OCTOBER TERM, 1994
Syllabus
McINTYRE, EXECUTOR OF ESTATE OF McINTYRE, DECEASED
v.
OHIO ELECTIONS COMMISSION
CERTIORARI TO THE SUPREME COURT OF OHIO No. 93-986. Argued
October 12, 1994-Decided April 19, 1995
After petitioner's decedent distributed leaflets purporting to
express the views of "CONCERNED PARENTS AND TAX PAYERS" opposing a
proposed school tax levy, she was fined by respondent for violating
§ 3599.09(A) of the Ohio Code, which prohibits the distribution of
campaign literature that does not contain the name and address of
the person or campaign official issuing the literature. The Court
of Common Pleas reversed, but the Ohio Court of Appeals reinstated
the fine. In affirming, the State Supreme Court held that the
burdens § 3599.09(A) imposed on voters' First Amendment rights were
"reasonable" and "nondiscriminatory" and therefore valid. Declaring
that § 3599.09(A) is intended to identify persons who distribute
campaign materials containing fraud, libel, or false advertising
and to provide voters with a mechanism for evaluating such
materials, the court distinguished
Talley v.
California, 362
U. S. 60, in which this Court invalidated an ordinance
prohibiting all anonymous leafletting.
Held: Section 3599.09(A)'s prohibition of the
distribution of anonymous campaign literature abridges the freedom
of speech in violation of the First Amendment. Pp.341-357.
(a) The freedom to publish anonymously is protected by the First
Amendment, and, as
Talley indicates, extends beyond the
literary realm to the advocacy of political causes. Pp.341-343.
(b) This Court's precedents make abundantly clear that the Ohio
Supreme Court's reasonableness standard is significantly more
lenient than is appropriate in a case of this kind. Although
Talley concerned a different limitation than § 3599.09(A)
and thus does not necessarily control here, the First Amendment's
protection of anonymity nevertheless applies. Section 3599.09(A) is
not simply an election code provision subject to the "ordinary
litigation" test set forth in
Anderson v.
Celebrezze,
460 U. S. 780,
and similar cases. Rather, it is a regulation of core political
speech. Moreover, the category of documents it covers is defined by
their content-only those publications containing speech designed to
influence the voters in an election need bear the required
information. See,
e. g., First Nat. Bank of
Boston v.
Bellotti, 435 U. S. 765,776-777.
When a law burdens such speech, the Court applies "exacting
scrutiny,"
335
upholding the restriction only if it is narrowly tailored to
serve an overriding state interest. See,
e. g., id.,
at 786. Pp.343-347.
(c) Section 3599.09(A)'s anonymous speech ban is not justified
by Ohio's asserted interests in preventing fraudulent and libelous
statements and in providing the electorate with relevant
information. The claimed informational interest is plainly
insufficient to support the statute's disclosure requirement, since
the speaker's identity is no different from other components of a
document's contents that the author is free to include or exclude,
and the author's name and address add little to the reader's
ability to evaluate the document in the case of a handbill written
by a private citizen unknown to the reader. Moreover, the state
interest in preventing fraud and libel (which Ohio vindicates by
means of other, more direct prohibitions) does not justify §
3599.09(A)'s extremely broad prohibition of anonymous leaflets. The
statute encompasses all documents, regardless of whether they are
arguably false or misleading. Although a State might somehow
demonstrate that its enforcement interests justify a more limited
identification requirement, Ohio has not met that burden here. Pp.
348-353.
(d) This Court's opinions in
Bellotti, 435 U. S., at 792,
n. 32-which commented in dicta on the prophylactic effect of
requiring identification of the source of corporate campaign
advertising-and
Buckley v.
Valeo, 424 U. S. 1, 75-76-which
approved mandatory disclosure of campaign-related expenditures-do
not establish the constitutionality of § 3599.09(A), since neither
case involved a prohibition of anonymous campaign literature. Pp.
353-356.
67 Ohio St. 3d 391, 618 N. E. 2d 152, reversed.
STEVENS, J., delivered the opinion of the Court, in which
O'CONNOR, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined.
GINSBURG, J., filed a concurring opinion,
post, p. 358.
THOMAS, J., filed an opinion concurring in the judgment,
post, p. 358. SCALIA, J., filed a dissenting opinion, in
which REHNQUIST, C. J., joined,
post, p. 371.
David Goldberger argued the cause for petitioner. With him on
the briefs were George
Q. Vaile, Steven R. Shapiro, Joel M.
Gora, Barbara P. O'Toole, and Louis A. Jacobs.
Andrew 1.
Sutter, Assistant Attorney General of
Ohio, argued the cause for respondent. With him on the briefs were
Lee Fisher, Attorney General,
Andrew S.
Bergman,
Robert A. Zimmerman, and
James M. Harrison, Assistant
At-
336
torneys General,
Richard A. Cordray, State Solicitor, and
Simon B. Karas. *
JUSTICE STEVENS delivered the opinion of the Court.
The question presented is whether an Ohio statute that prohibits
the distribution of anonymous campaign literature is a "law ...
abridging the freedom of speech" within the meaning of the First
Amendment.1
*Briefs of
amici curiae urging affirmance were filed for
the State of Tennessee et al. by
Charles W Burson, Attorney
General of Tennessee,
Michael E. Moore, Solicitor General,
and
Michael W Catalano, and by the Attorneys General for
their respective States as follows:
Jimmy Evans of Alabama,
Bruce M. Botelho of Alaska,
Winston Bryant of
Arkansas,
Gale A. Norton of Colorado,
Charles M. Oberly
III of Delaware,
Robert A. Butterworth of Florida,
Larry EchoHawk of Idaho,
Roland W Burris of Illinois,
Pamela Fanning Carter of Indiana,
Chris Gorman of
Kentucky,
Richard P. I eyoub of Louisiana,
Frank
J. Kelley of Michigan,
Hubert H. Humphrey III
of Minnesota,
Mike Moore of Mississippi,
Joseph P.
Mazurek of Montana,
Frankie Sue Del Papa of Nevada,
Jeffrey R. Howard of New Hampshire,
Deborah T. Poritz
of New Jersey,
Michael F.
Easley of North Carolina,
Heidi Heitkamp of North Dakota,
Susan B. Loving of
Oklahoma,
T. Travis Medlock of South Carolina,
Mark
Barnett of South Dakota, and
Jeffrey L. Amestoy of
Vermont; and for the Council of State Governments et al. by
Richard Ruda and
Lee Fennell.
Charles H. Bell, Jr., and
Robert E. Leidigh filed
a brief for the California Political Attorneys Association as
amicus curiae.
1 The term "liberty" in the Fourteenth Amendment to the
Constitution makes the First Amendment applicable to the States.
The Fourteenth Amendment reads, in relevant part: "No State shall
... deprive any person of life, liberty, or property, without due
process of law .... " u. S. Const., Arndt. 14, § 1. Referring to
that Clause in his separate opinion in
Whitney v.
California, 274 U. S. 357 (1927),
Justice Brandeis stated that "all fundamental rights comprised
within the term liberty are protected by the Federal Constitution
from invasion by the States. The right of free speech, the right to
teach and the right of assembly are, of course, fundamental
rights."
Id., at 373 (concurring opinion). Although the text
of the First Amendment provides only that
"Congress shall
make no law ... abridging the freedom of speech ... ," Justice
Brandeis' view has been embedded in our law ever since. See
First Nat. Bank of Boston v.
Bellotti, 435 U. S. 765, 779-780
(1978); see also Stevens, The Bill of Rights: A Century of
Progress, 59 U. Chi. L. Rev. 13, 20, 25-26 (1992).
337
I
On April 27, 1988, Margaret McIntyre distributed leaflets to
persons attending a public meeting at the Blendon Middle School in
Westerville, Ohio. At this meeting, the superintendent of schools
planned to discuss an imminent referendum on a proposed school tax
levy. The leaflets expressed Mrs. McIntyre's opposition to the
levy.2 There is no suggestion that the text of her message was
false, misleading, or libelous. She had composed and printed it on
her home computer and had paid a professional printer to make
additional copies. Some of the handbills identified her as the
author; others merely purported to express the views of "CONCERNED
PARENTS AND TAX PAYERS." Except for the help provided by her son
and a friend, who placed some of the leaflets on car windshields in
the school parking lot, Mrs. McIntyre acted independently.
2 The following is one of Mrs. McIntyre's leaflets, in its
original typeface:
THANt; YOU.
CONCEl
TAX Po:IYERS
338
While Mrs. McIntyre distributed her handbills, an official of
the school district, who supported the tax proposal, advised her
that the unsigned leaflets did not conform to the Ohio election
laws. Undeterred, Mrs. McIntyre appeared at another meeting on the
next evening and handed out more of the handbills.
The proposed school levy was defeated at the next two elections,
but it finally passed on its third try in November 1988. Five
months later, the same school official filed a complaint with the
Ohio Elections Commission charging that Mrs. McIntyre's
distribution of unsigned leaflets violated § 3599.09(A) of the Ohio
Code.3 The commission agreed and imposed a fine of $100.
3 Ohio Rev. Code Ann. § 3599.09(A) (1988) provides:
"No person shall write, print, post, or distribute, or cause to
be written, printed, posted, or distributed, a notice, placard,
dodger, advertisement, sample ballot, or any other form of general
publication which is designed to promote the nomination or election
or defeat of a candidate, or to promote the adoption or defeat of
any issue, or to influence the voters in any election, or make an
expenditure for the purpose of financing political communications
through newspapers, magazines, outdoor advertising facilities,
direct mailings, or other similar types of general public political
advertising, or through flyers, handbills, or other nonperiodical
printed matter, unless there appears on such form of publication in
a conspicuous place or is contained within said statement the name
and residence or business address of the chairman, treasurer, or
secretary of the organization issuing the same, or the person who
issues, makes, or is responsible therefor. The disclaimer 'paid
political advertisement' is not sufficient to meet the requirements
of this division. When such publication is issued by the regularly
constituted central or executive committee of a political party,
organized as provided in Chapter 3517. of the Revised Code, it
shall be sufficiently identified if it bears the name of the
committee and its chairman or treasurer. No person, firm, or
corporation shall print or reproduce any notice, placard, dodger,
advertisement, sample ballot, or any other form of publication in
violation of this section. This section does not apply to the
transmittal of personal correspondence that is not reproduced by
machine for general distribution.
"The secretary of state may, by rule, exempt, from the
requirements of this division, printed matter and certain other
kinds of printed communications such as campaign buttons, balloons,
pencils, or like items, the size
339
The Franklin County Court of Common Pleas reversed.
Finding that Mrs. McIntyre did not "mislead the public nor act
in a surreptitious manner," the court concluded that the statute
was unconstitutional as applied to her conduct. App. to Pet. for
Cert. A-34 to A-35. The Ohio Court of Appeals, by a divided vote,
reinstated the fine. Notwithstanding doubts about the continuing
validity of a 1922 decision of the Ohio Supreme Court upholding the
statutory predecessor of § 3599.09(A), the majority considered
itself bound by that precedent.
Id., at A-20 to A-21, citing
State v.
Babst, 104 Ohio St. 167, 135 N. E. 525
(1922). The dissenting judge thought that our intervening decision
in
Talley v.
California, 362 U. S. 60 (1960), in
which we invalidated a city ordinance prohibiting all anonymous
leafletting, compelled the Ohio court to adopt a narrowing
construction of the statute to save its constitutionality. App. to
Pet. for Cert. A-30 to A-31.
The Ohio Supreme Court affirmed by a divided vote. The majority
distinguished Mrs. McIntyre's case from
Talley on the ground
that § 3599.09(A) "has as its purpose the identification of persons
who distribute materials containing false statements." 67 Ohio St.
3d 391, 394, 618 N. E. 2d 152, 154
or nature of which makes it unreasonable to add an
identification or disclaimer. The disclaimer or identification,
when paid for by a campaign committee, shall be identified by the
words 'paid for by' followed by the name and address of the
campaign committee and the appropriate officer of the committee,
identified by name and title."
Section 3599.09(B) contains a comparable prohibition against
unidentified communications uttered over the broadcasting
facilities of any radio or television station. No question
concerning that provision is raised in this case. Our opinion,
therefore, discusses only written communications and, particularly,
leaflets of the kind Mrs. McIntyre distributed. Cf.
Turner
Broadcasting System, Inc. v.
FCC, 512 U. S. 622, 637-638
(1994) (discussing application of First Amendment principles to
regulation of television and radio).
