman $100 for distributing leaflets in opposition to a school property-tax levy. The handbills did not include her name and address, as the law required.

"I would have thought that if the First Amendment stood for anything at all, it would stand for my right to put out a flier about a school election without identifying myself," Associate Justice Sandra Day O'Connor said to the state's lawyer during oral arguments in McIntyre v. Ohio Elections Commission (Case No. 93-986).

"I would have thought the First Amendment protects this kind of core political speech," Justice O'Connor added.

Andrew I. Sutter, an assistant attorney general in Ohio, argued that the law should be upheld because the state's interest in insuring the honesty and integrity of elections allows for a minimal burden on the First Amendment's guarantee of free expression.

"Occasionally, First Amendment core speech has to yield to this greater interest," he argued.

Opposition to School Tax

The case began in 1988, when the Westerville, Ohio, school district sought voters' approval for a property-tax increase. At a school forum about the referendum, Margaret McIntyre passed out fliers urging her neighbors to vote no.

"Waste of tax payers dollars must be stopped," the flier said. "Please Vote No. Issue 19. Thank You, Concerned Parents and Tax Payers."

The assistant superintendent of the Westerfield district, J. Michael Hayfield, saw Ms. McIntyre passing out the fliers and informed her that they violated the Ohio election law.

The tax levy was defeated twice before finally winning approval on the third try in 1989. After it passed, Mr. Hayfield filed a complaint about Ms. McIntyre's fliers with the Ohio Elections Commission. The commission found that she had distributed unsigned leaflets and fined her $100.

Ms. McIntyre filed suit, alleging that the election law interfered with her First Amendment right of free speech. She won in a state trial court, but lost in a state appellate court and in the Ohio Supreme Court. The U.S. Supreme Court agreed last February to hear her appeal. (See Education Week, March 2, 1994.)

After the High Court accepted her case, Ms. McIntyre died of cancer. The Court rejected a motion by the state to dismiss the case as moot, apparently because Ms. McIntyre's estate is still obligated to pay the $100 fine plus court costs. The Supreme Court substituted her husband, Joseph, as the petitioner in the case.

A Case of Retaliation?

The law in question is similar to measures on the books in more than half of the 50 states, requiring disclosure of the person or organization that produces a piece of campaign literature or advertising.

David A. Goldberger, the lawyer for Mr. McIntyre, argued that the Ohio law conflicts with a 1960 Supreme Court decision that upheld the distribution of anonymous leaflets by the organizers of a consumer boycott against companies engaged in racial discrimination.

The Court said in Talley v. California that such a flat ban can deter the free expression of those who wish to remain anonymous because they fear retaliation.

Mr. Goldberger acknowledged that Ms. McIntyre did not set out to remain anonymous as the distributor of the anti-tax leaflets, since she was an outspoken critic of the proposal.

But he argued that the actions of the assistant superintendent in pursuing charges against Ms. McIntyre was evidence that leafletters face retaliation.

Ms. McIntyre "and other residents of Westerville are on notice that when they take on school officials, school officials are going to fight back hard," he said.

In court papers, Ms. McIntyre's lawyers also argue that under Ohio election law, even the Federalist Papers, the pseudonymous tracts written in support of the campaign to ratify the U.S. Constitution, would have been banned.

Associate Justice Ruth Bader Ginsburg asked the state's lawyer whether there is a "tradition attached to the lone leafletter in this country?"

"We're not saying she could not campaign," Mr. Sutter responded. "We're not saying she could not leaflet."

The state's interests are to deter election fraud and inform the electorate, he said.

He pointed repeatedly to a 1976 Supreme Court decision that upheld a federal campaign-finance-disclosure law. Both the federal and Ohio disclosure laws have the goal of assuring that the public can learn about the sponsorship of political campaigns, he said.

Justice Ginsburg suggested that if the state's concerns revolve around "big spending" designed to influence elections, officials could apply the law only above some minimum spending level and "leave out the little people like Ms. McIntyre."

The Court will issue a decision in the case by next July.

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