From EPIC 2.06: ======================================================================= [2] Supreme Court Upholds Anonymous Speech ======================================================================= In an important case for privacy and free speech advocates, the Supreme Court ruled recently that the First Amendment protects anonymous political speech. In McIntyre v. Ohio Election Commission, decided April 19, 1995, the Court struck down an Ohio law that required the disclosure of personal identity on political literature. The petitioner McIntyre distributed pamphlets opposing a proposed school tax levy. The pamphlets were signed simply "Concerned Parents and Taxpayers." McIntyre was fined under a provision of the Ohio code that prohibited the distribution of campaign literature that does not contain the name and address of the person who issued the literature. The Supreme Court ruled that the ordinance violates the First Amendment. The Court said that the ordinance burdened core political speech and noted that the documents covered by the law included only publications intended to influence voters on political issues. The Court relied in part on a 1960 opinion, Talley v. California, which held that the First Amendment protected anonymous speech. The Supreme Court also said that the ban on anonymous speech is not justified by the state's asserted interest in preventing the distribution of fraudulent and libelous information. The Court said that there are more direct ways to address that problem and said also that the code's broad prohibition of anonymous leaflets covered all documents, regardless of whether they are arguably false or misleading. Justice Steven's opinion for the Court note that arguments favoring the ratification of the Constitution advanced in the Federalist Papers were published under fictitious names. Justice Stevens said "quite apart from any threat of persecution, an advocate may believe her ideas will be more persuasive if her readers are unaware of her identity. Anonymity thereby 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 "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. " In a surprising and somewhat strained opinion, Justice Scalia wrote in dissent that he could "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." The Court's opinion in McIntyre vs Ohio Election Commission may be significant for several emerging privacy issues. Anonymity is a hotly debated topic in such areas as on-line commerce, the Intelligent Transportation System, electronic mail, and news groups postings. The Court's opinion in McIntyre makes clear that, at least as far as the expression of political opinion is concerned, the Court will continue to view anonymous speech as protected by the First Amendment. A copy of the opinion is available via ftp/gopher from cpsr.org/cpsr/ free_speech/mcintyre.txt or http://epic.org/free_speech/...and an older case...
Date: Tue, 17 Jan 1995 18:00:02 -0800
From: Phil Agre >pagre@weber.ucsd.edu<
To: rre@weber.ucsd.edu
Subject: Supreme Court decision on anonymity
Dave Banisar from the Electronic Privacy Information Center sent
me the enclosed text of the US Supreme Court's decision denying the
constitutionality of laws banning anonymous leaflets. This decision
has an obvious relevance to current debates about regulating anonymous
messages on the Internet.
Date: Tue, 17 Jan 1995 16:17:44 EST
From: Dave Banisar >banisar@washofc.epic.org<
Subject: anonymity
[...]
TALLEY v. CALIFORNIA
SUPREME COURT OF THE UNITED STATES
362 U.S. 60
January 13-14, 1960, Argued
March 7, 1960, Decided
Certiorari to the Appellate Department of the Superior Court of
California, Los Angeles County.
172 Cal. App. 2d Supp. 797, 332 P. 2d 447, reversed.
A. L. Wirin and Hugh R. Manes argued the cause for petitioner. With
them on the brief was Fred Okrand.
Philip E. Grey argued the cause for respondent. With him on the
brief was Roger Arnebergh.
Shad Polier, Will Maslow, Leo Pfeffer and Joseph B. Robison filed
a brief for the American Jewish Congress, as amicus curiae, urging
reversal.
Warren, Black, Frankfurter, Douglas, Clark, Harlan, Brennan,
Whittaker, Stewart
MR. JUSTICE BLACK delivered the opinion of the Court.