The complaint against Mrs. McIntyre also alleged violations of
two other provisions of the Ohio Code, but those charges were
dismissed and are not before this Court.
340
(1993). The Ohio court believed that such a law should be upheld
if the burdens imposed on the First Amendment rights of voters are
"'reasonable'" and
"'nondiscriminatory.'" Id., at
396, 618 N. E. 2d, at 155, quoting
Anderson v.
Celebrezze, 460 U. S. 780, 788
(1983). Under that standard, the majority concluded that the
statute was plainly valid:
"The minor requirement imposed by R.C. 3599.09 that those
persons producing campaign literature identify themselves as the
source thereof neither impacts the content of their message nor
significantly burdens their ability to have it disseminated. This
burden is more than counterbalanced by the state interest in
providing the voters to whom the message is directed with a
mechanism by which they may better evaluate its validity. Moreover,
the law serves to identify those who engage in fraud, libel or
false advertising. Not only are such interests sufficient to
overcome the minor burden placed upon such persons, these interests
were specifically acknowledged in [First Nat. Bank of Boston
v.] Bellotti[, 435 U. S. 765 (1978),] to
be regulations of the sort which would survive constitutional
scrutiny." 67 Ohio St. 3d, at 396, 618 N. E. 2d, at 155-156.
In dissent, Justice Wright argued that the statute should be
tested under a more severe standard because of its significant
effect "on the ability of individual citizens to freely express
their views in writing on political issues."
Id., at 398,
618 N. E. 2d, at 156-157. He concluded that § 3599.09(A) "is not
narrowly tailored to serve a compelling state interest and is,
therefore, unconstitutional as applied to McIntyre."
Id., at
401, 618 N. E. 2d, at 159.
Mrs. McIntyre passed away during the pendency of this
litigation. Even though the amount in controversy is only $100,
petitioner, as the executor of her estate, has pursued her claim in
this Court. Our grant of certiorari, 510 U. S.
341
1108 (1994), reflects our agreement with his appraisal of the
importance of the question presented.
II
Ohio maintains that the statute under review is a reasonable
regulation of the electoral process. The State does not suggest
that all anonymous publications are pernicious or that a statute
totally excluding them from the marketplace of ideas would be
valid. This is a wise (albeit implicit) concession, for the
anonymity of an author is not ordinarily a sufficient reason to
exclude her work product from the protections of the First
Amendment.
"Anonymous pamphlets, leaflets, brochures and even books have
played an important role in the progress of mankind."
Talley
v.
California, 362 U. S., at 64. Great works of literature
have frequently been produced by authors writing under assumed
names.4 Despite readers' curiosity and the public's interest in
identifying the creator of a work of art, an author generally is
free to decide whether or not to disclose his or her true identity.
The decision in favor of anonymity may be motivated by fear of
economic or official re-
4 American names such as Mark Twain (Samuel Langhorne Clemens)
and O. Henry (William Sydney Porter) come readily to mind. Benjamin
Franklin employed numerous different pseudonyms. See 2 W. Bruce,
Benjamin Franklin Self-Revealed: A Biographical and Critical Study
Based Mainly on His Own Writings, ch. 5 (2d ed. 1923).
Distinguished French authors such as Voltaire (Francois Marie
Arouet) and George Sand (Amandine Aurore Lucie Dupin), and British
authors such as George Eliot (Mary Ann Evans), Charles Lamb
(sometimes wrote as "Elia"), and Charles Dickens (sometimes wrote
as "Boz"), also published under assumed names. Indeed, some believe
the works of Shakespeare were actually written by the Earl of
Oxford rather than by William Shaksper of Stratford-on-Avon. See C.
Ogburn, The Mysterious William Shakespeare: The Myth & the
Reality (2d ed. 1992); but see S. Schoenbaum, Shakespeare's Lives
(2d ed. 1991) (adhering to the traditional view that Shaksper was
in fact the author). See also Stevens, The Shakespeare Canon of
Statutory Construction, 140 U. Pa. L. Rev. 1373 (1992) (commenting
on the competing theories).
342
taliation, by concern about social ostracism, or merely by a
desire to preserve as much of one's privacy as possible. Whatever
the motivation may be, at least in the field of literary endeavor,
the interest in having anonymous works enter the marketplace of
ideas unquestionably outweighs any public interest in requiring
disclosure as a condition of entry. 5 Accordingly, an author's
decision to remain anonymous, like other decisions concerning
omissions or additions to the content of a publication, is an
aspect of the freedom of speech protected by the First
Amendment.
The freedom to publish anonymously extends beyond the literary
realm. In
Talley, the Court held that the First Amendment
protects the distribution of unsigned handbills urging readers to
boycott certain Los Angeles merchants who were allegedly engaging
in discriminatory employment practices.
362 U. S. 60. Writing for
the Court, Justice Black noted that "[p]ersecuted groups and sects
from time to time throughout history have been able to criticize
oppressive practices and laws either anonymously or not at all."
Id., at 64. Justice Black recalled England's abusive press
licensing laws and seditious libel prosecutions, and he reminded us
that even the arguments favoring the ratification of the
Constitution advanced in the Federalist Papers were published under
fictitious names.
Id., at 64-65. On occasion, quite apart
from any threat of persecution, an advocate may believe her ideas
will be more persuasive if her readers are unaware of her identity.
Anonymity thereby provides a way for a writer who may be personally
unpopular to ensure that readers will not prejudge her message
simply because they do not like its proponent. Thus, even in the
field of
5 Though such a requirement might provide assistance to critics
in evaluating the quality and significance of the writing, it is
not indispensable. To draw an analogy from a nonliterary context,
the now-pervasive practice of grading law school examination papers
"blindly" (i.
e., under a system in which the professor does
not know whose paper she is grading) indicates that such
evaluations are possible-indeed, perhaps more reliable-when any
bias associated with the author's identity is prescinded.
343
political rhetoric, where "the identity of the speaker is an
important component of many attempts to persuade,"
City
of Ladue v.
Gilleo, 512 U. S. 43, 56 (1994)
(footnote omitted), the most effective advocates have sometimes
opted for anonymity. The specific holding in
Talley related
to advocacy of an economic boycott, but the Court's reasoning
embraced a respected tradition of anonymity in the advocacy of
political causes.6 This tradition is perhaps best exemplified by
the secret ballot, the hard-won right to vote one's conscience
without fear of retaliation.
III
California had defended the Los Angeles ordinance at issue in
Talley as a law "aimed at providing a way to identify those
responsible for fraud, false advertising and libel." 362 U. S., at
64. We rejected that argument because nothing in the text or
legislative history of the ordinance limited its application to
those evils.7
Ibid. We then made clear that
6 That tradition is most famously embodied in the Federalist
Papers, authored by James Madison, Alexander Hamilton, and John
Jay, but signed "Publius." Publius' opponents, the
Anti-Federalists, also tended to publish under pseudonyms:
prominent among them were "Cato," believed to be New York Governor
George Clinton; "Centinel," probably Samuel Bryan or his father,
Pennsylvania judge and legislator George Bryan; "The Federal
Farmer," who may have been Richard Henry Lee, a Virginia member of
the Continental Congress and a signer of the Declaration of
Independence; and "Brutus," who may have been Robert Yates, a New
York Supreme Court justice who walked out on the Constitutional
Convention. 2 H. Storing, ed., The Complete Anti-Federalist (1981).
A forerunner of all of these writers was the pre-Revolutionary War
English pamphleteer "Junius," whose true identity remains a
mystery. See Encyclopedia of Colonial and Revolutionary America 220
(J. Faragher ed. 1990) (positing that "Junius" may have been Sir
Phillip Francis). The "Letters of Junius" were "widely reprinted in
colonial newspapers and lent considerable support to the
revolutionary cause."
Powell v.
McCormack, 395
7 In his concurring opinion, Justice Harlan added these
words:
"Here the State says that this ordinance is aimed at the
prevention of 'fraud, deceit, false advertising, negligent use of
words, obscenity, and libel,' in that it will aid in the detection
of those responsible for spreading
344
we did "not pass on the validity of an ordinance limited to
prevent these or any other supposed evils."
Ibid. The Ohio
statute likewise contains no language limiting its application to
fraudulent, false, or libelous statements; to the extent,
therefore, that Ohio seeks to justify § 3599.09(A) as a means to
prevent the dissemination of untruths, its defense must fail for
the same reason given in
Talley. As the facts of this case
demonstrate, the ordinance plainly applies even when there is no
hint of falsity or libel.
Ohio's statute does, however, contain a different
limitation:
It applies only to unsigned documents designed to influence
voters in an election. In contrast, the Los Angeles ordinance
prohibited all anonymous handbilling "in any place under any
circumstances."
Id., at 60-61. For that reason, Ohio
correctly argues that
Talley does not necessarily control
the disposition of this case. We must, therefore, decide whether
and to what extent the First Amendment's protection of anonymity
encompasses documents intended to influence the electoral
process.
Ohio places its principal reliance on cases such as
Anderson v.
Celebrezze, 460 U. S. 780 (1983);
Storer v.
Brown, 415 U. S. 724 (1974); and
Burdick v.
Takushi, 504 U. S. 428 (1992), in
which we reviewed election code provisions governing the voting
process itself. See
Anderson, supra (filing deadlines);
Storer, supra (ballot access);
Burdick, supra
(write-in voting); see also
Tashjian v.
Republican Party
of Conn., 479 U.
S. 208 (1986) (eligibility of independent voters to vote in
party primaries). In those cases we refused to adopt "any
material of that character. But the ordinance is not so limited,
and I think it will not do for the State simply to say that the
circulation of all anonymous handbills must be suppressed in order
to identify the distributors of those that may be of an obnoxious
character. In the absence of a more substantial showing as to Los
Angeles' actual experience with the distribution of obnoxious
handbills, such a generality is for me too remote to furnish a
constitutionally acceptable justification for the deterrent effect
on free speech which this all-embracing ordinance is likely to
have." 362 U. S., at 66-67 (footnote omitted).
345
'litmus-paper test' that will separate valid from invalid
restrictions."
Anderson, 460 U. S., at 789, quoting
Storer, 415 U. S., at 730. Instead, we pursued an analytical
process comparable to that used by courts "in ordinary
litigation":
We considered the relative interests of the State and the
injured voters, and we evaluated the extent to which the State's
interests necessitated the contested restrictions.
Anderson,
460 U. S., at 789. Applying similar reasoning in this case, the
Ohio Supreme Court upheld § 3599.09(A) as a
"reasonable" and
"nondiscriminatory" burden on the rights of voters. 67 Ohio
St. 3d, at 396, 618 N. E. 2d, at 155, quoting
Anderson, 460
U. S., at 788.
The "ordinary litigation" test does not apply here. Unlike the
statutory provisions challenged in
Storer and
Anderson, § 3599.09(A) of the Ohio Code does not control the
mechanics of the electoral process. It is a regulation of pure
speech. Moreover, even though this provision applies evenhandedly
to advocates of differing viewpoints,S it is a direct regulation of
the content of speech. Every written document covered by the
statute must contain "the name and residence or business address of
the chairman, treasurer, or secretary of the organization issuing
the same, or the person who issues, makes, or is responsible
therefor." Ohio Rev. Code Ann. § 3599.09(A) (1988). Furthermore,
the category of covered documents is defined by their content-only
those publications containing speech designed to influence the
voters in an election need bear the required markings.9
Ibid. Consequently, we are not faced with an ordinary
election restric-
8 Arguably, the disclosure requirement places a more significant
burden on advocates of unpopular causes than on defenders of the
status quo. For purposes of our analysis, however, we assume the
statute evenhandedly burdens all speakers who have a legitimate
interest in remaining anonymous.
9 Covered documents are those "designed to promote the
nomination or election or defeat of a candidate, or to promote the
adoption or defeat of any issue, or to influence the voters in any
election .... " §3599.09(A).
346
tion; this case "involves a limitation on political expression
subject to exacting scrutiny."
Meyer v.
