McIntyre v. Ohio Elections Commission
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''McIntyre v. Ohio Elections Commission'', 514 U.S. 334 (1995), is a case in which the
Supreme Court of the United States The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
held that an Ohio statute prohibiting anonymous campaign literature is
unconstitutional Constitutionality is said to be the condition of acting in accordance with an applicable constitution; "Webster On Line" the status of a law, a procedure, or an act's accordance with the laws or set forth in the applicable constitution. When l ...
because it violates the First Amendment to the U.S. Constitution, which protects the freedom of speech. In a 7–2 decision authored by Justice John Paul Stevens, the Court found that the First Amendment protects the decision of an author to remain anonymous. On April 27, 1988, Margaret McIntyre stood outside of a middle school in
Westerville, Ohio Westerville is a city in Franklin County, Ohio, Franklin and Delaware County, Ohio, Delaware counties in the U.S. state of Ohio. A northeastern suburb of Columbus, Ohio, Columbus, the population was 39,190 at the 2020 United States Census, 2020 ...
, and passed out anonymous leaflets that opposed a proposed school district
tax levy A tax levy under United States federal law is an administrative action by the Internal Revenue Service (IRS) under statutory authority, generally without going to court, to seize property to satisfy a tax liability. The levy "includes the power ...
. The Ohio Elections Commission fined McIntyre $100 for violating a state law that prohibited the distribution of any kind of political or campaign literature that does not have the name and address of the person responsible for its contents. With the help of the
American Civil Liberties Union The American Civil Liberties Union (ACLU) is a nonprofit organization founded in 1920 "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States". T ...
, McIntyre appealed the fine in court. The county court reversed the fine, holding that because McIntyre did not attempt to mislead the public, the Ohio statute was unconstitutional as it applied to her actions. However, the state court of appeals reinstated the fine, referring to a 1922 decision by the
Ohio Supreme Court The Ohio Supreme Court, Officially known as The Supreme Court of the State of Ohio is the highest court in the U.S. state of Ohio, with final authority over interpretations of Ohio law and the Ohio Constitution. The court has seven members, a ...
as precedent, and the Ohio Supreme Court affirmed. The U.S. Supreme Court reversed the Ohio Supreme Court on April 19, 1995. As precedent, the Court referred to its decision in '' Talley v. California'' (1960), in which the Court found a similar law prohibiting anonymous leafletting unconstitutional, as well as the role of anonymous political literature throughout history, one example being ''
The Federalist Papers ''The Federalist Papers'' is a collection of 85 articles and essays written by Alexander Hamilton, James Madison, and John Jay under the collective pseudonym "Publius" to promote the ratification of the Constitution of the United States. The c ...
''. The Court's majority opinion emphasized the importance of anonymous speech, describing it as "not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent".''McIntyre'', 514 U.S. 334 at 357. The effect of the Court's opinion on anonymous speech has been analyzed in the contexts of television and radio advertisements, campaign finance, and the Internet.


