McIntyre v. Ohio Elections Commission
Decided on Apr. 19, 1995; 514 US 334

The legality of distributing anonymous campaign literature is challenged


A. Issues Discussed: 1st Amendment (press, speech, association)

B. Legal Question Presented:

Does a state prohibition on the distribution of anonymous campaign literature violate the First Amendment’s protection of freedom of speech?

A. Background:

Petitioner, Margaret McIntyre, distributed leaflets opposing a school tax levy and claiming to express the views of  "concerned parents and tax payers." McIntyre was fined by respondent, the Ohio Elections Commission, for violating section 3599.09(A) of the Ohio State Code, which prohibits the distribution of campaign literature without the name or address of the distributor.

The Court of Common Pleas reversed the fine, but it was reinstated by the Ohio Court of Appeals. The Ohio Supreme Court then affirmed the Court of Appeals holding that 3599.09(A) imposed only "reasonable and nondiscriminatory" burdens on voters' First Amendment rights. After McIntyre's death, the executor of her estate filed a petition for certiorari, arguing that McIntyre's First Amendment freedom of speech rights were abridged and the United States Supreme Court granted her petition to review the case.
B. Counsel of Record:
Opposing Side
David A. Goldberger argued the cause for petitioner. With him on the brief were Steven R. Shapiro, Joel M. Gora, Barbara P. O’Toole, and Kevin E. O’Neil of the ACLU, and George Q. Vaile.
Ohio Assistant Attorney General Andrew I. Sutter argued the cause for respondent. With him on the brief were Robert A. Zimmerman, James M. Harrison, Lee Fisher, Andrew S. Bergman, Richard A. Cordray, and Simon B. Karas.
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Briefs of amici curiae urging affirmance were filed for the State of Tennessee et al. by Charles W Burson, Attorney General of Tennessee, Michael E. Moore, Solicitor General, and Michael W Catalano, and by the Attorneys General for their respective States as follows: Jimmy Evans of Alabama, Bruce M. Botelho of Alaska, Winston Bryant of Arkansas, Gale A. Norton of Colorado, Charles M. Oberly III of Delaware, Robert A. Butterworth of Florida, Larry EchoHawk of Idaho, Roland W. Burris of Illinois, Pamela Fanning Carter of Indiana, Chris Gorman of Kentucky, Richard P. Ieyoub of Louisiana, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Mike Moore of Mississippi, Joseph P. Mazurek of Montana, Frankie Sue Del Papa of Nevada, Jeffrey R. Howard of New Hampshire, Deborah T. Poritz of New Jersey, Michael F. Easley of North Carolina, Heidi Heitkamp of North Dakota, Susan B. Loving of Oklahoma, T. Travis Medlock of South Carolina, Mark Barnett of South Dakota, and Jeffrey L. Amestoy of Vermont; and for the Council of State Governments et al. by Richard Ruda and Lee Fennell.

"[A]n author's decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.

The freedom to publish anonymously extends beyond the literary realm. In Talley, the Court held that the First Amendment protects the distribution of unsigned handbills urging readers to boycott certain Los Angeles merchants who were allegedly engaging in discriminatory employment practices... Writing for the Court, Justice Black noted that '[p]ersecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all...' Justice Black recalled England's abusive press licensing laws and seditious libel prosecutions, and he reminded us that even the arguments favoring the ratification of the Constitution advanced in the Federalist Papers were published under fictitious names...

Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority... It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation - and their ideas from suppression - at the hand of an intolerant society. The right to remain anonymous may be abused when it shields fraudulent conduct. But political speech by its nature will sometimes have unpalatable consequences, and, in general, our society accords greater weight to the value of free speech than to the dangers of its misuse... Ohio has not shown that its interest in preventing the misuse of anonymous election related speech justifies a prohibition of all uses of that speech. The State may, and does, punish fraud directly. But it cannot seek to punish fraud indirectly by indiscriminately outlawing a category of speech, based on its content, with no necessary relationship to the danger sought to be prevented. One would be hard pressed to think of a better example of the pitfalls of Ohio's blunderbuss approach than the facts of the case before us...

The judgment of the Ohio Supreme Court is reversed."
Justice Vote:  7 Pro vs. 2 Con

  • Stevens, J.  Pro (Wrote majority opinion)
  • O’Connor, S.  Pro (Joined majority opinion)
  • Kennedy, A.  Pro (Joined majority opinion)
  • Souter, D.  Pro (Joined majority opinion)
  • Breyer, S.  Pro (Joined majority opinion)
  • Thomas, C.  Pro (Wrote concurring opinion)
  • Ginsburg, R.  Pro (Wrote concurring opinion)
  • Scalia, A.  Con (Wrote dissenting opinion)
  • Rehnquist, W.  Con (Joined Scalia's dissenting opinion)

The ACLU provided counsel to the petitioner and sought reversal. The US Supreme Court reversed the lower court's decision in a 7-2 vote, giving the ACLU an apparent win.