Grant,
486 U. S. 414,
420 (1988).10
Indeed, as we have explained on many prior occasions, the
category of speech regulated by the Ohio statute occupies the core
of the protection afforded by the First Amendment:
"Discussion of public issues and debate on the qualifications of
candidates are integral to the operation of the system of
government established by our Constitution. The First Amendment
affords the broadest protection to such political expression in
order 'to assure [the] unfettered interchange of ideas for the
bringing about of political and social changes desired by the
people.' Roth v. United States, 354 U. S. 476, 484
(1957). Although First Amendment protections are not confined to
'the exposition of ideas,' Winters v. New York, 333
U. S. 507, 510 (1948), 'there is practically universal agreement
that a major purpose of that Amendment was to protect the free
discussion of governmental affairs, ... of course includ[ing]
discussions of candidates ... .' Mills v. Alabama,
384 U. S. 214,
218 (1966). This no more than reflects our 'profound national
commitment to the principle that debate on public issues should be
uninhibited, robust, and wide-open,' New York Times Co. v.
Sullivan, 376
U. S. 254, 270 (1964). In a republic where the people are
sovereign, the ability of the citi-
10 In
Meyer, we unanimously applied strict scrutiny to
invalidate an election-related law making it illegal to pay
petition circulators for obtaining signatures to place an
initiative on the state ballot. Similarly, in
Burson v.
Freeman, 504
U. S. 191 (1992), although the law at issueforbidding
campaign-related speech within 100 feet of the entrance to a
polling place-was an election-related restriction, both the
plurality and dissent applied strict scrutiny because the law was
"a facially contentbased restriction on political speech in a
public forum."
Id., at 198; see also
id., at 212-213
(KENNEDY, J., concurring);
id., at 217 (STEVENS, J.,
dissenting).
347
zenry to make informed choices among candidates for office is
essential, for the identities of those who are elected will
inevitably shape the course that we follow as a nation. As the
Court observed in Monitor Patriot Co. v. Roy,
401 U. S. 265,
272 (1971), 'it can hardly be doubted that the constitutional
guarantee has its fullest and most urgent application precisely to
the conduct of campaigns for political office.'" Buckley v.
Valeo, 424 U. S.
1, 14-15 (1976) (per curiam).
Of course, core political speech need not center on a candidate
for office. The principles enunciated in
Buckley extend
equally to issue-based elections such as the school tax referendum
that Mrs. McIntyre sought to influence through her handbills. See
First Nat. Bank of Boston v.
Bellotti, 435 U. S. 765, 776-777
(1978) (speech on income tax referendum "is at the heart of the
First Amendment's protection"). Indeed, 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. See
International Soc. for Krishna
Consciousness, Inc. v.
Lee, 505 U. S. 672 (1992);
Lovell v.
City of Griffin, 303 U. S. 444 (1938).
That this advocacy occurred in the heat of a controversial
referendum vote only strengthens the protection afforded to Mrs.
McIntyre's expression:
Urgent, important, and effective speech can be no less protected
than impotent speech, lest the right to speak be relegated to those
instances when it is least needed. See
Terminiello v.
Chicago, 337 U.
S. 1, 4 (1949). No form of speech is entitled to greater
constitutional protection than Mrs. McIntyre~.
When a law burdens core political speech, we apply "exacting
scrutiny," and we uphold the restriction only if it is narrowly
tailored to serve an overriding state interest. See,
e. g.,
Bellotti, 435 U. S., at 786. Our precedents thus make
abundantly clear that the Ohio Supreme Court applied a
significantly more lenient standard than is appropriate in a case
of this kind.
348
IV
Nevertheless, the State argues that, even under the strictest
standard of review, the disclosure requirement in § 3599.09(A) is
justified by two important and legitimate state interests. Ohio
judges its interest in preventing fraudulent and libelous
statements and its interest in providing the electorate with
relevant information to be sufficiently compelling to justify the
anonymous speech ban. These two interests necessarily overlap to
some extent, but it is useful to discuss them separately.
Insofar as the interest in informing the electorate means
nothing more than the provision of additional information that may
either buttress or undermine the argument in a document, we think
the identity of the speaker is no different from other components
of the document's content that the author is free to include or
excludeY We have already held that the State may not compel a
newspaper that prints editorials critical of a particular candidate
to provide space for a reply by the candidate.
Miami Herald
Publishing Co. v.
Tornillo, 418 U. S. 241 (1974). The
simple interest in providing voters with additional relevant
information does not justify a state requirement that a writer make
statements or disclosures she would otherwise omit. Moreover, in
the case of a handbill written by a private citizen who is not
known to the recipient, the name and address of the author add
little, if anything, to the reader's ability to evaluate the
11 "Of course, the identity of the source is helpful in
evaluating ideas.
But 'the best test of truth is the power of the thought to get
itself accepted in the competition of the market'
(Abrams v.
United States, [
250 U. S. 616, 630 (1919)
(Holmes, J., dissenting)]). Don't underestimate the common man.
People are intelligent enough to evaluate the source of an
anonymous writing. They can see it is anonymous. They know it is
anonymous. They can evaluate its anonymity along with its message,
as long as they are permitted, as they must be, to read that
message. And then, once they have done so, it is for them to decide
what is 'responsible', what is valuable, and what is truth."
New
York v.
Duryea, 76 Misc. 2d 948, 966-967,351 N. Y. S. 2d
978, 996 (1974) (striking down similar New York statute as
overbroad).
349
document's message. Thus, Ohio's informational interest is
plainly insufficient to support the constitutionality of its
disclosure requirement.
The state interest in preventing fraud and libel stands on a
different footing. We agree with Ohio's submission that this
interest carries special weight during election campaigns when
false statements, if credited, may have serious adverse
consequences for the public at large. Ohio does not, however, rely
solely on § 3599.09(A) to protect that interest. Its Election Code
includes detailed and specific prohibitions against making or
disseminating false statements during political campaigns. Ohio
Rev. Code Ann. §§ 3599.09.1(B), 3599.09.2(B) (1988). These
regulations apply both to candidate elections and to issue-driven
ballot measures.12 Thus,
12 Section 3599.09.1(B) provides:
"No person, during the course of any campaign for nomination or
election to public office or office of a political party, by means
of campaign materials, including sample ballots, an advertisement
on radio or television or in a newspaper or periodical, a public
speech, press release, or otherwise, shall knowingly and with
intent to affect the outcome of such campaign do any of the
following:
"(1) Use the title of an office not currently held by a
candidate in a manner that implies that the candidate does
currently hold that office or use the term 're-elect' when the
candidate has never been elected at a primary, general, or special
election to the office for which he is a candidate;
"(2) Make a false statement concerning the formal schooling or
training completed or attempted by a candidate; a degree, diploma,
certificate, scholarship, grant, award, prize, or honor received,
earned, or held by a candidate; or the period of time during which
a candidate attended any school, college, community technical
school, or institution;
"(3) Make a false statement concerning the professional,
occupational, or vocational licenses held by a candidate, or
concerning any position the candidate held for which he received a
salary or wages;
"(4) Make a false statement that a candidate or public official
has been indicted or convicted of a theft offense, extortion, or
other crime involving financial corruption or moral turpitude;
"(5) Make a statement that a candidate has been indicted for any
crime or has been the subject of a finding by the Ohio elections
commission without disclosing the outcome of any legal proceedings
resulting from the indictment or finding;
350
Ohio's prohibition of anonymous leaflets plainly is not its
principal weapon against fraud.13 Rather, it serves as an aid to
enforcement of the specific prohibitions and as a deterrent
"(6) Make a false statement that a candidate or official has a
record of treatment or confinement for mental disorder;
"(7) Make a false statement that a candidate or official has
been subjected to military discipline for criminal misconduct or
dishonorably discharged from the armed services;
"(8) Falsely identify the source of a statement, issue
statements under the name of another person without authorization,
or falsely state the endorsement of or opposition to a candidate by
a person or publication;
"(9) Make a false statement concerning the voting record of a
candidate or public official;
"(10) Post, publish, circulate, distribute, or otherwise
disseminate a false statement, either knowing the same to be false
or with reckless disregard of whether it was false or not,
concerning a candidate that is designed to promote the election,
nomination, or defeat of the candidate. As used in this section,
'voting record' means the recorded 'yes' or 'no' vote on a bill,
ordinance, resolution, motion, amendment, or confirmation."
Section 3599.09.2(B) provides:
"No person, during the course of any campaign in advocacy of or
in opposition to the adoption of any ballot proposition or issue,
by means of campaign material, including sample ballots, an
advertisement on radio or television or in a newspaper or
periodical, a public speech, a press release, or otherwise, shall
knowingly and with intent to affect the outcome of such campaign do
any of the following:
"(1) Falsely identify the source of a statement, issue
statements under the name of another person without authorization,
or falsely state the endorsement of or opposition to a ballot
proposition or issue by a person or publication;
"(2) Post, publish, circulate, distribute, or otherwise
disseminate, a false statement, either knowing the same to be false
or acting with reckless disregard of whether it was false or not,
that is designed to promote the adoption or defeat of any ballot
proposition or issue." §3599.09.2(B).
We need not, of course, evaluate the constitutionality of these
provisions. We quote them merely to emphasize that Ohio has
addressed directly the problem of election fraud. To the extent the
anonymity ban indirectly seeks to vindicate the same goals, it is
merely a supplement to the above provisions.
13 The same can be said with regard to "libel," as many of the
above-quoted Election Code provisions prohibit false statements
about candidates. To the extent those provisions may be
underinclusive, Ohio courts also
351
to the making of false statements by unscrupulous prevaricators.
Although these ancillary benefits are assuredly legitimate, we are
not persuaded that they justify § 3599.09(A)'s extremely broad
prohibition.
As this case demonstrates, the prohibition encompasses documents
that are not even arguably false or misleading. It applies not only
to the activities of candidates and their organized supporters, but
also to individuals acting independently and using only their own
modest resources.14 It applies not only to elections of public
officers, but also to
enforce the common-law tort of defamation. See,
e. g.,
Varanese v.
Gall, 35 Ohio St. 3d 78, 518 N. E. 2d 1177
(1988) (applying the standard of
New York Times Co. v.
Sullivan, 376
U. S. 254 (1964), to an Ohio public official's state-law libel
claim arising from an election-related advertisement). Like other
forms of election fraud, then, Ohio directly attacks the problem of
election-related libel; to the extent that the anonymity ban serves
the same interest, it is merely a supplement.
14 We stressed the importance of this distinction in
Buckley v.
Valeo, 424 U. S. 1, 37 (1976):
"Treating these expenses [the expenses incurred by campaign
volunteers] as contributions when made to the candidate's campaign
or at the direction of the candidate or his staff forecloses an
avenue of abuse without limiting actions voluntarily undertaken by
citizens independently of a candidate's campaign." (Footnote
omitted.)
Again, in striking down the independent expenditure limitations
of the Federal Election Campaign Act of 1971, 18 U. S. C. §
608(e)(I) (1970 ed., Supp. IV) (repealed 1976), we distinguished
another section of the statute (§ 608(b), which we upheld) that
placed a ceiling on contributions to a political campaign.
"By contrast, § 608(e)(I) limits expenditures for express
advocacy of candidates made totally independently of the candidate
and his campaign. Unlike contributions, such independent
expenditures may well provide little assistance to the candidate's
campaign and indeed may prove counterproductive. The absence of
prearrangement and coordination of an expenditure with the
candidate or his agent not only undermines the value of the
expenditure to the candidate, but also alleviates the danger that
expenditures will be given as a
quid pro quo for improper
commitments from the candidate. Rather than preventing
circumvention of the contribution limitations, § 608(e)(I) severely
restricts all independent advocacy despite its substantially
diminished potential for abuse." 424 U. S., at 47.
352
ballot issues that present neither a substantial risk of libel
nor any potential appearance of corrupt advantage.15 It applies not
only to leaflets distributed on the eve of an election, when the
opportunity for reply is limited, but also to those distributed
months in advance.16 It applies no matter what the character or
strength of the author's interest in anonymity. Moreover, as this
case also demonstrates, the absence of the author's name on a
document does not necessarily protect either that person or a
distributor of a forbidden document from being held responsible for
compliance with the Election Code. Nor has the State explained why
it can
15 "The risk of corruption perceived in cases involving
candidate elections,
e. g., United States v.
Automobile
Workers, [
352 U.
S. 567 (1957)];
United States v.
eIO, [
335 U. S. 106 (1948)],
simply is not present in a popular vote on a public issue."
First Nat. Bank of Boston v.
Bellotti, 435 U. S. 765, 790 (1978)
(footnote omitted).
16 As the Illinois Supreme Court explained in
People v.
White, 116 Ill. 2d 171, 180,506 N. E. 2d 1284, 1288 (Ill.