Background


Ohio statute and prior case law

The
First Amendment to the United States Constitution The First Amendment (Amendment I) to the United States Constitution prevents the government from making laws that regulate an establishment of religion, or that prohibit the free exercise of religion, or abridge the freedom of speech, the ...
prevents the federal government from abridging the freedom of speech, and the Fourteenth Amendment extends this prohibition to state governments under the
incorporation doctrine In United States constitutional law, incorporation is the doctrine by which portions of the Bill of Rights have been made applicable to the states. When the Bill of Rights was ratified, the courts held that its protections extended only to the ...
. Section 3599.09(A) of the
Ohio Revised Code The ''Ohio Revised Code'' contains all current statutes of the Ohio General Assembly of a permanent and general nature, consolidated into provisions, titles, chapters and sections. However, the only official publication of the enactments of the G ...
forbade the creation and distribution of any kind of publication "... designed to promote the adoption or defeat of any issue, or to influence the voters in any election ..." unless the publication contains the name and address of the person responsible for the content of the publication." Previously, in a case called ''State v. Babst'' (1922), the Supreme Court of Ohio, the state's highest court, upheld the
constitutionality Constitutionality is said to be the condition of acting in accordance with an applicable constitution; "Webster On Line" the status of a law, a procedure, or an act's accordance with the laws or set forth in the applicable constitution. When l ...
of the "statutory predecessor" of section 3599.09(A). However, in '' Talley v. California'' (1960), the
Supreme Court of the United States The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
held that a similar
Los Angeles Los Angeles ( ; es, Los Ángeles, link=no , ), often referred to by its initials L.A., is the largest city in the state of California and the second most populous city in the United States after New York City, as well as one of the world' ...
city ordinance A local ordinance is a law issued by a local government. such as a municipality, county, parish, prefecture, or the like. China In Hong Kong, all laws enacted by the territory's Legislative Council remain to be known as ''Ordinances'' () af ...
prohibiting all anonymous leafletting was unconstitutional because it violated the First Amendment. The U.S. Supreme Court has also discussed whether disclosure of an anonymous individual's identity is permissible in certain situations. In ''
Buckley v. Valeo ''Buckley v. Valeo'', 424 U.S. 1 (1976), was a landmark decision of the US Supreme Court on campaign finance. A majority of justices held that, as provided by section 608 of the Federal Election Campaign Act of 1971, limits on election expenditu ...
'' (1976), the Court upheld, among other things, a part of the Federal Election Campaign Act that required the public disclosure of political campaign contributions above a certain dollar amount. Applying a standard of
exacting scrutiny Intermediate scrutiny, in U.S. constitutional law, is the second level of deciding issues using judicial review. The other levels are typically referred to as rational basis review (least rigorous) and strict scrutiny (most rigorous). In order t ...
, the Court determined that the government's interest in providing the electorate with information about campaign contributions outweighed the First Amendment concerns in the case of ''Buckley''. In ''
First National Bank of Boston v. Bellotti ''First National Bank of Boston v. Bellotti'', 435 U.S. 765 (1978), is a U.S. constitutional law case which defined the free speech right of corporations for the first time. The United States Supreme Court held that corporations have a First Amen ...
'' (1978), the Court invalidated a Massachusetts law that made it a crime to use corporate funds to influence the voters of an election. As part of its analysis, the Court commented that "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".


Facts of the case

On the evening of April 27, 1988, the superintendent of Westerville City School District held a public meeting at Blendon Middle School in
Westerville, Ohio Westerville is a city in Franklin County, Ohio, Franklin and Delaware County, Ohio, Delaware counties in the U.S. state of Ohio. A northeastern suburb of Columbus, Ohio, Columbus, the population was 39,190 at the 2020 United States Census, 2020 ...
, to discuss a new school district
tax levy A tax levy under United States federal law is an administrative action by the Internal Revenue Service (IRS) under statutory authority, generally without going to court, to seize property to satisfy a tax liability. The levy "includes the power ...
. On the same day, an Ohioan named Margaret McIntyre stood outside the school and distributed leaflets to meeting attendants, asking them to vote no on the tax levy issue. Some of the leaflets did not identify her as the author, instead identifying the message as coming from "concerned parents and tax payers". While she was distributing the leaflets, a school official who supported the tax proposal warned McIntyre that her anonymous leaflets were unlawful. Despite the warning, McIntyre continued to distribute the leaflets at a meeting the next day.''McIntyre'', 514 U.S. 334 at 338. The tax levy issue failed to pass on its first try. In November 1988, in the third election on which the issue was presented, the tax levy was finally approved. Five months after the levy passed, the same school official who warned McIntyre about her anonymous leaflets filed a complaint with the Ohio Elections Commission, accusing McIntyre of violating section 3599.09(A) of the Ohio Revised Code. The commission found her guilty and fined her $100.