The question presented here is whether the provisions of a Los
Angeles City ordinance restricting the distribution of handbills
"abridge the freedom of speech and of the press secured against state
invasion by the Fourteenth Amendment of the Constitution." n1 The
ordinance, @ 28.06 of the Municipal Code of the City of Los Angeles,
provides:
"No person shall distribute any hand-bill in any place under any
circumstances, which does not have printed on the cover, or the face
thereof, the name and address of the following:
"(a) The person who printed, wrote, compiled or manufactured the
same.
"(b) The person who caused the same to be distributed; provided,
however, that in the case of a fictitious person or club, in addition
to such fictitious name, the true names and addresses of the owners,
managers or agents of the person sponsoring said hand-bill shall also
appear thereon."
The petitioner was arrested and tried in a Los Angeles Municipal
Court for violating this ordinance. It was stipulated that the
petitioner had distributed handbills in Los Angeles, and two of them
were presented in evidence. Each had printed on it the following:
National Consumers Mobilization,
Box 6533,
Los Angeles 55, Calif.
PLeasant 9-1576.
The handbills urged readers to help the organization carry on a
boycott against certain merchants and businessmen, whose names were
given, on the ground that, as one set of handbills said, they carried
products of "manufacturers who will not offer equal employment
opportunities to Negroes, Mexicans, and Orientals." There also
appeared a blank, which, if signed, would request enrollment of the
signer as a "member of National Consumers Mobilization," and which
was preceded by a statement that "I believe that every man should
have an equal opportunity for employment no matter what his race,
religion, or place of birth."
The Municipal Court held that the information printed on the
handbills did not meet the requirements of the ordinance, found the
petitioner guilty as charged, and fined him $ 10. The Appellate
Department of the Superior Court of the County of Los Angeles
affirmed the conviction, rejecting petitioner's contention, timely
made in both state courts, that the ordinance invaded his freedom of
speech and press in violation of the Fourteenth and First Amendments
to the Federal Constitution. n2 172 Cal. App. 2d Supp. 797, 332 P. 2d
447. Since this was the highest state court available to petitioner,
we granted certiorari to consider this constitutional contention.
360 U.S. 928.
In Lovell v. Griffin, 303 U.S. 444, we held void on its face an
ordinance that comprehensively forbade any distribution of literature
at any time or place in Griffin, Georgia, without a license.
Pamphlets and leaflets, it was pointed out, "have been historic
weapons in the defense of liberty" n3 and enforcement of the Griffin
ordinance "would restore the system of license and censorship in its
baldest form." Id., at 452. A year later we had before us four
ordinances each forbidding distribution of leaflets -- one in
Irvington, New Jersey, one in Los Angeles, California, one in
Milwaukee, Wisconsin, and one in Worcester, Massachusetts. Schneider
v. State, 308 U.S. 147. Efforts were made to distinguish these four
ordinances from the one held void in the Griffin case. The chief
grounds urged for distinction were that the four ordinances had been
passed to prevent either frauds, disorder, or littering, according to
the records in these cases, and another ground urged was that two of
the ordinances applied only to certain city areas. This Court
refused to uphold the four ordinances on those grounds pointing out
that there were other ways to accomplish these legitimate aims
without abridging freedom of speech and press. Frauds, street
littering and disorderly conduct could be denounced and punished as
offenses, the Court said. Several years later we followed the
Griffin and Schneider cases in striking down a Dallas, Texas,
ordinance which was applied to prohibit the dissemination of
information by the distribution of handbills. We said that although
a city could punish any person for conduct on the streets if he
violates a valid law, "one who is rightfully on a street . . .
carries with him there as elsewhere the constitutional right to
express his views in an orderly fashion . . . by handbills and
literature as well as by the spoken word." Jamison v. Texas, 318 U.S.
413, 416.
The broad ordinance now before us, barring distribution of "any
hand-bill in any place under any circumstances," n4 falls precisely
under the ban of our prior cases unless this ordinance is saved by
the qualification that handbills can be distributed if they have
printed on them the names and addresses of the persons who prepared,
distributed or sponsored them. For, as in Griffin, the ordinance
here is not limited to handbills whose content is "obscene or
offensive to public morals or that advocates unlawful conduct." n5
Counsel has urged that this ordinance is aimed at providing a way to
identify those responsible for fraud, false advertising and libel.