1987), which struck down a similar statute:
"Implicit in the State's ... justification is the concern that
the public could be misinformed and an election swayed on the
strength of an eleventhhour anonymous smear campaign to which the
candidate could not meaningfully respond. The statute cannot be
upheld on this ground, however, because it sweeps within its net a
great deal of anonymous speech completely unrelated to this
concern. In the first place, the statute has no time limit and
applies to literature circulated two months prior to an election as
well as that distributed two days before. The statute also
prohibits anonymous literature supporting or opposing not only
candidates, but also referenda. A public question clearly cannot be
the victim of character assassination."
The temporal breadth of the Ohio statute also distinguishes it
from the Tennessee law that we upheld in
Burson v.
Freeman, 504
U. S. 191 (1992). The Tennessee statute forbade electioneering
within 100 feet of the entrance to a polling place. It applied only
on election day. The State's interest in preventing voter
intimidation and election fraud was therefore enhanced by the need
to prevent last-minute misinformation to which there is no time to
respond. Moreover, Tennessee geographically confined the reach of
its law to a 100-foot no-solicitation zone. By contrast, the Ohio
law forbids anonymous campaign speech wherever it occurs.
353
more easily enforce the direct bans on disseminating false
documents against anonymous authors and distributors than against
wrongdoers who might use false names and addresses in an attempt to
avoid detection. We recognize that a State's enforcement interest
might justify a more limited identification requirement, but Ohio
has shown scant cause for inhibiting the leafletting at issue
here.
V
Finally, Ohio vigorously argues that our opinions in
First
Nat. Bank of Boston v.
Bellotti, 435 U. S. 765 (1978), and
Buckley v.
Valeo, 424 U. S. 1 (1976)
(per
curiam), amply support the constitutionality of its disclosure
requirement. N either case is controlling: The former concerned the
scope of First Amendment protection afforded to corporations; the
relevant portion of the latter concerned mandatory disclosure of
campaign-related expenditures. Neither case involved a prohibition
of anonymous campaign literature.
In
Bellotti, we reversed a judgment of the Supreme
Judicial Court of Massachusetts sustaining a state law that
prohibited corporate expenditures designed to influence the vote on
referendum proposals.
435 U. S. 765. The
Massachusetts court had held that the First Amendment protects
corporate speech only if its message pertains directly to the
business interests of the corporation.
Id., at 771-772.
Consistently with our holding today, we noted that the "inherent
worth of the speech in terms of its capacity for informing the
public does not depend upon the identity of its source, whether
corporation, association, union, or individual."
Id., at
777. We also made it perfectly clear that we were not deciding
whether the First Amendment's protection of corporate speech is
coextensive with the protection it affords to individualsP
Accordingly, although we commented in dicta
17"In deciding whether this novel and restrictive gloss on the
First Amendment comports with the Constitution and the precedents
of this Court, we need not survey the outer boundaries of the
Amendment's pro-
354
on the prophylactic effect of requiring identification of the
source of corporate advertising,18 that footnote did not
necessarily apply to independent communications by an individual
like Mrs. McIntyre.
Our reference in the
Bellotti footnote to the
"prophylactic effect" of disclosure requirements cited a portion of
our earlier opinion in
Buckley, in which we stressed the
importance of providing "the electorate with information 'as to
where political campaign money comes from and how it is spent by
the candidate.'" 424 U. S., at 66. We observed that the "sources of
a candidate's financial support also alert the voter to the
interests to which a candidate is most likely to be responsive and
thus facilitate predictions of future performance in office."
Id., at 67. Those comments concerned contributions to the
candidate or expenditures authorized by the candidate or his
responsible agent. They had no reference to the kind of independent
activity pursued by Mrs. McIntyre. Required disclosures about the
level of financial support a candidate has received from various
sources are supported by an interest in avoiding the appearance of
corruption that has no application to this case.
tectian of corporate speech, or address the abstract question
whether corporations have the full measure of rights that
individuals enjoy under the First Amendment."
Bellotti, 435
U. S., at 777-778.
In a footnote to that passage, we continued:
"Nor is there any occasion to consider in this case whether,
under different circumstances, a justification for a restriction on
speech that would be inadequate as applied to individuals might
suffice to sustain the same restriction as applied to corporations,
unions, or like entities."
Id., at 777-778, n. 13.
18 "Corporate advertising, unlike some methods of participation
in political campaigns, is likely to be highly visible.
Identification of the source of advertising may be required as a
means of disclosure, so that the people will be able to evaluate
the arguments to which they are being subjected. See
Buckley, 424 U. S., at 66-67;
United States v.
Harriss, 347
U. S. 612, 625-626 (1954). In addition, we emphasized in
Buckley the prophylactic effect of requiring that the source
of communication be disclosed. 424 U. S., at 67."
Id., at
792, n. 32.
355
True, in another portion of the
Buckley opinion we
expressed approval of a requirement that even "independent
expenditures" in excess of a threshold level be reported to the
Federal Election Commission.
Id., at 75-76. But that
requirement entailed nothing more than an identification to the
Commission of the amount and use of money expended in support of a
candidate. See
id., at 157-159,160 (reproducing relevant
portions of the statute 19). Though such mandatory reporting
undeniably impedes protected First Amendment activity, the
intrusion is a far cry from compelled selfidentification on all
election-related writings. A written election-related
document-particularly a leaflet-is often a personally crafted
statement of a political viewpoint. Mrs. McIntyre's handbills
surely fit that description. As such, identification of the author
against her will is particularly intrusive; it reveals unmistakably
the content of her thoughts on a controversial issue. Disclosure of
an expenditure and its use, without more, reveals far less
information. It may be information that a person prefers to keep
secret, and undoubtedly it often gives away something about the
spender's political views. Nonetheless, 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.
19 One of those provisions, addressing contributions by campaign
committees, required:
"the identification of each person to whom expenditures have
been made by such committee or on behalf of such committee or
candidate within the calendar year in an aggregate amount or value
in excess of $100, the amount, date, and purpose of each such
expenditure and the name and address of, and office sought by, each
candidate on whose behalf such expenditure was made." 2 U. S. C. §
434(b)(9) (1970 ed., Supp. IV) (reprinted in
Buckley, 424 U.
S., at 158).
A separate provision, 2 U. S. C. § 434(e) (1970 ed., Supp. IV)
(reprinted in
Buckley, 424 U. S., at 160), required
individuals making contributions or expenditures to file statements
containing the same information.
356
Not only is the Ohio statute's infringement on speech more
intrusive than the
Buckley disclosure requirement, but it
rests on different and less powerful state interests. The Federal
Election Campaign Act of 1971, at issue in
Buckley,
regulates only candidate elections, not referenda or other
issue-based ballot measures; and we construed "independent
expenditures" to mean only those expenditures that "expressly
advocate the election or defeat of a clearly identified candidate."
Id., at 80. In candidate elections, the Government can
identify a compelling state interest in avoiding the corruption
that might result from campaign expenditures. Disclosure of
expenditures lessens the risk that individuals will spend money to
support a candidate as a
quid pro quo for special treatment
after the candidate is in office. Curriers of favor will be
deterred by the knowledge that all expenditures will be scrutinized
by the Federal Election Commission and by the public for just this
sort of abuse.20 Moreover, the federal Act contains numerous
legitimate disclosure requirements for campaign organizations; the
similar requirements for independent expenditures serve to ensure
that a campaign organization will not seek to evade disclosure by
routing its expenditures through individual supporters. See
Buckley, 424 U. S., at 76. In short, although
Buckley
may permit a more narrowly drawn statute, it surely is not
authority for upholding Ohio's open-ended provision.21
20 This interest also serves to distinguish
United States
v.
Harriss, 347 U. S. 612 (1954), in which we upheld limited
disclosure requirements for lobbyists. The activities of lobbyists
who have direct access to elected representatives, if undisclosed,
may well present the appearance of corruption.
21 We note here also that the federal Act, while constitutional
on its face, may not be constitutional in all its applications. Cf.
Brown v.
Socialist Workers '74
Campaign Comm.
(Ohio), 459 U. S.
87,88 (1982) (holding Ohio disclosure requirements
unconstitutional as applied to "a minor political
357
VI
Under our Constitution, anonymous pamphleteering is not a
pernicious, fraudulent practice, but an honorable tradition of
advocacy and of dissent. Anonymity is a shield from the tyranny of
the majority. See generally J. Mill, On Liberty and Considerations
on Representative Government 1, 3-4 (R. McCallum ed. 1947). It thus
exemplifies the purpose behind the Bill of Rights, and of the First
Amendment in particular: to protect unpopular individuals from
retaliation-and their ideas from suppression-at the hand of an
intolerant society. The right to remain anonymous may be abused
when it shields fraudulent conduct. But political speech by its
nature will sometimes have unpalatable consequences, and, in
general, our society accords greater weight to the value of free
speech than to the dangers of its misuse. See
Abrams v.
United States, 250 U. S. 616, 630-631
(1919) (Holmes, J., dissenting). Ohio has not shown that its
interest in preventing the misuse of anonymous election-related
speech justifies a prohibition of all uses of that speech. The
State may, and does, punish fraud directly. But it cannot seek to
punish fraud indirectly by indiscriminately outlawing a category of
speech, based on its content, with no necessary relationship to the
danger sought to be prevented. One would be hard pressed to think
of a better example of the pitfalls of Ohio's blunderbuss approach
than the facts of the case before us.
The judgment of the Ohio Supreme Court is reversed.
It is so ordered.
party which historically has been the object of harassment by
government officials and private parties");
Buckley, 424 U.
S., at 74 (exempting minor parties from disclosure requirements if
they can show "a reasonable probability that the compelled
disclosure of a party's contributors' names will subject them to
threats, harassment, or reprisals from either Government officials
or private parties").
358
JUSTICE GINSBURG, concurring.
The dissent is stirring in its appreciation of democratic
values. But I do not see the Court's opinion as unguided by
"bedrock principle," tradition, or our case law. See
post,
at 375-378, 378-380. Margaret McIntyre's case, it seems to me,
bears a marked resemblance to Margaret Gilleo's case 1 and Mary
Grace's.2 All three decisions, I believe, are sound, and hardly
sensational, applications of our First Amendment jurisprudence.
In for a calf is not always in for a cow. The Court's decision
finds unnecessary, overintrusive, and inconsistent with American
ideals the State's imposition of a fine on an individual leafleteer
who, within her local community, spoke her mind, but sometimes not
her name. 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. Appropriately leaving open matters not
presented by McIntyre's handbills, the Court recognizes that a
State's interest in protecting an election process "might justify a
more limited identification requirement."
Ante, at 353. But
the Court has convincingly explained why Ohio lacks "cause for
inhibiting the leafletting at issue here."
Ibid.
JUSTICE THOMAS, concurring in the judgment.
I agree with the majority's conclusion that Ohio's election law,
Ohio Rev. Code Ann. § 3599.09(A) (1988), is inconsistent with the
First Amendment. I would apply, however, a dif-
1 See
City of Ladue v.
Gilleo, 512 U. S. 43 (1994), in
which we held that the city of Ladue could not prohibit homeowner
Gilleo's display of a small sign, on her lawn or in a window,
opposing war in the Persian Gulf.
2 Grace was the "lone picketer" who stood on the sidewalk in
front of this Court with a sign containing the text of the First
Amendment, prompting us to exclude public sidewalks from the
statutory ban on display of a "flag, banner, or device" on Court
grounds.
United States v.
Grace, 461 U. S. 171, 183
(1983).
359
ferent methodology to this case. Instead of asking whether "an
honorable tradition" of anonymous speech has existed throughout
American history, or what the "value" of anonymous speech might be,
we should determine whether the phrase "freedom of speech, or of
the press," as originally understood, protected anonymous political
leafletting. I believe that it did.
I
The First Amendment states that the government "shall make no
law ... abridging the freedom of speech, or of the press." U. S.
Const., Amdt. 1. When interpreting the Free Speech and Press
Clauses, we must be guided by their original meaning, for "[t]he
Constitution is a written instrument. As such its meaning does not
alter. That which it meant when adopted, it means now."
South
Carolina v.
United States, 199 U. S. 437, 448
(1905). We have long recognized that the meaning of the
Constitution "must necessarily depend on the words of the
constitution [and] the meaning and intention of the convention
which framed and proposed it for adoption and ratification to the
conventions ... in the several states."
Rhode Island v.
Massachusetts, 12 Pet. 657, 721 (1838). See also
INS
v.
Chadha, 462
U. S. 919, 959 (1983). We should seek the original
understanding when we interpret the Speech and Press Clauses, just
as we do when we read the Religion Clauses of the First Amendment.