Lower court proceedings

McIntyre appealed the fine to the
Franklin County Court of Common Pleas Franklin may refer to: People * Franklin (given name) * Franklin (surname) * Franklin (class), a member of a historical English social class Places Australia * Franklin, Tasmania, a township * Division of Franklin, federal electoral d ...
, which reversed the fine, holding that because McIntyre "did not 'mislead the public nor act in a surreptitious manner'", section 3599.09(A) was unconstitutional as it applied to her actions. McIntyre was represented by David Goldberger, an attorney for the
American Civil Liberties Union The American Civil Liberties Union (ACLU) is a nonprofit organization founded in 1920 "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States". T ...
. The Ohio Court of Appeals reversed that court, putting back the fine. In a divided vote, the majority of the judges felt bound by the precedent set in ''State v. Babst'' (1922) by the Supreme Court of Ohio, which upheld the "statutory predecessor" of section 3599.09(A). The judge who dissented from the opinion argued that the U.S. Supreme Court's intervening decision in ''Talley v. California'' (1960) "compelled the Ohio court to adopt a narrowing construction of the statute to save its constitutionality".''McIntyre'', 514 U.S. 334 at 339. The Ohio Supreme Court affirmed the Court of Appeals, also by a divided vote. The majority of the state supreme court justices felt that the Ohio statute was different from the city ordinance in ''Talley'', finding that section 3599.09(A) "has as its purpose the identification of persons who distribute materials containing false statements". In a dissenting opinion, Justice J. Craig Wright wrote that section 3599.09(A) "'is not narrowly tailored to serve a compelling state interest and is, therefore, unconstitutional as applied to McIntyre.'"


Supreme Court

Margaret McIntyre died while the case was still being litigated in the state courts. On behalf of Joseph McIntyre, the executor of McIntyre's estate, the
American Civil Liberties Union The American Civil Liberties Union (ACLU) is a nonprofit organization founded in 1920 "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States". T ...
filed a petition for a writ of ''
certiorari In law, ''certiorari'' is a court process to seek judicial review of a decision of a lower court or government agency. ''Certiorari'' comes from the name of an English prerogative writ, issued by a superior court to direct that the record of ...
'' with the Supreme Court of the United States, which the Court granted on February 22, 1994.''McIntyre'', 514 U.S. 334 at 340–41. Justice Stevens later wrote, "Even though the
amount in controversy Amount in controversy (sometimes called jurisdictional amount) is a term used in civil procedure to denote the amount at stake in a lawsuit, in particular in connection with a requirement that persons seeking to bring a lawsuit in a particular cour ...
is only $100", the Court's grant of ''certiorari'' "reflects our agreement with he executor'sappraisal of the importance of the question presented".


Opinion of the Court

Justice John Paul Stevens delivered the opinion of the Court on April 19, 1995, reversing the Ohio Supreme Court in a 7–2 decision.''McIntyre'', 514, U.S. 334 at 335. Stevens emphasized that the First Amendment protects a right to anonymity, referring to ''Talley'' as precedent, and stated that Ohio's interests in preventing fraud and informing the electorate were insufficient to justify the sweeping scope of its statute. Stevens also rejected the argument that the Court's prior decisions in ''Bellotti'' and ''Buckley'' compel the Court to uphold the Ohio statute.