Yet the ordinance is in no manner so limited, nor have we been
referred to any legislative history indicating such a purpose.
Therefore we do not pass on the validity of an ordinance limited to
prevent these or any other supposed evils. This ordinance simply
bars all handbills under all circumstances anywhere that do not have
the names and addresses printed on them in the place the ordinance
requires.
There can be no doubt that such an identification requirement
would tend to restrict freedom to distribute information and thereby
freedom of expression. "Liberty of circulating is as essential to
that freedom as liberty of publishing; indeed, without the
circulation, the publication would be of little value." Lovell v.
Griffin, 303 U.S., at 452.
Anonymous pamphlets, leaflets, brochures and even books have
played an important role in the progress of mankind. 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 obnoxious press licensing law of England, which was also
enforced on the Colonies was due in part to the knowledge that
exposure of the names of printers, writers and distributors would
lessen the circulation of literature critical of the government. The
old seditious libel cases in England show the lengths to which
government had to go to find out who was responsible for books that
were obnoxious to the rulers. John Lilburne was whipped, pilloried
and fined for refusing to answer questions designed to get evidence
to convict him or someone else for the secret distribution of books
in England. Two Puritan Ministers, John Penry and John Udal, were
sentenced to death on charges that they were responsible for writing,
printing or publishing books. n6 Before the Revolutionary War
colonial patriots frequently had to conceal their authorship or
distribution of literature that easily could have brought down on
them prosecutions by English-controlled courts. Along about that
time the Letters of Junius were written and the identity of their
author is unknown to this day. n7 Even the Federalist Papers, written
in favor of the adoption of our Constitution, were published under
fictitious names. It is plain that anonymity has sometimes been
assumed for the most constructive purposes.
We have recently had occasion to hold in two cases that there are
times and circumstances when States may not compel members of groups
engaged in the dissemination of ideas to be publicly identified.
Bates v. Little Rock, 361 U.S. 516; N. A. A. C. P. v. Alabama, 357
U.S. 449, 462. The reason for those holdings was that identification
and fear of reprisal might deter perfectly peaceful discussions of
public matters of importance. This broad Los Angeles ordinance is
subject to the same infirmity. We hold that it, like the Griffin,
Georgia, ordinance, is void on its face.
The judgment of the Appellate Department of the Superior Court of
the State of California is reversed and the cause is remanded to it
for further proceedings not inconsistent with this opinion.
It is so ordered.
Footnotes
n1 Schneider v. State, 308 U.S. 147, 154. Cf. Lovell v. Griffin,
303 U.S. 444, 450.
n2 Petitioner also argues here that the ordinance both on its face
and as construed and applied "arbitrarily denies petitioner equal
protection of the laws in violation of the Due Process and Equal
Protection" Clauses of the Fourteenth Amendment. This argument is
based on the fact that the ordinance applies to handbills only, and
does not include within its proscription books, magazines and
newspapers. Our disposition of the case makes it unnecessary to
consider this contention.
n3 The Court's entire sentence was: "These [pamphlets and
leaflets] indeed have been historic weapons in the defense of
liberty, as the pamphlets of Thomas Paine and others in our own
history abundantly attest." It has been noted that some of Thomas
Paine's pamphlets were signed with pseudonyms. See Bleyer, Main
Currents in the History of American Journalism (1927), 90-93.