When the Framers did not discuss the precise question at issue, we
have turned to "what history reveals was the contemporaneous
understanding of [the Establishment Clause's] guarantees."
Lynch v.
Donnelly, 465 U. S. 668, 673
(1984). "[T]he line we must draw between the permissible and the
impermissible is one which accords with history and faithfully
reflects the understanding of the Founding Fathers."
School
Dist. of Abington Township v.
Schempp, 374 U. S. 203, 294 (1963)
(Brennan, J., concurring); see also
Lee v.
Weisman,
505 U. S. 577, 632-633 (1992) (SCALIA, J., dissenting).
360
II
Unfortunately, we have no record of discussions of anonymous
political expression either in the First Congress, which drafted
the Bill of Rights, or in the state ratifying conventions. Thus,
our analysis must focus on the practices and beliefs held by the
Founders concerning anonymous political articles and pamphlets. As
an initial matter, we can safely maintain that the leaflets at
issue in this case implicate the freedom of the press. When the
Framers thought of the press, they did not envision the large,
corporate newspaper and television establishments of our modern
world. Instead, they employed the term "the press" to refer to the
many independent printers who circulated small newspapers or
published writers' pamphlets for a fee. See generally B. Bailyn
& J. Hench, The Press & the American Revolution (1980); L.
Levy, Emergence of a Free Press (1985); B. Bailyn, The Ideological
Origins of the American Revolution (1967). "It was in this form-as
pamphlets-that much of the most important and characteristic
writing of the American Revolution occurred." 1 B. Bailyn,
Pamphlets of the American Revolution 3 (1965). This practice
continued during the struggle for ratification. See,
e.
g., Pamphlets on the Constitution of the United States (P.
Ford ed. 1888). Regardless of whether one designates the right
involved here as one of press or one of speech, however, it makes
little difference in terms of our analysis, which seeks to
determine only whether the First Amendment, as originally
understood, protects anonymous writing.
There is little doubt that the Framers engaged in anonymous
political writing. The essays in the Federalist Papers, published
under the pseudonym of "Publius," are only the most famous example
of the outpouring of anonymous political writing that occurred
during the ratification of the Constitution. Of course, the simple
fact that the Framers engaged in certain conduct does not
necessarily prove that they forbade its prohibition by the
government. See
post, at 373
361
(SCALIA, J., dissenting). In this case, however, the historical
evidence indicates that Founding-era Americans opposed attempts to
require that anonymous authors reveal their identities on the
ground that forced disclosure violated the "freedom of the
press."
For example, the earliest and most famous American experience
with freedom of the press, the 1735 Zenger trial, centered around
anonymous political pamphlets. The case involved a printer, John
Peter Zenger, who refused to reveal the anonymous authors of
published attacks on the Crown Governor of New York. When the
Governor and his council could not discover the identity of the
authors, they prosecuted Zenger himself for seditious libel. See J.
Alexander, A Brief Narrative of the Case and Trial of John Peter
Zenger 9-19 (S. Katz ed. 1972). Although the case set the Colonies
afire for its example of a jury refusing to convict a defendant of
seditious libel against Crown authorities, it also signified at an
early moment the extent to which anonymity and the freedom of the
press were intertwined in the early American mind.
During the Revolutionary and Ratification periods, the Framers'
understanding of the relationship between anonymity and freedom of
the press became more explicit. In 1779, for example, the
Continental Congress attempted to discover the identity of an
anonymous article in the Pennsylvania Packet signed by the name
"Leonidas." Leonidas, who actually was Dr. Benjamin Rush, had
attacked the Members of Congress for causing inflation throughout
the States and for engaging in embezzelment and fraud. 13 Letters
of Delegates to Congress 1774-1789, p. 141, n. 1 (G. Gawalt &
R. Gephart eds. 1986). Elbridge Gerry, a delegate from
Massachusetts, moved to haul the printer of the newspaper before
Congress to answer questions concerning Leonidas. Several Members
of Congress then rose to oppose Gerry's motion on the ground that
it invaded the freedom of the press. Merriweather Smith of Virginia
rose, quoted from
362
the offending article with approval, and then finished with a
declaration that "[w]hen the liberty of the Press shall be
restrained ... the liberties of the People will be at an end."
Henry Laurens, Notes of Debates, July 3, 1779,
id., at 139.
Supporting Smith, John Penn of North Carolina argued that the
writer "no doubt had
good designs," and that "[t]he liberty
of the Press ought not to be restrained."
Ibid. In the end,
these arguments persuaded the assembled delegates, who "sat mute"
in response to Gerry's motion.
Id., at 141. Neither the
printer nor Dr. Rush ever appeared before Congress to answer for
their publication. D. Teeter, Press Freedom and the Public
Printing: Pennsylvania, 1775-83, 45 Journalism Q. 445, 451
(1968).
At least one of the state legislatures shared Congress' view
that the freedom of the press protected anonymous writing. Also in
1779, the upper house of the New Jersey State Legislature attempted
to punish the author of a satirical attack on the Governor and the
College of New Jersey (now Princeton) who had signed his work
"Cincinnatus." R. Hixson, Isaac Collins: A Quaker Printer in 18th
Century America 95 (1968). Attempting to enforce the crime of
seditious libel, the State Legislative Council ordered Isaac
Collins-the printer and editor of the newspaper in which the
article had appeared-to reveal the author's identity. Refusing,
Collins declared: "'Were I to comply ... I conceive I should betray
the trust reposed in me, and be far from acting as a faithful
guardian of the Liberty of the Press.'"
Id., at 96.
Apparently, the State Assembly agreed that anonymity was protected
by the freedom of the press, as it voted to support the editor and
publisher by frustrating the council's orders.
Id., at
95.
By 1784, the same Governor of New Jersey, William Livingston,
was at work writing anonymous articles that defended the right to
publish anonymously as part of the freedom of the press. Under the
pseudonym "Scipio,"
363
Livingston wrote several articles attacking the legislature's
failure to lower taxes, and he accused a state officer of stealing
or losing state funds during the British invasion of New Jersey.
Id., at 107-109; Scipio, Letter to the Printer, Feb. 24,
1784, The New-Jersey Gazette. Responding to the allegations, the
officer called upon Scipio "to avow your publication, give up your
real name." S. Tucker, To Scipio, Mar. 2, 1784, The New-Jersey
Gazette. Livingston replied with a four-part series defending "the
Liberty of the Press." Although Livingston at first defended
anonymity because it encouraged authors to discuss politics without
fear of reprisal, he ultimately invoked the liberty of the press as
the guardian for anonymous political writing. "I hope [Tucker] is
not seriously bent upon a total subversion of our political
system," Scipio wrote. "And pray may not a man, in a free country,
convey thro' the press his sentiments on pub lick grievances ...
without being obliged to send a certified copy of the
baptismal
register to prove his name." Scipio, On the Liberty of the
Press IV, Apr. 26, 1784, The New-Jersey Gazette.
To be sure, there was some controversy among newspaper editors
over publishing anonymous articles and pamphlets. But this
controversy was resolved in a manner that indicates that the
freedom of the press protected an author's anonymity. The tempest
began when a Federalist, writing anonymously himself, expressed
fear that "emissaries" of "foreign enemies" would attempt to
scuttle the Constitution by "fill[ing] the press with objections"
against the proposal. Boston Independent Chronicle, Oct. 4, 1787,
in 13 Documentary History of the Ratification of the Constitution
315 (J. Kaminski & G. Saladino eds. 1981) (hereinafter
Documentary History). He called upon printers to refrain from
publishing when the author "chooses to remain concealed."
Ibid. Benjamin Russell, the editor of the prominent
Federalist newspaper the Massachusetts Centinel, immediately
adopted a policy of refusing to publish Anti-Federalist pieces
unless the
364
author provided his identity to be "handed to the pub lick, if
required." Massachusetts Centinel, Oct. 10, 1787,
id., at
312, 315-316. A few days later, the Massachusetts Gazette announced
that it would emulate the example set by the Massachusetts
Centinel. Massachusetts Gazette, Oct. 16,
1787, id., at 317.
In the same issue, the Gazette carried an article claiming that
requiring an anonymous writer to leave his name with the printer,
so that anyone who wished to know his identity could be informed,
"appears perfectly reasonable, and is perfectly consistent with the
liberty of the press." A Citizen, Massachusetts Gazette, Oct. 16,
1787,
id., at 316. Federalists expressed similar thoughts in
Philadelphia. See A Philadelphia Mechanic, Philadelphia Independent
Gazetteer, Oct. 29, 1787,
id., at 318-319; Galba,
Philadelphia Independent Gazetteer, Oct. 31, 1787,
id., at
319. The Jewel, Philadelphia Independent Gazetteer, Nov. 2, 1787,
id., at 320.
Ordinarily, the fact that some founding-era editors as a matter
of policy decided not to publish anonymous articles would seem to
shed little light upon what the Framers thought the
government could do. The widespread criticism raised by the
Anti-Federalists, however, who were the driving force behind the
demand for a Bill of Rights, indicates that they believed the
freedom of the press to include the right to author anonymous
political articles and pamphlets.1 That most other Americans shared
this understanding is reflected in the Federalists' hasty retreat
before the withering criticism of their assault on the liberty of
the press.
Opposition to Russell's declaration centered in Philadelphia.
Three Philadelphia papers published the "Citizen" piece that had
run in the Massachusetts Gazette.
Id., at
IThe Anti-Federalists recognized little difficulty in what today
would be a state-action problem, because they considered Federalist
conduct in supporting the Constitution as a preview of the tyranny
to come under the new Federal Government.
365
318-320.2 In response, one of the leading Anti-Federalist
writers, the "Federal Farmer," attacked Russell's policy:
"What can be the views of those gentlemen in Boston, who
countenanced the Printers in shutting up the press against a fair
and free investigation of this important system in the usual way?"
Letters From the Federal Farmer No.5, Oct. 13, 1787, in 2 The
Complete Anti-Federalist 254 (H. Storing ed. 1981). Another
Anti-Federalist, "Philadelphiensis," also launched a substantial
attack on Russell and his defenders for undermining the freedom of
the press. "In this desperate situation of affairs ... the friends
of this despotic scheme of government, were driven to the last and
only alternative from which there was any probability of success;
namely, the abolition of
the freedom of the Press."
Philadelphiensis, Essay I, Independent Gazetteer, Nov. 7, 1787, 3
id., at 102. In Philadelphiensis' eyes, Federalist attempts
to suppress the Anti-Federalist press by requiring the disclosure
of authors' identities only foreshadowed the oppression permitted
by the new Constitution. "Here we see pretty plainly through [the
Federalists'] excellent regulation of the press, how things are to
be carried on after the adoption of the new constitution."
Id., at 103. According to Philadelphiensis, Federalist
policies had already ruined freedom in Massachusetts: "In Boston
the liberty of the press is now completely abolished; and hence all
other privileges and rights of the people will in a short time be
destroyed."
Id., at 104.
Not limited to Philadelphia, the Anti-Federalist attack was
repeated widely throughout the States. In New York, one writer
exclaimed that the Federalist effort to suppress ano-
2 As noted earlier, several pieces in support appeared in the
Federalist newspaper, the Philadelphia Independent Gazetteer. They
were immediately answered by two Anti-Federalists in the
Philadelphia Freeman's Journal. These Anti-Federalists accused the
Federalists of "preventing that freedom of enquiry which truth and
honour never dreads, but which tyrants and tyranny could never
endure." 13 Documentary History 317-318.
366
nymity would "REVERSE the important doctrine
of the freedom
of the press," whose "truth" was "universally acknowledged."
Detector, New York Journal, Oct. 25, 1787, in 13 Documentary
History 318. "Detector" proceeded to proclaim that Russell's policy
was "the introduction of this first trait of slavery into your
country!"
Ibid. Responding to the Federalist editorial
policy, a Rhode Island AntiFederalist wrote: "The Liberty of the
Press, or the Liberty which
every Person in the United
States
at present enjoys ... is a Privilege of infinite
Importance ... for which ... we have fought and bled," and that the
attempt by "our aristocratical Gentry, to have every Person's Name
published who should write against the proposed Federal
Constitution, has given many of us a just Alarm." Argus, Providence
United States Chronicle, Nov. 8, 1787,
id., at 320-321.
