McIntyre v. Ohio Elections Commission – Oral Argument – October 12, 1994

Media for McIntyre v. Ohio Elections Commission

Audio Transcription for Opinion Announcement – April 19, 1995 in McIntyre v. Ohio Elections Commission

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William H. Rehnquist:

We’ll hear argument next in Number 93-986, Joseph McIntyre v. the Ohio Elections Commission.

Mr. Goldberger.

David A. Goldberger:

Mr. Chief Justice and may it please the Court:

The issue in this case is whether the First Amendment permits the State of Ohio to criminalize petitioner’s anonymous leafleting in public places because they’re unsigned leaflets, urge members of her community to vote against a tax increase in a local referendum.

William H. Rehnquist:

You’re not saying that that’s why the leaflets were made punishable, because they urge somebody to vote a particular way.

David A. Goldberger:

It seems to me, Your Honor, that it’s the contention of the State of Ohio that anonymous political leaflets are unprotected when the leaflets address voters, so indeed it was a combination of the anonymity and the fact that the leaflets were addressed to voters in a coming election.

William H. Rehnquist:

Because… you say that’s the only place where the Ohio statute applies, is when the leaflets are addressed to voters?

David A. Goldberger:

According to the… it’s when they… they address voters on a referendum issue, or on an election, if that’s the thrust of the Court’s question.

These are not… it’s not an anonymous… a flat prohibition on all anonymous leafleting, it’s a flat prohibition on all anonymous election-related leafleting, and in specific, the holding of the court below addressed the portion of the statute which prohibited anonymous leafleting with respect to referenda.

The events leading to this case began on April 27th and 28th of 1988.

An open forum was held at the Westerville middle schools on both of those nights to discuss the merits of a tax levy which was on the May 3rd ballot.

The petitioner, Margaret McIntyre, distributed her leaflets to persons attending the meeting.

The leaflets were classic leaflets in the tradition of America street corner leafleters, were produced on her home computer, and duplicated at a local copy store.

They were critical, sharply critical of school officials, and urged readers to vote against the tax levy.

A school official, J. Michael Hayfield, saw them, approached her, said that they were unlawful because they did not contain her name, and she said she was allowed by law, she thought, to distribute the leaflets.

The tax levy was defeated a week later.

It was put on the ballot a few months later and defeated again, and a few months after that it went on the ballot and finally passed.

William H. Rehnquist:

Well, what sort of a town is Westerville?

What size?

Is it by itself, or is it a suburb?

David A. Goldberger:

Westerville is a suburb of Columbus, Ohio.

It’s… I don’t know the precise population, Your Honor, but I’d assume it’s 40,000 or 50,000 individuals.

It is not a tiny little borough in the rural areas of Ohio.

Sandra Day O’Connor:

Mr. Goldberger, had the flier of Ms. McIntyre related to a congressional election, and if it cost more than $250 to produce, there would have been certain Federal requirements, would there not, of disclosing the expenditure to the FEC and her identity in making an expenditure, and so forth?

David A. Goldberger:

Your Honor, under 441(d) of the Federal Election Campaign Act, there is a disclosure requirement with respect to expenditures to produce leaflets.

It does extend–

Sandra Day O’Connor:

Now, do you take the position that that kind of a requirement is valid?

There’s no First Amendment violation?

David A. Goldberger:

–No.

I believe, Your Honor, that a disclosure requirement on any leaflet, when the leaflet is constitutes core political speech or is pure speech, would violate the First Amendment.

Sandra Day O’Connor:

Well, that wasn’t my question.

I don’t think the Federal statute requires the disclosure on the leaflet.

David A. Goldberger:

I believe it–

Sandra Day O’Connor:

I think it requires furnishing information to the FEC that I have spent X amount of dollars in connection with a political campaign, and that identity is then a matter of record.

I suppose the public can learn who has made expenditures.

David A. Goldberger:

–Your Honor–

Sandra Day O’Connor:

It doesn’t have to appear on the leaflet.

Now, do you take the position that that violates the First Amendment?

David A. Goldberger:

–No, we do not, Your Honor, but I… with all due respect, I do believe 441(d) includes a requirement that the name appear on the face of the leaflet.

We do not believe that the expenditure disclosure requirements are by any means, when appropriately framed, unlawful or unconstitutional, but we–

Sandra Day O’Connor:

What about a requirement on a television ad that the identity of the people running the ad be shown?