Illustrations of other anonymous and pseudonymous pamphlets and other
writings used to discuss important public questions can be found in
this same volume.
n4 Section 28.00 of the Los Angeles Municipal Code defines
"handbill" as follows: "'HAND-BILL' shall mean any hand-bill, dodger,
commercial advertising circular, folder, booklet, letter, card,
pamphlet, sheet, poster, sticker, banner, notice or other written,
printed or painted matter calculated to attract attention of the
public."
n5 Lovell v. Griffin, 303 U.S., at 451.
n6 Penry was executed and Udal died as a result of his
confinement. 1 Hallam, The Constitutional History of England (1855),
205-206, 232.
n7 In one of the letters written May 28, 1770, the author asked
the following question about the tea tax imposed on this country, a
question which he could hardly have asked but for his anonymity:
"What is it then, but an odious, unprofitable exertion of a
speculative right, and fixing a badge of slavery upon the Americans,
without service to their masters?" 2 Letters of Junius (1821) 39.
MR. JUSTICE HARLAN, concurring.
In judging the validity of municipal action affecting rights of
speech or association protected against invasion by the Fourteenth
Amendment, I do not believe that we can escape, as Mr. Justice
Roberts said in Schneider v. State, 308 U.S. 147, 161, "the delicate
and difficult task" of weighing "the circumstances" and appraising
"the substantiality of the reasons advanced in support of the
regulation of the free enjoyment of" speech. More recently we have
said that state action impinging on free speech and association will
not be sustained unless the governmental interest asserted to support
such impingement is compelling. See N. A. A. C. P. v. Alabama, 357
U.S. 449, 463, 464; Sweezy v. New Hampshire, 354 U.S. 234, 265
(concurring opinion); see also Bates v. Little Rock, 361 U.S. 516.
Here the State says that this ordinance is aimed at the prevention
of "fraud, deceit, false advertising, negligent use of words,
obscenity, and libel," in that it will aid in the detection of those
responsible for spreading material of that character. But the
ordinance is not so limited, and I think it will not do for the
State simply to say that the circulation of all anonymous handbills
must be suppressed in order to identify the distributors of those
that may be of an obnoxious character. In the absence of a more
substantial showing as to Los Angeles' actual experience with the
distribution of obnoxious handbills, * such a generality is for me
too remote to furnish a constitutionally acceptable justification for
the deterrent effect on free speech which this all-embracing
ordinance is likely to have.
On these grounds I concur in the judgment of the Court.
Footnotes:
* On the oral argument the City Attorney stated:
"We were able to find out that prior to 1931 an effort was made by
the local Chamber of Commerce, urging the City Council to do
something about these handbills and advertising matters which were
false and misleading -- had no names of sponsors. They were
particularly interested in the fictitious name. They said, 'Who are
these people that are distributing; who are advertising; doing things
of that sort?' The meager record that we were able to find indicates
that a request from the Council to the City Attorney as to their
legal opinion on this subject [sic]. The City Attorney wrote back
and formed the conclusion that distribution of handbills, pamphlets,
or other matters, without the name of the fictitious firm or officers
would be legal [sic]. Thereafter in the early part of 1932 an
ordinance was drafted, and submitted to the City Council, and
approved by them, which related to the original subject -- unlawful
for any person, firm or association to distribute in the city of Los
Angeles any advertisement or handbill -- or any other matter which
does not have the names of the sponsors of such literature."
MR. JUSTICE CLARK, whom MR. JUSTICE FRANKFURTER and MR. JUSTICE
WHITTAKER join, dissenting.
To me, Los Angeles' ordinance cannot be read as being void on its
face. Certainly a fair reading of it does not permit a conclusion
that it prohibits the distribution of handbills "of any kind at any
time, at any place, and in any manner," Lovell v. Griffin, 303 U.S.
444, 451 (1938), as the Court seems to conclude. In Griffin, the
ordinance completely prohibited the unlicensed distribution of any
handbills. As I read it, the ordinance here merely prohibits the
distribution of a handbill which does not carry the identification of
the name of the person who "printed, wrote, compiled . . .
manufactured [or] . . . caused" the distribution of it. There could
well be a compelling reason for such a requirement. The Court
implies as much when it observes that Los Angeles has not "referred
to any legislative history indicating" that the ordinance was adopted
for the purpose of preventing "fraud, false advertising and libel."