Edward Powars, editor of the Anti-Federalist Boston American
Herald, proclaimed that
his pages would remain "FREE and
OPEN to all parties." Boston American Herald, Oct. 15, 1787,
id., at 316. In the Boston Independent Chronicle of Oct. 18,
1787, "Solon" accused Russell of attempting to undermine a
"freedom and
independence of
sentiments" which
"should never be
checked in a
free country" and was
"so
essential to the
existance of free Governments."
Id., at 313.
The controversy over Federalist attempts to prohibit anonymous
political speech is significant for several reasons. First, the
Anti-Federalists clearly believed the right to author and publish
anonymous political articles and pamphlets was protected by the
liberty of the press. Second, although printers' editorial policies
did not constitute state action, the Anti-Federalists believed that
the Federalists were merely flexing the governmental powers they
would fully exercise upon the Constitution's ratification. Third,
and perhaps most significantly, it appears that the Federalists
agreed with the Anti-Federalist critique. In Philadelphia, where
opposition to the ban was strongest, there is no record that any
newspaper adopted the nonanonymity policy, nor that of
367
any city or State aside from Russell's Massachusetts Centinel
and the Federalist Massachusetts Gazette. Moreover, these two
papers' bark was worse than their bite. In the face of widespread
criticism, it appears that Russell retreated from his policy and,
as he put it, "'readily'" reprinted several anonymous Federalist
and Anti-Federalist essays to show that claims that he had
suppressed freedom of the press "'had not any foundation in
truth.'" 13 Documentary History 313-314. Likewise, the
Massachusetts Gazette refused to release the names of
Anti-Federalist writers when requested.
Ibid. When
Federalist attempts to ban anonymity are followed by a sharp,
widespread Anti-Federalist defense in the name of the freedom of
the press, and then by an open Federalist retreat on the issue, I
must conclude that both Anti-Federalists and Federalists believed
that the freedom of the press included the right to publish without
revealing the author's name.
III
The historical record is not as complete or as full as I would
desire. For example, there is no evidence that, after the adoption
of the First Amendment, the Federal Government attempted to require
writers to attach their names to political documents. Nor do we
have any indication that the federal courts of the early Republic
would have squashed such an effort as a violation of the First
Amendment. The understanding described above, however, when viewed
in light of the Framers' universal practice of publishing anonymous
articles and pamphlets, indicates that the Framers shared the
belief that such activity was firmly part of the freedom of the
press. It is only an innovation of modern times that has permitted
the regulation of anonymous speech.
The large quantity of newspapers and pamphlets the Framers
produced during the various crises of their generation show the
remarkable extent to which the Framers relied upon anonymity.
During the break with Great Britain, the
368
revolutionaries employed pseudonyms both to conceal their
identity from Crown authorities and to impart a message. Often,
writers would choose names to signal their point of view or to
invoke specific classical and modern "crusaders in an agelong
struggle against tyranny." A. Schlesinger, Prelude to Independence
35 (1958). Thus, leaders of the struggle for independence would
adopt descriptive names such as "Common Sense," a "Farmer," or "A
True Patriot," or historical ones such as "Cato" (a name used by
many to refer to the Roman Cato and to Cato's letters), or "Mucius
Scaevola."
Id., at xii-xiii. The practice was even more
prevalent during the great outpouring of political argument and
commentary that accompanied the ratification of the Constitution.
Besides "Publius," prominent Federalists signed their articles and
pamphlets with names such as "An American Citizen," "Marcus," "A
Landholder," "Americanus"; AntiFederalists replied with the
pseudonyms "Cato," "Centinel," "Brutus," the "Federal Farmer," and
"The Impartial Examiner." See generally 1-2 Debate on the
Constitution (B. Bailyn ed. 1993). The practice of publishing one's
thoughts anonymously or under pseudonym was so widespread that only
two major Federalist or Anti-Federalist pieces appear to have been
signed by their true authors, and they may have had special reasons
to do SO.3
If the practice of publishing anonymous articles and pamphlets
fell into disuse after the Ratification, one might infer that the
custom of anonymous political speech arose only in response to the
unusual conditions of the 1776-1787 period.
3 See Mason, Objections to the Constitution, Virginia Journal,
Nov. 22, 1787, 1 Debate on the Constitution 345 (B. Bailyn ed.
1993); Martin, The Genuine Information, Maryland Gazette, Dec. 28,
1787-Feb. 8, 1788,
id., at 631. Both men may have made an
exception to the general practice because they both had attended
the Philadelphia Convention, but had refused to sign the
Constitution. As leaders of the fight against ratification, both
men may have believed that they owed a personal explanation to
their constituents of their decision not to sign.
369
After all, the Revolution and the Ratification were not
"elections,"
per se, either for candidates or for discrete
issues. Records from the first federal elections indicate, however,
that anonymous political pamphlets and newspaper articles remained
the favorite media for expressing views on candidates. In
Pennsylvania, for example, writers for or against the Federalist
and Anti-Federalist candidates wrote under the names "Numa,"
"Pompilius," "A Friend to Agriculture, Trade, and Good Laws," "A
Federal Centinel," a "Freeman," "Centinel," "A Real Patriot to All
True Federalists," "A Mechanic," "Justice," "A German Federalist,"
and so on. See generally 1 Documentary History of the First Federal
Elections 1788-1790, pp. 246-362 (M. Jensen & R. Becker eds.
1976). This appears to have been the practice in all of the major
States of which we have substantial records today. See 1
id., at 446-464 (Massachusetts); 2
id., at
108-122,175229 (Maryland); 2
id., at 387-397 (Virginia); 3
id., at 204-216, 436-493 (New York). It seems that actual
names were used rarely, and usually only by candidates who wanted
to explain their positions to the electorate.
The use of anonymous writing extended to issues as well as
candidates. The ratification of the Constitution was not the only
issue discussed via anonymous writings in the press. James Madison
and Alexander Hamilton, for example, resorted to pseudonyms in the
famous "Helvidius" and "Pacificus" debates over President
Washington's declaration of neutrality in the war between the
British and French. See Hamilton, Pacificus No.1, June 29, 1793, in
15 Papers of Alexander Hamilton 33-43 (H. Syrett ed. 1969);
Madison, Helvidius No.1, Aug. 24, 1793, in 15 Papers of James
Madison 66-73 (T. Mason, R. Rutland, J. Sisson eds. 1985).
Anonymous writings continued in such Republican papers as the
Aurora and Federalists organs such as the Gazette of the United
States at least until the election of Thomas Jefferson. See
generally J. Smith, Freedom's Fetters (1956).
370
IV
This evidence leads me to agree with the majority's result, but
not its reasoning. The majority fails to seek the original
understanding of the First Amendment, and instead attempts to
answer the question in this case by resorting to three approaches.
First, the majority recalls the historical practice of anonymous
writing from Shakespeare's works to the Federalist Papers to Mark
Twain.
Ante, at 341, and n. 4, 342-343, and n. 6, 357.
Second, it finds that anonymous speech has an expressive value both
to the speaker and to society that outweighs public interest in
disclosure. Third, it finds that § 3599.09(A) cannot survive strict
scrutiny because it is a "content-based" restriction on speech.
I cannot join the majority's analysis because it deviates from
our settled approach to interpreting the Constitution and because
it superimposes its modern theories concerning expression upon the
constitutional text. Whether "great works of literature"-by
Voltaire or George Eliot have been published anonymously should be
irrelevant to our analysis, because it sheds no light on what the
phrases "free speech" or "free press" meant to the people who
drafted and ratified the First Amendment. Similarly, whether
certain types of expression have "value" today has little
significance; what
is important is whether the Framers in
1791 believed anonymous speech sufficiently valuable to deserve the
protection of the Bill of Rights. And although the majority
faithfully follows our approach to "content-based" speech
regulations, we need not undertake this analysis when the original
understanding provides the answer.
While, like JUSTICE SCALIA, I am loath to overturn a century of
practice shared by almost all of the States, I believe the
historical evidence from the framing outweighs recent tradition.
When interpreting other provisions of the Constitution, this Court
has believed itself bound by the text of the Constitution and by
the intent of those who drafted and ratified it. It should hold
itself to no less a standard when
371
interpreting the Speech and Press Clauses. After reviewing the
weight of the historical evidence, it seems that the Framers
understood the First Amendment to protect an author's right to
express his thoughts on political candidates or issues in an
anonymous fashion. Because the majority has adopted an analysis
that is largely unconnected to the Constitution's text and history,
I concur only in the judgment.
JUSTICE SCALIA, with whom THE CHIEF JUSTICE joins,
dissenting.
At a time when both political branches of Government and both
political parties reflect a popular desire to leave more
decisionmaking authority to the States, today's decision moves in
the opposite direction, adding to the legacy of inflexible central
mandates (irrevocable even by Congress) imposed by this Court's
constitutional jurisprudence. In an opinion which reads as though
it is addressing some peculiar law like the Los Angeles municipal
ordinance at issue in
Talley v.
California,
362 U. S. 60
(1960), the Court invalidates a species of protection for the
election process that exists, in a variety of forms, in every State
except California, and that has a pedigree dating back to the end
of the 19th century. Preferring the views of the English
utilitarian philosopher John Stuart Mill,
ante, at 357, to
the considered judgment of the American people's elected
representatives from coast to coast, the Court discovers a hitherto
unknown right-to-beunknown while engaging in electoral politics. I
dissent from this imposition of free-speech imperatives that are
demonstrably not those of the American people today, and that there
is inadequate reason to believe were those of the society that
begat the First Amendment or the Fourteenth.
I
The question posed by the present case is not the easiest sort
to answer for those who adhere to the Court's (and the
372
society's) traditional view that the Constitution bears its
original meaning and is unchanging. Under that view, "[o]n every
question of construction, [we should] carry ourselves back to the
time when the Constitution was adopted; recollect the spirit
manifested in the debates; and instead of trying [to find] what
meaning may be squeezed out of the text, or invented against it,
conform to the probable one in which it was passed." T. Jefferson,
Letter to William Johnson (June 12, 1823), in 15 Writings of Thomas
Jefferson 439, 449 (A. Lipscomb ed. 1904). That technique is simple
of application when government conduct that is claimed to violate
the Bill of Rights or the Fourteenth Amendment is shown, upon
investigation, to have been engaged in without objection at the
very time the Bill of Rights or the Fourteenth Amendment was
adopted. There is no doubt, for example, that laws against libel
and obscenity do not violate "the freedom of speech" to which the
First Amendment refers; they existed and were universally approved
in 1791. Application of the principle of an unchanging Constitution
is also simple enough at the other extreme, where the government
conduct at issue was
not engaged in at the time of adoption,
and there is ample evidence that the
reason it was not
engaged in is that it was thought to violate the right embodied in
the constitutional guarantee. Racks and thumbscrews, well-known
instruments for inflicting pain, were not in use because they were
regarded as cruel punishments.
The present case lies between those two extremes.
Anonymous electioneering was not prohibited by law in 1791 or in
1868. In fact, it was widely practiced at the earlier date, an
understandable legacy of the revolutionary era in which political
dissent could produce governmental reprisal. I need not dwell upon
the evidence of that, since it is described at length in today's
concurrence. See
ante, at 360369 (THOMAS, J., concurring in
judgment). The practice of anonymous electioneering may have been
less general in 1868,
373
when the Fourteenth Amendment was adopted, but at least as late
as 1837 it was respectable enough to be engaged in by Abraham
Lincoln. See 1 A. Beveridge, Abraham Lincoln 1809-1858, pp. 215-216
(1928); 1 Uncollected Works of Abraham Lincoln 155-161 (R. Wilson
ed. 1947).
But to prove that anonymous electioneering was used frequently
is not to establish that it is a constitutional right. Quite
obviously, not every restriction upon expression that did not exist
in 1791 or in 1868 is
ipso facto unconstitutional, or else
modern election laws such as those involved in
Burson v.
Freeman, 504
U. S. 191 (1992), and
Buckley v.
Valeo, 424 U. S. 1 (1976), would
be prohibited, as would (to mention only a few other categories)
modern antinoise regulation of the sort involved in
Kovacs
v.
Cooper, 336
U. S. 77 (1949), and
Ward v.
Rock Against Racism,
491 U. S. 781
(1989), and modern parade-permitting regulation of the sort
involved in
Cox v.
New Hampshire, 312 U. S. 569 (1941).
