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

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 23, to the 
considered judgment of the American people's elected representatives from 
coast to coast, the Court discovers a hitherto unknown right-to-be-unknown 
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 [514 U.S. 334, 335]  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 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 [514 U.S. 334, 336]  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 3-13 (THOMAS, J., concurring 
in judgment). The practice of anonymous electioneering may have been less 
general in 1868, 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 7-9 
(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 
[514 U.S. 334, 337]  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, 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 8 
(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 3-4, the 1779 "Leonidas" 
controversy in the Continental Congress, ante, at 4, and the 1779 action by 
the New Jersey Legislative Council against Isaac Collins, ante, at 5, 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 marshalled 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 [514 U.S. 334, 338]  
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 of 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.

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 [514 U.S. 334, 339]  validation of long, accepted usage, bears a 
strong presumption of constitutionality. And that is what we have before us 
here. Section 3599.09(A) 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 less than 24 States had similar laws by the end of World War I,[1] and 
today every State of the Union except California has one,[2] as [514 U.S. 
334, 340]  does the District of Columbia, see D.C. Code 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 universal[3]  
[514 U.S. 334, 341] 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 stand for the 
proposition that post-adoption 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 [514 
U.S. 334, 342]  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 long-accepted 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 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 Cty. 
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). [514 
U.S. 334, 343] 

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. 1, 74 
(1976) (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 provides to the Court's fear 
about the "tyranny of the majority," ante, at 23, 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 8 (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. [514 U.S. 334, 344]  

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 13 (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 19. See also ante, at 2 (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 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 [514 U.S. 
334, 345]  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 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 [514 U.S. 334, 346]  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 19. 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 debate -- which 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. 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 [514 U.S. 334, 347]  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-free! -- 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 14-15. 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 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 [514 
U.S. 334, 348]  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 
22-23, 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 22. 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, 424 U.S., 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 campaign 
literature. If Buckley remains the law, this is an easy case. [514 U.S. 334, 
349] 

                          * * *

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 23. 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 48 other States and the Federal Government -- on 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.

Footnotes

[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, 