But even as to its legislative background there is pertinent
material which the Court overlooks. At oral argument, the City's
chief law enforcement officer stated that the ordinance was
originally suggested in 1931 by the Los Angeles Chamber of Commerce
in a complaint to the City Council urging it to "do something about
these handbills and advertising matters which were false and
misleading." Upon inquiry by the Council, he said, the matter was
referred to his office, and the Council was advised that such an
ordinance as the present one would be valid. He further stated that
this ordinance, relating to the original inquiry of the Chamber of
Commerce, was thereafter drafted and submitted to the Council. It
was adopted in 1932. In the face of this and the presumption of
validity that the ordinance enjoys, the Court nevertheless strikes it
down, stating that it "falls precisely under the ban of our prior
cases." This cannot follow, for in each of the three cases cited, the
ordinances either "forbade any distribution of literature . . .
without a license," Lovell v. Griffin, supra, or forbade, without
exception, any distribution of handbills on the streets, Jamison v.
Texas, 318 U.S. 413 (1943); or, as in Schneider v. State, 308 U.S.
147 (1939), which covered different ordinances in four cities, they
were either outright bans or prior restraints upon the distribution
of handbills. I, therefore, cannot see how the Court can conclude
that the Los Angeles ordinance here "falls precisely" under any of
these cases. On the contrary, to my mind, they neither control this
case nor are apposite to it. In fact, in Schneider, depended upon by
the Court, it was held, through Mr. Justice Roberts, that, "In every
case . . . where legislative abridgment of the rights is asserted,
the courts should be astute to examine the effect of the challenged
legislation . . . weigh the circumstances and . . . appraise the
substantiality of the reasons advanced . . . ." Id., at 161. The
Court here, however, makes no appraisal of the circumstances, or the
substantiality of the claims of the litigants, but strikes down the
ordinance as being "void on its face." I cannot be a party to using
such a device as an escape from the requirements of our cases, the
latest of which was handed down only last month. Bates v. Little
Rock, 361 U.S. 516. n1
Therefore, before passing upon the validity of the ordinance, I
would weigh the interests of the public in its enforcement against
the claimed right of Talley. The record is barren of any claim, much
less proof, that he will suffer any injury whatever by identifying
the handbill with his name. Unlike N. A. A. C. P. v. Alabama, 357
U.S. 449 (1958), which is relied upon, there is neither allegation
nor proof that Talley or any group sponsoring him would suffer
"economic reprisal, loss of employment, threat of physical coercion
[or] other manifestations of public hostility." Id., at 462. Talley
makes no showing whatever to support his contention that a restraint
upon his freedom of speech will result from the enforcement of the
ordinance. The existence of such a restraint is necessary before we
can strike the ordinance down.
But even if the State had this burden, which it does not, the
substantiality of Los Angeles' interest in the enforcement of the
ordinance sustains its validity. Its chief law enforcement officer
says that the enforcement of the ordinance prevents "fraud, deceit,
false advertising, negligent use of words, obscenity, and libel,"
and, as we have said, that such was its purpose. In the absence of
any showing to the contrary by Talley, this appears to me entirely
sufficient.
I stand second to none in supporting Talley's right of free speech
-- but not his freedom of anonymity. The Constitution says nothing
about freedom of anonymous speech. In fact, this Court has approved
laws requiring no less than Los Angeles' ordinance. I submit that
they control this case and require its approval under the attack made
here. First, Lewis Publishing Co. v. Morgan, 229 U.S. 288 (1913),
upheld an Act of Congress requiring any newspaper using the
second-class mails to publish the names of its editor, publisher,
owner, and stockholders. 39 U. S. C. @ 233. Second, in the Federal
Regulation of Lobbying Act, 2 U. S. C. @ 267, Congress requires those
engaged in lobbying to divulge their identities and give "a modicum
of information" to Congress. United States v. Harriss, 347 U.S. 612,
625 (1954). Third, the several States have corrupt practices acts
outlawing, inter alia, the distribution of anonymous publications
with reference to political candidates. n2 While these statutes are
leveled at political campaign and election practices, the underlying
ground sustaining their validity applies with equal force here.