Freedom to publish anonymously

Stevens began his First Amendment analysis by quoting ''Talley v. California'', where the Court wrote: "Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind." Stevens noted various well-known authors throughout literary history who had opted to publish either anonymously or under a pseudonym, including
Mark Twain Samuel Langhorne Clemens (November 30, 1835 – April 21, 1910), known by his pen name Mark Twain, was an American writer, humorist, entrepreneur, publisher, and lecturer. He was praised as the "greatest humorist the United States has p ...
, O. Henry,
Benjamin Franklin Benjamin Franklin ( April 17, 1790) was an American polymath who was active as a writer, scientist, inventor, statesman, diplomat, printer, publisher, and political philosopher. Encyclopædia Britannica, Wood, 2021 Among the leading inte ...
, and
Voltaire François-Marie Arouet (; 21 November 169430 May 1778) was a French Age of Enlightenment, Enlightenment writer, historian, and philosopher. Known by his ''Pen name, nom de plume'' M. de Voltaire (; also ; ), he was famous for his wit, and his ...
. He then stated that the "freedom to publish anonymously extends beyond the literary realm", referring to the decision in ''Talley'', as well as ''
The Federalist Papers ''The Federalist Papers'' is a collection of 85 articles and essays written by Alexander Hamilton, James Madison, and John Jay under the collective pseudonym "Publius" to promote the ratification of the Constitution of the United States. The c ...
'', a collection of anonymous essays written by
Alexander Hamilton Alexander Hamilton (January 11, 1755 or 1757July 12, 1804) was an American military officer, statesman, and Founding Father who served as the first United States secretary of the treasury from 1789 to 1795. Born out of wedlock in Charlest ...
,
James Madison James Madison Jr. (March 16, 1751June 28, 1836) was an American statesman, diplomat, and Founding Father. He served as the fourth president of the United States from 1809 to 1817. Madison is hailed as the "Father of the Constitution" for hi ...
, and
John Jay John Jay (December 12, 1745 – May 17, 1829) was an American statesman, patriot, diplomat, abolitionist, signatory of the Treaty of Paris, and a Founding Father of the United States. He served as the second governor of New York and the f ...
to promote the ratification of what is now the U.S. Constitution. In justifying a First Amendment right to anonymity, Stevens wrote that while curiosity might cause a reader to inquire about an author's identity, an author's "decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible". Stevens added that anonymity "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". Stevens concluded that ''Talleys reasoning "embraced a respected tradition of anonymity in the advocacy of political causes", stating that "this tradition is perhaps best exemplified by the secret ballot, the hard-won right to vote one's conscience without fear of retaliation".


Exacting scrutiny standard

Because Ohio's law was "a regulation of pure speech" as opposed to a regulation of merely "the mechanics of the electoral process", Stevens applied a standard of "
exacting scrutiny Intermediate scrutiny, in U.S. constitutional law, is the second level of deciding issues using judicial review. The other levels are typically referred to as rational basis review (least rigorous) and strict scrutiny (most rigorous). In order t ...
", a more rigorous standard of scrutiny than the Ohio Supreme Court had applied. Under this standard, the Court may uphold Ohio's law "only if it is narrowly tailored to serve an overriding state interest". Specifically, Ohio must demonstrate that its stated interests "in preventing fraudulent and libelous statements" and "in providing the electorate with relevant information" are sufficient to justify its law against anonymous campaign literature. Stevens stated that the interest of "informing the electorate" is "plainly insufficient to support the constitutionality of its disclosure requirement", writing that "the identity of the speaker is no different from other components of the document's content that the author is free to include or exclude". On the other hand, Stevens acknowledged that the fraud and libel prevention interest "carries special weight during election campaigns when false statements, if credited, may have serious adverse consequences for the public at large". However, Stevens also commented that Ohio's election laws include "detailed and specific prohibitions against making or disseminating false statements during political campaigns" and that "Ohio's prohibition of anonymous leaflets plainly is not its principal weapon against fraud". Stevens concluded that while Ohio's prohibition may "serve as an aid to enforcement of the specific prohibitions and as a deterrent to the making of false statements by unscrupulous prevaricators", these "ancillary benefits" do not justify the Ohio statute's "extremely broad prohibition", particularly because it "encompasses documents that are not even arguably false or misleading".