David A. Goldberger:

–I believe that’s a different kind of a case, Your Honor, because television is a conduit for a great variety of communication, and there’s a potential for confusion when a viewer is watching television as to who’s saying what and under what circumstances.

In addition, television as a form of broadcasting is governed by the Federal Communications Act, and I believe is subject to a separate and distinct set of rules.

Anthony M. Kennedy:

So that we do have an interest in knowing who is the speaker?

David A. Goldberger:

You do have an interest in knowing a situation in which there may be confusion, because the speaker appears to be someone other than whom the speaker actually is, but that–

Anthony M. Kennedy:

Well, suppose Mrs. McIntyre had hired other people to put out the leaflets, might there not have been confusion there?

David A. Goldberger:

–Well, I don’t believe so, Your Honor, because the leaflets are… they speak for themselves.

When you watch television, you are hearing communications from a whole… a large number of people as you’re viewing the television screen, and in lots of situations, if you watch Saturday Night Live, for example, there’s a lot of confusion as to whether you’re watching an advertisement or whether you’re watching a comedy skit.

[Laughter]

William H. Rehnquist:

But your typical TV ad isn’t that way.

I mean, there’s no doubt for that 30 seconds you’re watching a commercial add for Joe Doe.

David A. Goldberger:

Well, it seems to me, Your Honor, under those circumstances, if there’s clarity as to who the vehicle is, I believe that there’s… there shouldn’t be an absolute necessity to place it on the screen.

But I would respectfully differ with the Court.

I do believe there’s likely to be confusion under those circumstances.

Moreover, you’re dealing with political advertisements which substantially exceed the cost of the campaign expenditure disclosure minimums.

William H. Rehnquist:

What if you just said on the television screen, vote no on the referendum for the Westerville middle school?

David A. Goldberger:

It seems to me that to the extent there’s an interest in anonymity and there’s no confusion as to who is speaking, in light of the fact that you have the television serving as the conduit, that is arguably constitutionally protected.

Anthony M. Kennedy:

Well, if the State showed that there were confusion as to who were handing out leaflets, would there then be a requirement of anon… of named persons?

David A. Goldberger:

It seems to me if you had a statute… well, you have statutes which deal with election fraud and misrepresentation.

We’re not really challenging those statutes here.

Anthony M. Kennedy:

Well, I’m positing an assumption where there are a lot of leaflets going around and somebody’s confused about who’s writing the leaflets.

David A. Goldberger:

I don’t believe that’s the business of the State, Your Honor.

Anthony M. Kennedy:

Well then, that’s not the answer to the question between, asking you to distinguish between television and pamphlets.

David A. Goldberger:

Well, that assumes that television is governed by the same set of ground rules that are applicable to pamphlets.

I believe because of the Federal Communications Act and the Red Lion decision, this Court has decided that there are separate sets of ground rules that are applicable.

David H. Souter:

What has spectrum scarcity got to do with this issue?

I mean, that’s the basic rationale for the distinction.

David A. Goldberger:

Well, Red Lion is not only a spectrum scarcity case, Your Honor, it’s also a case which deals with the problem of having a conduit of communication going into the home which… there is an immediate impact in which there is a potential for confusion.

David H. Souter:

Well, isn’t there an equal potential for confusion when I walk up to the polling place and I’m handed 6 or 8 or 10 or 12 leaflets saying, vote for this, that, or the other person or issue on the way up to vote?

David A. Goldberger:

Your Honor, I believe that the voters are capable of deciding for themselves.

They operate in a political climate–

David H. Souter:

You just did not see my puzzlement last September when I was on my way into the primary.

[Laughter]

Let’s be concrete about the Ohio statute.

It does say that any radio or television ad designed to influence the voters in an election must identify either the speaker or the financial sponsor.

Is that constitutional sometimes, always, never?

David A. Goldberger:

–In my view, Your Honor, it is constitutional in the context of broadcasting, because I believe broadcasting poses a separate question.

Ruth Bader Ginsburg:

That’s all it applies to, is radio and television advertising.

David A. Goldberger:

That’s correct.

Ruth Bader Ginsburg:

So you can, in any and all radio and television ads, the State legitimately can require identification of the speaker?

David A. Goldberger:

I believe that… I believe that’s true, but I think it’s important to keep in mind that these are not political ads.

The difference between a commercial ad, or a political advertisement on a television, is that it is paid for… paid for in sums that exceeds the expenditure disclosure minimums, and there is a very different kind of a State interest involved when large sums of money are involved in the election process.