Evidence that anonymous electioneering was regarded as a
constitutional right is sparse, and as far as I am aware evidence
that it was
generally regarded as such is nonexistent. The
concurrence points to "freedom of the press" objections that were
made against the refusal of some Federalist newspapers to publish
unsigned essays opposing the proposed Constitution (on the ground
that they might be the work of foreign agents). See
ante, at
364-366 (THOMAS, J., concurring in judgment). But, of course, if
every partisan cry of "freedom of the press" were accepted as
valid, our Constitution would be unrecognizable; and if one were to
generalize from these particular cries, the First Amendment would
be not only a protection
for newspapers, but a restriction
upon them. Leaving aside, however, the fact that no
governmental action was involved, the Anti-Federalists had a point,
inasmuch as the editorial proscription of anonymity applied only to
them, and thus had the vice of viewpoint discrimination.
(Hence the comment by Philadelphiensis,
374
quoted in the concurrence: "'Here we see pretty plainly through
[the Federalists'] excellent regulation of the press, how things
are to be carried on after the adoption of the new constitution.'"
Ante, at 365 (quoting Philadelphiensis, Essay I, Independent
Gazetteer, Nov. 7, 1787, in 3 Complete Anti-Federalist 103 (H.
Storing ed. 1981)).)
The concurrence recounts other pre- and post-Revolution examples
of defense of anonymity in the name of "freedom of the press," but
not a single one involves the context of restrictions imposed in
connection with a free, democratic election, which is all that is
at issue here. For many of them, moreover, such as the 1735 Zenger
trial,
ante, at 361, the 1779 "Leonidas" controversy in the
Continental Congress,
ibid., and the 1779 action by the New
Jersey Legislative Council against Isaac Collins,
ante, at
362, the issue of anonymity was incidental to the (unquestionably
free-speech) issue of whether criticism of the government could be
punished by the state.
Thus, the sum total of the historical evidence marshaled by the
concurrence for the principle of
constitutional entitlement
to anonymous electioneering is partisan claims in the debate on
ratification (which was
almost like an election) that a
viewpoint-based restriction on anonymity by newspaper editors
violates freedom of speech. This absence of historical testimony
concerning the point before us is hardly remarkable. The issue of a
governmental prohibition upon anonymous electioneering in
particular (as opposed to a government prohibition upon anonymous
publication in general) simply never arose. Indeed, there probably
never arose even the abstract question whether electoral openness
and regularity was worth such a governmental restriction upon the
normal right to anonymous speech. The idea of close government
regulation of the electoral process is a more modern phenomenon,
arriving in this country in the late 1800's. See
Burson v.
Freeman, supra, at 203-205.
375
What we have, then, is the most difficult case for determining
the meaning of the Constitution. No accepted existence of
governmental restrictions of the sort at issue here demonstrates
their constitutionality, but neither can their nonexistence clearly
be attributed to constitutional objections. In such a case,
constitutional adjudication necessarily involves not just history
but judgment: judgment as to whether the government action under
challenge is consonant with the concept of the protected freedom
(in this case, the freedom of speech and of the press) that existed
when the constitutional protection was accorded. In the present
case,
absent other indication, I would be inclined to agree
with the concurrence that a society which used anonymous political
debate so regularly would not regard as constitutional even
moderate restrictions made to improve the election process. (I
would, however, want further evidence of common practice in 1868,
since I doubt that the Fourteenth Amendment time-warped the
post-Civil War States back to the Revolution.)
But there
is other indication, of the most weighty sort:
the widespread and longstanding traditions of our people.
Principles of liberty fundamental enough to have been embodied
within constitutional guarantees are not readily erased from the
Nation's consciousness. A governmental practice that has become
general throughout the United States, and particularly one that has
the validation of long, accepted usage, bears a strong presumption
of constitutionality. And that is what we have before us here. Ohio
Rev. Code Ann. § 3599.09(A) (1988) was enacted by the General
Assembly of the State of Ohio almost 80 years ago. See Act of May
27, 1915, 1915 Ohio Leg. Acts 350. Even at the time of its
adoption, there was nothing unique or extraordinary about it. The
earliest statute of this sort was adopted by Massachusetts in 1890,
little more than 20 years after the Fourteenth Amendment was
ratified. No
376
less than 24 States had similar laws by the end of World War 1,1
and today every State of the Union except California has one,2 as
does the District of Columbia, see D. C. Code
1 See Act of June 19, 1915, No. 171, § 9, 1915 Ala. Acts 250,
254-255; Act of Mar. 12, 1917, ch. 47, § 1, 1917 Ariz. Sess. Laws
62, 62-63; Act of Apr. 2, 1913, No. 308, § 6, 1913 Ark. Gen. Acts
1252, 1255; Act of Mar. 15, 1901, ch. 138, § 1, 1901 Cal. Stats.
297; Act of June 6, 1913, ch. 6470, § 9, 1913 Fla. Laws 268,
272-273; Act of June 26,1917, § 1, 1917 Ill. Laws 456, 456-457; Act
of Mar. 14, 1911, ch. 137, § 1, 1911 Kan. Sess. Laws 221; Act of
July 11, 1912, No. 213, § 14, 1912 La. Acts 447, 454; Act of June
3, 1890, ch. 381, 1890 Mass. Acts 342; Act of June 20, 1912, Ex.
Sess. ch. 3, § 7, 1912 Minn. Laws 23, 26; Act of Apr. 21, 1906, S.
B. No. 191, 1906 Miss. Gen. Laws 295 (enacting Miss. Code Ann. §
3728 (1906)); Act of Apr. 9, 1917, § 1, 1917 Mo. Laws 272, 273; Act
of Nov. 1912, §35, 1912 Mont. Laws 593, 608; Act of Mar. 31, 1913,
ch. 282, §34, 1913 Nev. Stats. 476,486-487; Act of Apr. 21, 1915,
ch. 169, § 7, 1915 N. H. Laws 234, 236; Act of Apr. 20, 1911, ch.
188, § 9, 1911 N. J. Laws 329, 334; Act of Mar. 12, 1913, ch. 164,
§ l(k), 1913 N. C. Sess. Laws 259, 261; Act of May 27, 1915, 1915
Ohio Leg. Acts 350; Act of June 23, 1908, ch. 3, §35, 1909 Ore.
Laws 15,30; Act of June 26,1895, No. 275, 1895 Pa. Laws 389; Act of
Mar. 13, 1917, ch. 92, § 23, 1917 Utah Laws 258,267; Act of Mar.
12, 1909, ch. 82, §8, 1909 Wash. Laws 169, 177-178; Act of Feb. 20,
1915, ch. 27, § 13, 1915 W. Va. Acts 246, 255; Act of July 11,
1911, ch. 650, §§94-14 to 94-16,1911 Wis. Laws 883, 890.
2 See Ala. Code § 17-22A-13 (Supp. 1994); Alaska Stat. Ann. §
15.56.010 (1988); Ariz. Rev. Stat. Ann. § 16-912 (Supp. 1994); Ark.
Code Ann. § 7-1103 (1993); Colo. Rev. Stat. § 1-13-108 (Supp.
1994); Conn. Gen. Stat. § 9333w (Supp. 1994); Del. Code Ann., Tit.
15, §§ 8021, 8023 (1993); Fla. Stat. §§ 106.143 and 106.1437
(1992); Ga. Code Ann. §21-2-415 (1993); Haw. Rev. Stat. § 11-215
(1988); Idaho Code § 67-6614A (Supp. 1994); Ill. Compo Stat.
§5/29-14 (1993); Ind. Code §3-14-1-4 (Supp. 1994); Iowa Code §56.14
(1991); Kan. Stat. Ann. §§ 25-2407 and 25-4156 (Supp. 1991); Ky.
Rev. Stat. Ann. § 121.190 (Baldwin Supp. 1994); La. Rev. Stat. Ann.
§ 18:1463 (West Supp. 1994); Me. Rev. Stat. Ann., Tit. 21-A, § 1014
(1993); Md. Ann. Code, Art. 33, §26-17 (1993); Mass. Gen. Laws §41
(1990); Mich. Compo Laws Ann. § 169.247 (West 1989); Minn. Stat. §
211B.04 (1994); Miss. Code Ann. §23-15-899 (1990); Mo. Rev. Stat. §
130.031 (Supp. 1994); Mont. Code Ann. § 13-35-225 (1993); Neb. Rev.
Stat. §49-1474.01 (1993); Nev. Rev. Stat. §294A.320 (Supp. 1993);
N. H. Rev. Stat. Ann. §664:14 (Supp. 1992); N. J. Stat. Ann. §
19:34-38.1 (West 1989); N. M. Stat. Ann. §§ 1-19-16 and 119-17
(1991); N. Y. Elec. Law § 14-106 (McKinney 1978); N. C. Gen. Stat.
§ 163-274 (Supp. 1994); N. D. Cent. Code § 16.1-10-04.1 (1981);
Ohio Rev.
377
Ann. § 1-1420 (1992), and as does the Federal Government where
advertising relating to candidates for federal office is concerned,
see 2 U. S. C. § 441d(a). Such a universal3 and long-established
American legislative practice must be given precedence, I think,
over historical and academic speculation regarding a restriction
that assuredly does not go to the heart of free speech.
It can be said that we ignored a tradition as old, and almost as
widespread, in
Texas v.
Johnson, 491 U. S. 397 (1989),
where we held unconstitutional a state law prohibiting desecration
of the United States flag. See also
United States v.
Eichman, 496
U. S. 310 (1990). But those cases merely
Code Ann. § 3599.09(A) (1988); Okla. Stat., Tit. 21, § 1840
(Supp. 1995); Ore. Rev. Stat. § 260.522 (1991); 25 Pa. Cons. Stat.
§ 3258 (1994); R. I. Gen. Laws § 17-23-2 (1988); S. C. Code Ann.
§8-13-1354 (Supp. 1993); S. D. Compo Laws Ann. § 12-25-4.1 (Supp.
1994); Tenn. Code Ann. §2-19-120 (Supp. 1994); Tex. Elec. Code Ann.
§ 255.001 (Supp. 1995); Utah Code Ann. § 2014-24 (Supp. 1994); Vt.
Stat. Ann., Tit. 17, § 2022 (1982); Va. Code Ann. §24.2-1014
(1993); Wash. Rev. Code §42.17.51O (Supp. 1994); W. Va. Code
§3-8-12 (1994); Wis. Stat. § 11.30 (Supp. 1994); Wyo. Stat.
§22-25-110 (1992).
Courts have declared some of these laws unconstitutional in
recent years, relying upon our decision in
Talley V.
California, 362
U. S. 60 (1960). See,
e. g., State V.
Burgess,
543 So. 2d 1332 (La. 1989);
State V.
North Dakota Ed.
Assn., 262 N. W. 2d 731 (N. D. 1978);
People V.
Duryea, 76 Misc. 2d 948, 351 N. Y. S. 2d 978 (Sup.), aff'd,
44 App. Div. 2d 663, 354 N. Y. S. 2d 129 (1974). Other decisions,
including all
pre-Talley decisions I am aware of, have
upheld the laws. See,
e. g., Commonwealth V.
Evans,
156 Pa. Super. 321, 40 A. 2d 137 (1944);
State V.
Freeman, 143 Kan. 315, 55 P. 2d 362 (1936);
State V.
Babst, 104 Ohio St. 167, 135 N. E. 525 (1922).
3 It might be accurate to say that, insofar as the judicially
unconstrained judgment of American legislatures is concerned,
approval of the law before us here is universal. California,
although it had enacted an election disclosure requirement as early
as 1901, see Act of Mar. 15, 1901, ch. 138, § 1, 1901 Cal. Stats.
297, abandoned its law (then similar to Ohio's) in 1983, see Act of
Sept. 11, 1983, ch. 668, 1983 Cal. Stats. 2621, after a California
Court of Appeal, relying primarily on our decision in
Talley, had declared the provision unconstitutional, see
Schuster V.
Imperial County Municipal Court, 109 Cal.
App. 3d 887, 167 Cal. Rptr. 447 (1980), cert. denied, 450 U. S.
1042 (1981).
378
stand for the proposition that postadoption tradition cannot
alter the core meaning of a constitutional guarantee. As we said in
Johnson, "[i]f there is a bedrock principle underlying the
First Amendment, it is that the government may not prohibit the
expression of an idea simply because society finds the idea itself
offensive or disagreeable." 491 U. S., at 414. Prohibition of
expression of contempt for the flag, whether by contemptuous words,
see
Street v.
New York, 394 U. S. 576 (1969), or by
burning the flag, came, we said, within that "bedrock principle."
