Court Upholds Anonymous Fliers as Protected Political Speech

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Distributing anonymous fliers in opposition to a school bond referendum is a form of "core political speech" protected by the First Amendment, the U.S. Supreme Court ruled last week.

The Justices voted 7 to 2 to void an Ohio election law that required a name and address on every piece of campaign literature, including homemade handbills.

It was just such a flier that got a Westerville woman named Margaret McIntyre in trouble in 1988, when she was fined $100 by the Ohio Elections Commission.

The High Court reversed the fine and invalidated the law in its April 19 ruling in McIntyre v. Ohio Elections Commission (Case No. 93-986).

"The speech in which Mrs. McIntyre engaged--handing out leaflets in the advocacy of a politically controversial viewpoint--is the essence of First Amendment expression," Associate Justice John Paul Stevens wrote in the majority opinion.

"Anonymity is a shield from the tyranny of the majority," he wrote, arguing that it protects unpopular individuals from retaliation "and their ideas from suppression."

Retaliation against Ms. McIntyre was the motivation of the school district official who filed the election charge against her, her lawyers charged.

Ms. McIntyre was distributing her leaflets outside a school board forum when the assistant superintendent of the Westerville district, J. Michael Hayfield, informed her that they did not comply with the law. Ms. McIntyre was undeterred, and the tax levy was twice defeated in the Columbus suburb. Only after the tax increase finally passed, on the third try, did Mr. Hayfield file a charge with the election commission.

Important Principle

After she was fined, Ms. McIntyre filed a lawsuit challenging the law as an infringement on her First Amendment right of free expression. A state trial court ruled in her favor, but an appellate court and the Ohio Supreme Court upheld the law.

Ms. McIntyre died of cancer last spring, shortly after the U.S. Supreme Court accepted her appeal. Since her estate was still obligated to pay the mostly symbolic fine, the case continued.

Justice Stevens wrote that even though the amount in question was small, the constitutional issue was an important one. He rejected arguments from the state that its law imposed only a minor burden on First Amendment rights, and that the law was a reasonable effort to prevent fraudulent and libelous campaign statements. At least 43 states have similar laws.

The state could use other measures to battle false campaign rhetoric, Justice Stevens said, but the name-and-address requirement was too broad. He cited the Federalist Papers and other pseudonymous tracts supporting and opposing ratification of the U.S. Constitution as examples of the nation's "tradition of anonymity in the advocacy of political causes."

Justice Stevens was joined by Associate Justices Sandra Day O'Connor, Anthony M. Kennedy, Ruth Bader Ginsburg, and Stephen G. Breyer. Associate Justice Clarence Thomas wrote a separate, concurring opinion.

Associate Justice Antonin Scalia wrote a dissent that was joined by Chief Justice William H. Rehnquist. An anonymous leaflet, he wrote, "facilitates wrong by eliminating accountability."

Vol. 14, Issue 31

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