''Bellotti'' and ''Buckley''

Stevens concluded that neither of the Court's prior decisions in ''First National Bank of Boston v. Bellotti'' and ''Buckley v. Valeo'' is "controlling" in ''McIntyre''. With respect to ''Bellotti'', Stevens clarified that "although we commented in dicta on the prophylactic effect of requiring identification of the source of corporate advertising, that footnote did not necessarily apply to independent communications by an individual like Mrs. McIntyre". Additionally, while ''Buckley'' "concerned contributions to politicalcandidate or expenditures by the candidate or his responsible agent", Stevens wrote that the case "had no reference to the kind of independent activity pursued by Mrs. McIntyre".


Dissent and concurrence

Justice
Clarence Thomas Clarence Thomas (born June 23, 1948) is an American jurist who serves as an associate justice of the Supreme Court of the United States. He was nominated by President George H. W. Bush to succeed Thurgood Marshall and has served since 199 ...
filed an opinion concurring in the judgment only. Thomas agreed with the majority opinion that the Ohio law prohibiting anonymous campaign literature was unconstitutional because it violated the First Amendment, but would have applied "a different methodology to this case". Rather than analyze the "tradition" and "value" of anonymous speech in American history, Thomas stated that the Court should instead "determine whether the phrase 'freedom of speech, or of the press,' as originally understood, protected anonymous political leafletting". After analyzing historical evidence, Thomas concluded that the
original intent Original intent is a theory in law concerning constitutional and statutory interpretation. It is frequently used as a synonym for originalism; while original intent is indeed one theory in the originalist family, it has some salient differenc ...
of the First Amendment included a protection of anonymous speech and criticized the majority for adopting "an analysis that is largely unconnected to the Constitution's text and history". Justice
Antonin Scalia Antonin Gregory Scalia (; March 11, 1936 – February 13, 2016) was an American jurist who served as an associate justice of the Supreme Court of the United States from 1986 until his death in 2016. He was described as the intellectu ...
filed a
dissenting opinion A dissenting opinion (or dissent) is an opinion in a legal case in certain legal systems written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment. Dissenting opinions are no ...
, in which Chief Justice
William Rehnquist William Hubbs Rehnquist ( ; October 1, 1924 – September 3, 2005) was an American attorney and jurist who served on the U.S. Supreme Court for 33 years, first as an associate justice from 1972 to 1986 and then as the 16th chief justice from ...
joined. Scalia rejected the Court's opinion that the First Amendment protects a "right-to-be-unknown while engaging in politics". Responding to the majority and to Justice Thomas, Scalia stated that "to prove that anonymous electioneering was used frequently is not to establish that it is a constitutional right", concluding that there was a scarcity of historical evidence that "anonymous electioneering" was regarded as such by the Framers of the Constitution. In the absence of such evidence, Scalia looked towards "the widespread and longstanding traditions of our people", commenting that laws similar to Ohio's exist in every U.S. state except California and that the history of these laws extends to the nineteenth century. Scalia also concluded that prior case law would also justify upholding Ohio's statute. Specifically, previous cases support that "protection of the election process justifies limitations upon speech that cannot constitutionally be imposed generally" and reject that "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". Scalia further stated that "the prohibition of anonymous campaigning is effective in protecting and enhancing democratic elections". Justice
Ruth Bader Ginsburg Joan Ruth Bader Ginsburg ( ; ; March 15, 1933September 18, 2020) was an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1993 until her death in 2020. She was nominated by President ...
filed a
concurring opinion In law, a concurring opinion is in certain legal systems a written opinion by one or more judges of a court which agrees with the decision made by the majority of the court, but states different (or additional) reasons as the basis for their deci ...
, in which she responded to Scalia's dissent, emphasizing the narrow scope of the majority's decision: "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."