The law at issue here, by contrast, forbids the expression of no
idea, but merely requires identification of the speaker when the
idea is uttered in the electoral context. It is at the periphery of
the First Amendment, like the law at issue in
Burson, where
we took guidance from tradition in upholding against constitutional
attack restrictions upon electioneering in the vicinity of polling
places, see 504 U. S., at 204-206 (plurality opinion);
id.,
at 214-216 (SCALIA, J., concurring in judgment).
II
The foregoing analysis suffices to decide this case for me.
Where the meaning of a constitutional text (such as "the freedom
of speech") is unclear, the widespread and longaccepted practices
of the American people are the best indication of what fundamental
beliefs it was intended to enshrine. Even if I were to close my
eyes to practice, however, and were to be guided exclusively by
deductive analysis from our case law, I would reach the same
result.
Three basic questions must be answered to decide this case. Two
of them are readily answered by our precedents; the third is
readily answered by common sense and by a decent regard for the
practical judgment of those more familiar with elections than we
are. The first question is whether protection of the election
process justifies limitations upon speech that cannot
constitutionally be imposed generally. (If not,
Talley v.
California, which invalidated a flat ban on
379
all anonymous leafletting, controls the decision here.)
Our cases plainly answer that question in the affirmative-indeed,
they suggest that no justification for regulation is more
compelling than protection of the electoral process. "Other rights,
even the most basic, are illusory if the right to vote is
undermined."
Wesberry v.
Sanders, 376 U. S. 1, 17 (1964). The
State has a "compelling interest in preserving the integrity of its
election process."
Eu v.
San Francisco County Democratic
Central Comm., 489 U. S. 214, 231
(1989). So significant have we found the interest in protecting the
electoral process to be that we have approved the prohibition of
political speech
entirely in areas that would impede that
process.
Burson, supra, at 204-206 (plurality opinion).
The second question relevant to our decision is whether a "right
to anonymity" is such a prominent value in our constitutional
system that even protection of the electoral process cannot be
purchased at its expense. The answer, again, is clear: no. Several
of our cases have held that
in peculiar circumstances the
compelled disclosure of a person's identity would
unconstitutionally deter the exercise of First Amendment
associational rights. See,
e. g., Brown v.
Socialist
Workers '74
Campaign Comm. (Ohio), 459 U. S. 87 (1982);
Bates v.
Little Rock, 361 U. S. 516 (1960);
NAACP v.
Alabama ex rel. Patterson, 357 U. S. 449 (1958). But
those cases did not acknowledge any general right to anonymity, or
even any right on the part of
all citizens to ignore the
particular laws under challenge. Rather, they recognized a right to
an
exemption from otherwise valid disclosure requirements on
the part of someone who could show a "reasonable probability" that
the compelled disclosure would result in "threats, harassment, or
reprisals from either Government officials or private parties."
This last quotation is from
Buckley v.
Valeo, 424 U.
S., at 74
(per curiam), which prescribed the safety valve of
a similar exemption in upholding the disclosure requirements of the
Federal Election Campaign Act. That is the answer our case law
pro-
380
vides to the Court's fear about the "tyranny of the majority,"
ante, at 357, and to its concern that "'[p]ersecuted groups
and sects from time to time throughout history have been able to
criticize oppressive practices and laws either anonymously or not
at all,'"
ante, at 342 (quoting
Talley, 362 U. S., at
64). Anonymity can still be enjoyed by those who require it,
without utterly destroying useful disclosure laws. The record in
this case contains not even a hint that Mrs. McIntyre feared
"threats, harassment, or reprisals"; indeed, she placed her name on
some of her fliers and meant to place it on all of them. See App.
12, 36-40.
The existence of a generalized right of anonymity in speech was
rejected by this Court in
Lewis Publishing Co. v.
Morgan, 229 U.
S. 288 (1913), which held that newspapers desiring the
privilege of second-class postage could be required to provide to
the Postmaster General, and to publish, a statement of the names
and addresses of their editors, publishers, business managers, and
owners. We rejected the argument that the First Amendment forbade
the requirement of such disclosure.
Id., at 299. The
provision that gave rise to that case still exists, see 39 U. S. C.
§ 3685, and is still enforced by the Postal Service. It is one of
several federal laws seemingly invalidated by today's opinion.
The Court's unprecedented protection for anonymous speech does
not even have the virtue of establishing a clear (albeit erroneous)
rule of law. For after having announced that this statute, because
it "burdens core political speech," requires "'exacting scrutiny'"
and must be "narrowly tailored to serve an overriding state
interest,"
ante, at 347 (ordinarily the kiss of death), the
opinion goes on to proclaim soothingly (and unhelpfully) that "a
State's enforcement interest might justify a more limited
identification requirement,"
ante, at 353. See also
ante, at 358 (GINSBURG, J., concurring) ("We do not ... hold
that the State may not in other, larger circumstances require the
speaker to disclose its interest by disclosing its identity").
Perhaps, then, not
381
all the state statutes I have alluded to are invalid, but
just
some of them; or indeed maybe
all of them remain
valid in "larger circumstances"! It may take decades to work out
the shape of this newly expanded right-to-speak-incognito, even in
the elections field. And in other areas, of course, a whole new
boutique of wonderful First Amendment litigation opens its doors.
Must a parade permit, for example, be issued to a group that
refuses to provide its identity, or that agrees to do so only under
assurance that the identity will not be made public? Must a
municipally owned theater that is leased for private productions
book anonymously sponsored presentations? Must a government
periodical that has a "letters to the editor" column disavow the
policy that most newspapers have against the publication of
anonymous letters? Must a public university that makes its
facilities available for a speech by Louis Farrakhan or David Duke
refuse to disclose the on-campus or off-campus group that has
sponsored or paid for the speech? Must a municipal "public-access"
cable channel permit anonymous (and masked) performers? The
silliness that follows upon a generalized right to anonymous speech
has no end.
The third and last question relevant to our decision is whether
the prohibition of anonymous campaigning is effective in protecting
and enhancing democratic elections. In answering this question no,
the Justices of the majority set their own views-on a practical
matter that bears closely upon the real-life experience of elected
politicians and
not upon that of unelected judges-up against
the views of 49 (and perhaps all 50, see n. 4,
supra) state
legislatures and the Federal Congress. We might also add to the
list on the other side the legislatures of foreign democracies:
Australia, Canada, and England, for example, all have prohibitions
upon anonymous campaigning. See,
e. g., Commonwealth
Electoral Act 1918, § 328 (Australia); Canada Elections Act, R. S.
C., ch. E-2, § 261 (1985); Representation of the People Act, 1983,
§ 110 (England). How is it, one must wonder, that
382
all of these elected legislators, from around the country and
around the world, could not see what six Justices of this Court see
so clearly that they are willing to require the entire Nation to
act upon it: that requiring identification of the source of
campaign literature does not improve the quality of the
campaign?
The Court says that the State has not explained "why it can more
easily enforce the direct bans on disseminating false documents
against anonymous authors and distributors than against wrongdoers
who might use false names and addresses in an attempt to avoid
detection."
Ante, at 352-353. I am not sure what this
complicated comparison means. I am sure, however, that (1) a person
who is required to put his name to a document is much less likely
to lie than one who can lie anonymously, and (2) the distributor of
a leaflet which is unlawful because it is anonymous runs much more
risk of immediate detection and punishment than the distributor of
a leaflet which is unlawful because it is false. Thus, people will
be more likely to observe a signing requirement than a naked "no
falsity" requirement; and, having observed that requirement, will
then be significantly less likely to lie in what they have
signed.
But the usefulness of a signing requirement lies not only in
promoting observance of the law against campaign falsehoods (though
that alone is enough to sustain it). It lies also in promoting a
civil and dignified level of campaign debatewhich the State has no
power to command, but ample power to encourage by such undemanding
measures as a signature requirement. Observers of the past few
national elections have expressed concern about the increase of
character assassination-"mudslinging" is the colloquial
term-engaged in by political candidates and their supporters to the
detriment of the democratic process. Not all of this, in fact not
much of it, consists of actionable untruth; most is innuendo, or
demeaning characterization, or mere disclosure of items of personal
life that have no bearing upon suitability for office.
383
Imagine how much all of this would increase if it could be done
anonymously. The principal impediment against it is the reluctance
of most individuals and organizations to be publicly associated
with uncharitable and uncivil expression. Consider, moreover, the
increased potential for "dirty tricks." It is not unheard-of for
campaign operatives to circulate material over the name of their
opponents or their opponents' supporters (a violation of election
laws) in order to attract or alienate certain interest groups. See,
e. g., B. Felknor, Political Mischief: Smear,
Sabotage, and Reform in U. S. Elections 111-112 (1992) (fake United
Mine Workers' newspaper assembled by the National Republican
Congressional Committee);
New York v.
Duryea, 76
Misc. 2d 948, 351 N. Y. S. 2d 978 (Sup. 1974) (letters purporting
to be from the "Action Committee for the Liberal Party" sent by
Republicans). How much easier-and sanction freel-it would be to
circulate anonymous material (for example, a
really
tasteless, though not actionably false, attack upon one's own
candidate) with the hope and expectation that it will be attributed
to, and held against, the other side.
The Court contends that demanding the disclosure of the
pamphleteer's identity is no different from requiring the
disclosure of any other information that may reduce the
persuasiveness of the pamphlet's message. See
ante, at
348-349. It cites
Miami Herald Publishing Co. v.
Tornillo, 418
U. S. 241 (1974), which held it unconstitutional to require a
newspaper that had published an editorial critical of a particular
candidate to furnish space for that candidate to reply. But it is
not
usual for a speaker to put forward the best arguments
against himself, and it is a great imposition upon free speech to
make him do so. Whereas it is quite usual-it is expected-for a
speaker to
identify himself, and requiring that is (at least
when there are no special circumstances present) virtually no
imposition at all.
We have approved much more onerous disclosure requirements in
the name of fair elections. In
Buckley v.
Valeo,
424
384
u. S. 1 (1976), we upheld provisions of the Federal Election
Campaign Act that required private individuals to report to the
Federal Election Commission independent expenditures made for
communications advocating the election or defeat of a candidate for
federal office.
Id., at 80. Our primary rationale for
upholding this provision was that it served an "informational
interest" by "increas[ing] the fund of information concerning those
who support the candidates."
Id., at 81. The provision
before us here serves the same informational interest, as well as
more important interests, which I have discussed above. The Court's
attempt to distinguish
Buckley, see
ante, at 356,
would be unconvincing, even if it were accurate in its statement
that the disclosure requirement there at issue "reveals far less
information" than requiring disclosure of the identity of the
author of a specific campaign statement. That happens not to be
accurate, since the provision there at issue required not merely
"[d]isclosure of an expenditure and its use, without more."
Ante, at 355. It required, among other things:
"the identification of each person to whom expenditures have
been made ... within the calendar year in an aggregate amount
or value in excess of $100, the amount, date, and purpose of
each such expenditure and the name and address of, and office
sought by, each candidate on whose behalf such expenditure
was made." 2 U. S. C. § 434(b)(9) (1970 ed., Supp. IV) (emphasis
added).
See also 2 U. S. C. §434(e) (1970 ed., Supp. IV). (Both
reproduced in Appendix to
Buckley, supra, at 158, 160.)
Surely in many if not most cases, this information will readily
permit identification of the particular message that the
would-be-anonymous campaigner sponsored. Besides which the burden
of complying with this provision, which includes the filing of
quarterly reports, is infinitely more onerous than Ohio's simple
requirement for signature of
385
campaign literature. If
Buckley remains the law, this is
an easy case.
***
I do not know where the Court derives its perception that
"anonymous pamphleteering is not a pernicious, fraudulent practice,
but an honorable tradition of advocacy and of dissent."
Ante, at 357. I can imagine no reason why an anonymous
leaflet is any more honorable, as a general matter, than an
anonymous phone call or an anonymous letter. It facilitates wrong
by eliminating accountability, which is ordinarily the very purpose
of the anonymity. There are of course exceptions, and where
anonymity is needed to avoid "threats, harassment, or reprisals"
the First Amendment will require an exemption from the Ohio law.
Cf.
NAACP v.
Alabama ex rel. Patterson, 357 U. S. 449 (1958). But
to strike down the Ohio law in its general application-and similar
laws of 49 other States and the Federal Governmenton the ground
that all anonymous communication is in our society traditionally
sacrosanct, seems to me a distortion of the past that will lead to
a coarsening of the future.
I respectfully dissent.
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