McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995)

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), is inconsistent with the First Amendment. I would 
apply, however, a different 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 [514 U.S. 334, 
335]  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." 
Abington School Dist. v. Schempp, 374 U.S. 203, 294 (1963) (BRENNAN, J., 
concurring); see also Lee v. Weisman, 505 U.S. 577 (1992) (slip op., at 2-3) 
(SCALIA, J., dissenting).

                            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 a writer's pamphlets for a fee. See 
generally B. Bailyn & J. Hench, The Press & the American Revolution (1980); 
L. Levy, Emergence of a Free Press (1985); [514 U.S. 334, 336]  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 4 (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 [514 U.S. 334, 337]  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 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). [514 U.S. 334, 338] 

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," 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 [514 U.S. 334, 339]  [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 publick 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, 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 author 
provided his identity to be "handed to the publick, 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 [514 U.S. 334, 340]  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 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 [514 U.S. 334, 341]  way?" Letter From 
the Federal Farmer No. 5, Oct. 13, 1787, 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 anonymity would "reverse the important doctrine of the 
freedom of the press," whose "truth" was "universally acknowledged." 
Detector, New York Journal, Oct. 25, 1787, in Documentary History 318. 
"Detector" proceeded to proclaim that 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 
Anti-Federalist 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 [514 U.S. 334, 342]  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 non-anonymity policy, nor that of 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. [514 U.S. 334, 343]  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 
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 [514 U.S. 334, 344]  "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"; Anti-Federalists 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. 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 [514 U.S. 334, 345]  
favorite medium 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, 175-229 (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, 15 Papers of Alexander Hamilton 33-43 (H. Syrett ed. 1969); Madison, 
Helvidius No. 1, Aug. 24, 1793, 15 Papers of James Madison 66-73 (T. Mason 
et al. 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).

                           IV

This evidence leads me to agree with the majority's result, but not its 
reasoning. The majority fails to seek [514 U.S. 334, 346]  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 6-7, 23. 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 interpreting the Speech [514 
U.S. 334, 347]  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.

Footnotes

[1] The 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.

[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, at 317-318.

[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. [514 U.S. 334, 334] 