Analysis and impact

''McIntyre'' has been referred to in analyses of the relationship between anonymous speech and the First Amendment. In an article published in the ''
North Carolina Law Review The ''North Carolina Law Review'' is the law journal of the University of North Carolina School of Law. It was established in 1922 and is published in six issues each year. As of 2017, the ''North Carolina Law Review'' was ranked #30 among US law ...
'', Richard K. Norton wrote that the majority opinion in ''McIntyre'' "left the jurisprudential door slightly cracked, suggesting the possibility that some kind of acceptable proscription on anonymous speech exists, but gave no indication what such a proscription might look like". Norton argued that ''McIntyres "legal analysis does not provide a satisfying exposition of the concerns truly driving the debate, nor does it offer a satisfactory guide for predicting how the Court will rule on future anonymous political speech questions". Responding to Norton's claim, Amy Constantine wrote in a ''
Connecticut Law Review The ''Connecticut Law Review'' is a quarterly law review produced by students of the University of Connecticut School of Law. It publishes more than 1,000 pages of critical legal discussion each year and is managed entirely by a student board of ed ...
'' article that "''McIntyre'' nonetheless is an important decision that recognizes a ''
de minimis ''De minimis'' is a Latin expression meaning "pertaining to minimal things", normally in the terms ''de minimis non curat praetor'' ("The praetor does not concern himself with trifles") or ''de minimis non curat lex'' ("The law does not concern i ...
'' exception to campaign literature disclosure statutes". Constantine added that "in a broader context, the decision affirms this country's historical commitment to protecting core political speech and protection of the marketplace of ideas metaphor" and "has tremendous ramifications for the forty-eight states, including Connecticut, that have similar disclosure statutes for political campaign literature".


Political campaign advertisements

At the beginning of 1995, the year the Supreme Court decided ''McIntyre'', all U.S. states (plus the District of Columbia) except California had laws similar to the Ohio law prohibiting anonymous campaign literature.''McIntyre'', 514 U.S. 334 at 376, n.2 (Scalia, J., dissenting). In an analysis published in the ''
Catholic University Law Review The ''Catholic University Law Review'' is a student-run quarterly law review published by the Columbus School of Law (The Catholic University of America). Overview The journal was established in 1950 and is the Columbus School of Law's oldest l ...
'', Rachel J. Grabow concluded that "because some of the Court's language in ''McIntyre'' is unclear, and the decision leaves unanswered questions, ''McIntyres future is difficult to predict". Grabow cited Scalia's dissenting opinion, stating that Scalia had "posited that it was impossible to know whether ''McIntyre'' invalidated other existing identification statutes" and that "it would take decades to flesh out the scope of the right to distribute anonymous campaign literature". Grabow criticized the Court's decision, arguing that "the majority opinion fails to fully consider Ohio's strong interests in preventing fraudulent campaign-related statements and providing information to its electorate". Grabow disagreed with the Court's use of the
exacting scrutiny Intermediate scrutiny, in U.S. constitutional law, is the second level of deciding issues using judicial review. The other levels are typically referred to as rational basis review (least rigorous) and strict scrutiny (most rigorous). In order t ...
standard in striking down Ohio's law, arguing that other state regulations on the electoral process are reviewed at a lower standard and that "subjecting all election regulations to exacting scrutiny would substantially hinder the states' ability to ensure fair elections". Grabow also argued that even under the exacting scrutiny standard, "the Court underestimated the strength of Ohio's interest in an informed electorate".


Television and radio advertisements

At the time the Supreme Court decided ''McIntyre'', thirty-one states had laws that required sponsors of political television and radio advertisements to identify themselves in the advertisement. In an analysis published in 1996 by the ''
University of Chicago Law Review The ''University of Chicago Law Review'' ( Maroonbook abbreviation: ''U Chi L Rev'') is the flagship law journal published by the University of Chicago Law School. It is among the top five most cited law reviews in the world. Up until 2020, it util ...
'', Thomas Dupree Jr. wrote that because of the ''McIntyre'' decision "the constitutionality of these statutes has been cast into doubt". However, Dupree qualified that statement by saying that the "precise scope of ''McIntyre'' is far from clear" and that "the Court offered little guidance as to the decision's applicability to statutes that regulate a narrower class of speakers—such as candidates for political office—or a communications medium other than print". Dupree stated that he "advocates a narrow interpretation of ''McIntyre''", arguing that "state disclosure laws, narrowly tailored to include only candidates or their agents communicating via broadcast media, remain constitutional after ''McIntyre''". According to Dupree, "Historically, the Court has applied lighter First Amendment scrutiny to restrictions on broadcast communication than to restrictions on print communication". Additionally, Dupree argued that while the Ohio law in question in ''McIntyre'' was "overly broad" because it regulated political speech "by all citizens", a narrower statute limited only to political candidates would leave "untouched anonymous speech by private individuals like Mrs. McIntyre, without clearing the way for candidates to engage in anonymous warfare over the airwaves".