No civil right has a greater claim to constitutional protection or
calls for more rigorous safeguarding than voting rights. In this
area the danger of coercion and reprisals -- economic and otherwise
-- is a matter of common knowledge. Yet these statutes, disallowing
anonymity in promoting one's views in election campaigns, have
expressed the overwhelming public policy of the Nation. Nevertheless
the Court is silent about this impressive authority relevant to the
disposition of this case.
All three of the types of statutes mentioned are designed to
prevent the same abuses -- libel, slander, false accusations, etc.
The fact that some of these statutes are aimed at elections,
lobbying, and the mails makes their restraint no more palatable, nor
the abuses they prevent less deleterious to the public interest, than
the present ordinance.
All that Los Angeles requires is that one who exercises his right
of free speech through writing or distributing handbills identify
himself just as does one who speaks from the platform. The ordinance
makes for the responsibility in writing that is present in public
utterance. When and if the application of such an ordinance in a
given case encroaches on First Amendment freedoms, then will be soon
enough to strike that application down. But no such restraint has
been shown here. After all, the public has some rights against which
the enforcement of freedom of speech would be "harsh and arbitrary in
itself." Kovacs v. Cooper, 336 U.S. 77, 88 (1949). We have upheld
complete proscription of uninvited door-to-door canvassing as an
invasion of privacy. Breard v. Alexandria, 341 U.S. 622 (1951). Is
this less restrictive than complete freedom of distribution --
regardless of content -- of a signed handbill? And commercial
handbills may be declared verboten, Valentine v. Chrestensen, 316
U.S. 52 (1942), regardless of content or identification. Is Talley's
anonymous handbill, designed to destroy the business of a commercial
establishment, passed out at its very front door, and attacking its
then lawful commercial practices, more comportable with First
Amendment freedoms? I think not. Before we may expect international
responsibility among nations, might not it be well to require
individual responsibility at home? Los Angeles' ordinance does no
more.
Contrary to petitioner's contention, the ordinance as applied does
not arbitrarily deprive him of equal protection of the law. He
complains that handbills are singled out, while other printed media
-- books, magazines, and newspapers -- remain unrestrained. However,
"the problem of legislative classification is a perennial one,
admitting of no doctrinaire definition. Evils in the same field may
be of different dimensions and proportions, requiring different
remedies. . . . Or the reform may take one step at a time,
addressing itself to the phase of the problem which seems most acute
to the legislative mind. . . . The prohibition of the Equal
Protection Clause goes no further than the invidious discrimination.
[I] cannot say that that point has been reached here." Williamson v.
Lee Optical Co., 348 U.S. 483, 489 (1955).
I dissent.
Footnotes
n1 "When it is shown that state action threatens significantly to
impinge upon constitutionally protected freedom it becomes the duty
of this Court to determine whether the action bears a reasonable
relationship to the achievement of the governmental purpose asserted
as its justification." 361 U.S., at 525.
n2 Thirty-six States have statutes prohibiting the anonymous
distribution of materials relating to elections. E. g.: Kan. Gen.
Stat., 1949, @ 25-1714; Minn. Stat. Ann. @ 211.08; Page's Ohio Rev.
Code Ann. @ 3599.09; Purdon's Pa. Stat. Ann., Title 25, @ 3546.
_________________________________________________________________________
David Banisar (Banisar@epic.org) * 202-544-9240 (tel)
Electronic Privacy Information Center * 202-547-5482 (fax)
666 Pennsylvania Ave, SE, Suite 301 * ftp/gopher/wais cpsr.org
Washington, DC 20003 * HTTP://epic.digicash.com/epic
Lenny Foner Last modified: Thu May 18 04:29:59 1995