Ruth Bader Ginsburg:

Well, Mr.–

–Well, then, if Ohio had a ceiling on the amount of money that… it said, Ms. McIntyre can do her flier as long as she’s not spending over $500 on it, that would be okay?

David A. Goldberger:

In a broadcast, or just on the flier?

No, I don’t–

Ruth Bader Ginsburg:

You said the thing was the spending of money, substantial amounts of money.

Suppose this very same statute, but it has a dollar limit under which you don’t have to disclose your name.

David A. Goldberger:

–That would track 441(d), Your Honor.

As we read 441(d), I believe that the appropriate disclosure is not on the face of the leaflet, but it is to the appropriate election commission.

David A. Goldberger:

However, because this Court has taken the position that expenditure disclosure requirements are appropriate under some circumstances, I think it’s a judgment call for the court as to whether or not it would also require disclosure on the face of the leaflet.

Sandra Day O’Connor:

Well, Mr. Goldberger–

David A. Goldberger:

I believe that should be unconstitutional.

Sandra Day O’Connor:

–the statute 441(d) does say that whenever a person makes an expenditure for the purpose of financing communications for an election, such communication shall clearly state the name of the person making it.

Now, if that… if it means what it says, and if we have upheld that statute generally in Buckley, where does that leave you?

David A. Goldberger:

Your Honor, 441(d) addresses the question of expenditures.

This is a question of pure speech.

This is not a disclosure requirement which addresses the question of expenditures.

Ohio’s laws say, all persons shall put their names on their leaflets.

It does not frame it in terms of people who will make expenditures, and–

Anthony M. Kennedy:

But this is less restrictive than an expenditure statute.

The statute Justice O’Connor is telling you about has two restrictions, (a) limitation of expenses, and (b) a disclosure.

David A. Goldberger:

–I–

Anthony M. Kennedy:

Are you saying that the State can do the greater and not the lesser.

David A. Goldberger:

–No, I… I’m not sure I understand the Court’s question.

Anthony M. Kennedy:

Well, you’re saying that you would assume… I interpreted this from your answer… that if there were an expenditure limitation, that a disclosure requirement might be valid.

David A. Goldberger:

Well, a disclosure requirement, I believe a disclosure requirement to the election commission would be appropriate.

I don’t believe such a disclosure requirement ought to be required on the face of the leaflet when the leaflet is pure speech and is completely protected.

Anthony M. Kennedy:

Do you think it’s constitutional to require that anytime anybody prints a leaflet they disclose that to an elections commission?

David A. Goldberger:

No, I believe that’s not so.

I believe that it is appropriate, or consistent with this Court’s decision in Buckley, however, that when someone expends a certain amount of money in excess of a threshold minimum, that they can be compelled to disclose the expenditure to the election commission.

William H. Rehnquist:

So the constitutionality of such a prohibition would depend on some minimum to be selected by the legislature?

David A. Goldberger:

No–

William H. Rehnquist:

Could the legislature suggest 25… choose $25?

David A. Goldberger:

–I believe, Your Honor, that the minimum has constitutional… has a constitutional element to the extent that it is a minimum which interferes with the ability of street corner leafleters to disseminate their views and to articulate their views, and for others that have a legitimate basis for remaining anonymous because of their fear of retaliation, the kind of retaliation which the justice below suggested might have existed in this case, that there is anonymity and that any threshold requirement has to leave room for that anonymity.

The State’s central arguments that… the Ohio… I beg your pardon.

The Ohio supreme court rested its decision on the fact that this case and this statute should be reviewed by a relaxed level of scrutiny.

It took the position that because 3599.09 is an election regulation, it is not… it not need be reviewed by the usual high level of scrutiny that this Court applies to First Amendment communications, and those communications that ordinarily occur in the election context.

It rejected Talley, in short, on grounds that petitioner’s leaflets addressed voters on discrimination, while Talley addressed passers-by.

Excuse me.

David A. Goldberger:

It rejected petitioner’s leaflets because it addressed voters in a referendum, while Talley addressed passers-by on the issue of race discrimination.

The Ohio supreme court was wrong.

3599.09 is invalid because it is not a regulation of the mechanics of the election process, it is a regulation of pure speech.

It interferes with the flow of speech to inform voters, it deters criticisms of public… it deters criticisms of public officials by those individuals who would prefer to remain anonymous because of a fear of potential retaliation.