Campaign finance

In an article published in the ''William & Mary Bill of Rights Journal'', legal scholar
Richard Briffault Richard Briffault is an American legal scholar. He is the Joseph P. Chamberlain Professor of Legislation at Columbia Law School. Biography Briffault earned a bachelor's degree from Columbia University in 1974. During his undergraduate studies, ...
commented that even though ''McIntyre'' invalidated a disclosure law on constitutional grounds, the decision did not undermine "the Court's general support for the public dissemination of campaign finance information". Briffault commented that in ''
McConnell v. FEC ''McConnell v. Federal Election Commission'', 540 U.S. 93 (2003), is a case in which the Supreme Court of the United States, United States Supreme Court upheld the constitutionality of most of the Bipartisan Campaign Reform Act (BCRA), often referr ...
'' (2003), "the Court easily upheld the extension of disclosure requirements to electioneering communications". According to Briffault, "Justice Thomas's contention in his ''McConnell'' dissent that ''McIntyre'' changed the constitutional analysis of disclosure and required that disclosure requirements be subject to strict judicial scrutiny was given short shrift by the rest of the Court". The Court would further distinguish disclosure laws from the Ohio law in ''McIntyre'' in subsequent cases such as ''
Citizens United v. FEC ''Citizens United v. Federal Election Commission'', 558 U.S. 310 (2010), was a landmark decision of the Supreme Court of the United States regarding campaign finance laws and free speech under the First Amendment to the U.S. Constitution. It wa ...
'' (2010) and '' Doe v. Reed'' (2010). According to Briffault, "''Citizens United'' also dealt with—and strongly upheld—some of the disclosure provisions of federal campaign finance law, thus, confirming once again that even campaign spending that cannot be limited may be subject to disclosure". In ''Doe'', the Court held that requiring disclosure of signatures on a referendum does not violate the First Amendment.


