Justices void laws against anonymous political leaflets

April 20, 1995|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- With soaring rhetoric in praise of the political pamphleteer in American history, the Supreme Court cut back yesterday on the government's power to ban anonymous campaign literature.

The 7-2 decision settled one aspect of anonymous leafletting, saying the Constitution protects it when it is done by individuals in local elections. But the ruling left in doubt whether other forms of political literature that omit their source will get such protection.

If lower courts note the broad language used by the majority, and apply it literally, the ruling could threaten laws in all but one state and several federal laws, which require those who pass out campaign materials or advertise to identify themselves.

The justices themselves, however, disputed the scope of the ruling, and the majority put a number of limits on its decision.

Among the laws potentially affected is one in Maryland that requires "each item of campaign material" to identify who is responsible for it. That law applies to individuals as well as to candidates and campaign organizations.

Dissenting Justice Antonin Scalia predicted the ruling would scuttle many such laws. But, at a minimum, he said, more lawsuits will be needed to determine the scope of the ruling.

"It may take decades to work out the shape of this newly expanded right-to-speak incognito," Mr. Scalia wrote in a dissent joined by Chief Justice William H. Rehnquist.

The author of the majority opinion, Justice John Paul Stevens, included in the decision a series of qualifications that seemed to narrow its reach.

And Justice Ruth Bader Ginsburg, who voted with the majority, said in a separate opinion that the decision went no further than to protect "an individual leafletter" who handed out anonymous handbills about a local election.

Justices Stevens and Ginsburg stressed that governments would still be free to enforce their laws against election fraud -- including banning documents with false information or false identities.

And they emphasized that even some forced disclosure of identities might be allowed in "larger circumstances" than the activities of a solitary leafletter. That appeared to be a suggestion that political organizations might still have to identify themselves in their literature.

The decision said nothing about the constitutionality of laws requiring radio and television broadcasters to identify the sources of political messages they air.

One of the laws whose fate remains in doubt after the ruling is Maryland's ban on anonymous campaign literature.

The state Republican chairman, Joyce Lyons Terhes, predicted that "those who want to destroy a political career will follow through" to take advantage of the ruling.

Ultimately, she said, an open-ended opportunity to put out anonymous literature will discourage people from running for office.

The state Democratic chairman, Harry R. Hughes, said he would be surprised if the ruling were applied to allow anonymous political literature in candidate campaigns, as opposed to issue referendums.

But if it did, he said, that would be "revolutionary."

The exact impact of the ruling, Mr. Hughes added, "depends upon how broad it is." When the court issues a decision and even the justices disagree about its scope, "you don't know where it will stop" until new court challenges are resolved.

The court's decision emerged from a battle about whether Ohio could collect a $100 fine from the estate of Margaret McIntyre of Westerville, Ohio. She has since died, and her husband carried on the fight in the Supreme Court.

Mrs. McIntyre, opposing a school bond proposal, handed out an anonymous political leaflet outside a school in Westerville in 1988. Later, she was prosecuted for violating the state law banning all anonymous campaign literature.

Upholding the right of leafletters to keep their names off their campaign literature, Justice Stevens said that there is "a respected tradition of anonymity in the advocacy of political causes."

He noted that three major figures in early American history -- James Madison, Alexander Hamilton and John Jay -- did not sign their names to the Federalist Papers urging ratification of the Constitution.

A political activist, the court majority said, may have many reasons for remaining anonymous. The First Amendment generally protects his right to do so, the court said.

In a second decision protecting free-speech rights, the court unanimously struck down a 60-year-old federal law that barred breweries from listing on beer labels the amount of alcohol in the beer.

That law does not operate in states that require alcohol content to be included on labels. Nor does it ban advertising that mentions alcohol content. The labeling ban does not apply to wine and liquor.

Coors Brewing Co. challenged the constitutionality of the labeling ban, claiming that it kept brewers from giving consumers truthful information about the strength of the beer they were buying.

The court agreed, saying that, while the government had a valid interest in trying to keep brewers from engaging in promotional wars over the strength of beers, the "unique and puzzling" ban restricted to labeling would not achieve that goal.

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