THE JUDICIARY : In U.S., Speech May Be Free, but Can It Be Anonymous Too?

Margaret McIntyre of Westerville, Ohio, was unhappy about a proposed tax increase in her school district, and she decided to fight it in the old-fashioned way. Standing outside a school board meeting, she passed out leaflets urging her fellow citizens to “Vote No on Issue 19, School Tax Levy.”

For that, she was fined $100.

A school official had filed a complaint against her, citing an Ohio election law that requires all campaign leaflets and political ads to include the name and address of the person that issued them. While McIntyre hardly sought to hide her identity, her leaflet identified itself as coming from “Concerned Parents and Taxpayers.”

Now, the case of Margaret McIntyre vs. Ohio, 93-986, has forced the Supreme Court to confront the recurring conflict between the First Amendment and the political disclosure requirements written into the laws of nearly every state as well as the federal government.

Do citizens have a free-speech right to voice their views on political issues anonymously if they so choose? Lawyers for McIntyre say yes, pointing out that The Federalist papers, among the most influential political writings in the nation’s early history, were written under a pseudonym by James Madison, Alexander Hamilton and John Jay.

On other hand, lawyers for the Ohio Election Commission say voters have a right to know who is behind a political pamphlet. These disclosure requirements are the best weapon against false, misleading and even libelous claims, they say.

In November, the California Supreme Court upheld a state election law that requires sponsors of a campaign-season mass mailing to identify themselves. The unanimous ruling rejected a First Amendment challenge filed by Daniel Griset, a Santa Ana councilman who had slammed his opponent in four mailings said to come from the “Santa Ana Progress Committee.” That committee was, in fact, Griset himself, said the Fair Political Practices Commission in Sacramento, and it fined him $2,000 for each mailing.

So far, the Supreme Court has not drawn a clear line between the right to anonymous free speech and the requirement to disclose one’s identity in campaign materials. Instead, it has issued clear precedents that conflict.

In 1960, the justices struck down a Los Angeles ordinance that required handbills to include the name and address of the person producing them. The case of Talley vs. Los Angeles arose when civil rights activists were urging boycotts of businesses that practiced racial discrimination.

Citing this and similar cases from the South, the high court stood up for free speech. “Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all,” the justices said. However, 16 years later, the high court upheld most of the disclosure requirements written into the new federal elections law. Big campaign contributors must be disclosed and campaign ads must identify their sponsors. These requirements are justified as a way to inform the voters and prevent corruption, the court said in Buckley vs. Valeo.

In upholding the fine against McIntyre, the Ohio Supreme Court concluded that the earlier decisions protecting anonymous free speech have been superseded by more recent rulings supporting disclosure requirements.

During the oral argument in October, the justices sounded as though they would side with McIntyre.

“I would have thought that if the First Amendment stood for anything at all,” said Justice Sandra Day O’Connor, it stood for the right to pass out leaflets opposing a tax increase.

Most lawyers who follow election laws are betting the court will issue a narrow ruling that strikes down the McIntyre fine but does not endorse a broad right to anonymous free speech.

California lawyers are closely watching because the state strictly enforces its disclosure requirements.

“You have to remember there are big differences between our law and Ohio’s,” said Steven Churchwell, general counsel of the California Fair Political Practices Commission. “Someone like Mrs. McIntyre passing out leaflets wouldn’t even be covered.”