Internet anonymity

''McIntyre'' has been cited in cases involving
defamation Defamation is the act of communicating to a third party false statements about a person, place or thing that results in damage to its reputation. It can be spoken (slander) or written (libel). It constitutes a tort or a crime. The legal defini ...
by anonymous Internet users (sometimes described as "cybersmears"). In an analysis published in the ''
Washington and Lee Law Review The ''Washington and Lee Law Review'' is a law review published four times each year by the Washington and Lee University School of Law and founded in 1939. It presents lead articles contributed by leading scholars, judges, and lawyers, as well ...
'', Caroline Strickland wrote that although the Court's decision in ''McIntyre'' "emphasized a general respect for the anonymous advocacy of political causes, it did not contemplate anonymous unlawful speech such as the Internet postings challenged in cybersmear lawsuits". Strickland stated that "public interest groups, court documents, and legal practitioners often cite ''McIntyre v. Ohio Elections Commission'' as an authority for the protection of anonymous Internet speech", but also wrote that "many citations to ''McIntyre'' presuppose that its rationale applies in the cybersmear context and fail to address the distinctions between Mrs. McIntyre's speech and alleged cybersmear". Specifically, Strickland stated that the "most blatant misapplications of ''McIntyre'' fail to address the fact that McIntyre did not directly contemplate fraudulent, libelous, or otherwise unlawful, anonymous speech". Strickland ultimately concluded that because of these and other distinctions, "neither the First Amendment nor ''McIntyre'' protects the intentionally false speech challenged in some cybersmear lawsuits". Strickland compared ''McIntyre'' to two subsequent cases, both concerning requests for a process called "expedited discovery", by which a court can attempt to "facilitate efforts to identify and to serve an unknown defendant". The first was a 2000 case in which a
Virginia Circuit Court The Virginia Circuit Courts are the state trial courts of general jurisdiction in the Commonwealth of Virginia. The Circuit Courts have jurisdiction to hear civil and criminal cases. For civil cases, the courts have authority to try cases with a ...
"used ''McIntyre'' in its First Amendment analysis to extend the protection of anonymous speech to the Internet context", but "maintained, however, that the right was not absolute and did not extend to unlawful Internet statements". The second was ''
Dendrite International, Inc. v. Doe No. 3 ''Dendrite International, Inc. v. Doe No. 3'', 342 N.J. Super. 134, 775 A.2d 756 (App. Div. 2001), is a New Jersey Superior Court case in which Dendrite International, Inc., a purveyor of computer software used in the pharmaceutical industry, br ...
'' (2001), a case in which a New Jersey court denied expedited discovery of the identities of two anonymous individuals. According to Strickland, "The court noted the factual distinctions of ''McIntyre'', yet stated that its general principle – that the First Amendment protects anonymous speech – nevertheless applied". Jasmine McNealy, an assistant professor at the
S. I. Newhouse School of Public Communications The S.I. Newhouse School of Public Communications, commonly known as Newhouse School, is the communications and journalism school of Syracuse University in Syracuse, NY. It has programs in print and broadcast journalism; music business; graphic ...
at
Syracuse University Syracuse University (informally 'Cuse or SU) is a Private university, private research university in Syracuse, New York. Established in 1870 with roots in the Methodist Episcopal Church, the university has been nonsectarian since 1920. Locate ...
, responded to Strickland's article in a paper published in the ''
First Amendment Law Review The ''First Amendment Law Review'' is a law journal published by students at the University of North Carolina School of Law. it publishes articles related to the First Amendment of the United States Constitution The First Amendment (Amend ...
'', stating that Strickland's conclusion "does not recognize, however, that plaintiffs are asking for the discovery of the defendant's identity before there is an actual adjudication of whether the comments at issue are truly defamatory". McNealy stated that "''McIntyre'' can be viewed as supporting anonymous online speech". However, in an analysis of various anonymous online speech cases that cite ''McIntyre'', McNealy found that "most of the courts citing ''McIntyre'' used it as a reference citation, and not as a decision that must be followed or explained". McNealy concluded, "In sum, the influence of the U.S. Supreme Court's decision in ''McIntyre'' has not been as significant as thought possible with respect to online anonymous speech."


See also

* ''
National Association for the Advancement of Colored People v. Alabama ''National Association for the Advancement of Colored People v. Alabama'', 357 U.S. 449 (1958), was a landmark decision of the US Supreme Court. Alabama sought to prevent the NAACP from conducting further business in the state. After the circuit ...
'' * '' Citizens for Tax Reform v. Deters'' * ''
Anderson v. Celebrezze ''Anderson v. Celebrezze'', 460 U.S. 780 (1983), was a United States Supreme Court case in which the Court held that Ohio's filing deadline for independent candidates was unconstitutional. Background John B. Anderson was a declared candidate f ...
'' * '' Apple v. Does'' * '' Hard Drive Productions, Inc. v. Does 1-1,495''


Footnotes


References

; Citations ; Sources * * * * * . * * *


External links

* {{US1stAmendment, speech, state=expanded United States Free Speech Clause case law United States Supreme Court cases United States Supreme Court cases of the Rehnquist Court 1995 in United States case law American Civil Liberties Union litigation Ohio elections