Supreme Court voices doubts on bans of anonymous political writings

October 13, 1994|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- "Publius" appeared to gain some modern friends on the Supreme Court yesterday, and that could mean trouble for laws in Maryland and other states that limit or ban anonymous political writings.

A figure out of America's political beginnings, the political propagandist "Publius" apparently would be a law-breaker in Ohio if he were still writing under that pen name today, the justices were told.

Responding to anonymous newspaper stories attacking the government that would be formed under the new U.S. Constitution, three of America's early leaders -- Alexander Hamilton, James Madison and John Jay -- wrote 85 essays -- the "Federalist Papers" -- to promote ratification of the Constitution. The essays were signed with no names, only "Publius."

Yesterday, the justices' sensitivity to the historic role of those documents provided a backdrop for a hearing on the constitutionality of an Ohio law that bans unsigned political writings -- similar to laws in at least two-thirds of the states.

Maryland is one of many states with laws controlling public disclosure by campaigners and their organizations, especially for political advertising. It is unclear whether a ruling against the Ohio ban on anonymous writings would reach widely and cut down other laws on political disclosure, including a series of federal campaign finance laws.

Questions by justices who could make up a majority of the court left the impression that they were leaning against laws as broad as Ohio's.

Ohio's law was violated six years ago, when Margaret McIntyre of the Columbus suburb of Westerville passed out leaflets opposing a referendum for new school-building funds. Mrs. McIntyre's leaflets urged a 'No' vote, declaring: "WASTE CAN NO LONGER BE TOLERATED." It was signed, "Concerned Parents and Tax Payers."

Convicted of violating the anonymous-leaflet ban, Mrs. McIntyre, who died earlier this year, was fined $100.

Several justices wondered what effect a decision against the Ohio law would have on federal laws requiring disclosure of the sources of political campaign donations and literature.

But the justices saved their toughest questioning for an assistant attorney general for Ohio, Andrew I. Sutter. Justice Sandra Day O'Connor tested Mr. Sutter early on. She began by asking whether the authors of the "Federalist Papers" would be forced to identify themselves under the Ohio law.

At first Mr. Sutter said no, but when Justice O'Connor pressed him, he replied: "If the 'Federalist Papers' were being circulated today, we would argue that the state had a compelling interest in requiring the speakers to place their names on the literature."

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