It–

Ruth Bader Ginsburg:

What about the First Bank of Boston, the Bellotti case, where the Court said that that law was unconstitutional but a disclosure requirement would be okay?

Are you drawing a line between individuals like McIntyre and corporations?

David A. Goldberger:

–I believe that the Court should draw a line between individuals like McIntyre and corporations.

Ruth Bader Ginsburg:

What about rich individuals versus poor corporations?

David A. Goldberger:

It seems to me–

[Laughter]

It seems to me, Your Honor, that those matters can be handled through expenditure disclosure requirements.

This Court has sustained them in Buckley, and to the extent the Court treats them as valid requirements under the First Amendment, the rich speaker can be reached under the First amendment, and I might add, the State of Arizona has used precisely this approach.

It has repealed a statute much like 3599.09, and replaced it with an expenditure disclosure requirement and a disclosure requirement on the face of leaflets which is limited to political committees, and requires only the disclosure of the names of major donors to those political committees where the donor has contributed a very substantial sum of money.

As a consequence, and the sections, the relevant sections are cited in footnote 2 of the State’s brief–

William H. Rehnquist:

Under the Arizona statute, do you have to disclose the names of major donors on the leaflet itself?

David A. Goldberger:

–As I read the new statute, Your Honor, you disclose the name of one donor, the major donor, one or two donors who have contributed a substantial sum of money on the leaflet.

I’m not arguing that that’s a valid requirement.

What I am suggesting is that the State of Arizona has taken a step back from the flat ban of statutes like 3599.09.

William H. Rehnquist:

But you suggest it may not have been a useful step, if you–

David A. Goldberger:

Well, it seems to me–

William H. Rehnquist:

–it’s constitutional.

David A. Goldberger:

–I don’t have any difficulty in compelling the name of the political committee to be placed on the leaflet, and I also don’t have any difficulty with substantial contributors being compelled to disclose their expenditures and contributions to the Election Campaign Commission.

William H. Rehnquist:

Well, certainly some of our cases have said that organizations couldn’t be required to disclose the names of their members, the NAACP, for example.

David A. Goldberger:

That’s correct, Your Honor, and we rely on those cases, but I believe that the State statute in Ohio contains no exception whatsoever, and the difficulty with the statute is that it’s a flat ban on anonymous leafleting.

William H. Rehnquist:

Well, why can’t it be justified on the possibility of fraud, libel, slander, that obtains in that sort of thing, and that the identification permits that sort of action where it’s warranted?

David A. Goldberger:

Well, it seems to me, Your Honor, that the State has valid libel and fraud laws, and it can use those laws.

The diff–

William H. Rehnquist:

Well, but how can it use them if it doesn’t know who published the statement?

David A. Goldberger:

–Well, first of all, Your Honor, to quote the… well, first of all, to quote the State’s brief, prevaricators cannot be expected to point a beacon at their own lies.

David A. Goldberger:

Those who are engaged… and that’s page 18… and those who intend to defraud or lie in one way or another are hardly likely to deal with putting their… are hardly likely to put their names on the pamphlets.

William H. Rehnquist:

To prevaricate isn’t the only thing.

How about someone who libels?

David A. Goldberger:

Well, Your Honor, libel is unlikely in a referendum election, or at least the kind of libel that this Court should be… how do you… it is… I believe it’s impossible to libel a referendum, to the ex–

William H. Rehnquist:

What if you said the school superintendent has deliberately misrepresented the need for this budget bill?

David A. Goldberger:

–Well, I will say that I believe that sounds a great deal like political advocacy to me.

To the extent that libel is… he has a libel action, he can file his libel action.

These are matters that ought to be corrected in the–

William H. Rehnquist:

He can’t file it against an anonymous leafleter if he doesn’t know who wrote the leaflet.

David A. Goldberger:

–But he will find out, if necessary, by going to the… if a disclosure requirement is imposed, by going to the Election Campaign–

William H. Rehnquist:

But the State of Ohio hasn’t chosen a disclosure–

David A. Goldberger:

–No.

On the contrary, they’ve chosen a flat ban on all anonymous leaflets.

William H. Rehnquist:

–Well, and I’m saying, what’s wrong with it, because if the thing is libelous, the person who is libeled ought to know who it was so that he can have some recourse.

David A. Goldberger:

Your Honor, I will agree that there is a State interest in ferreting out individuals who have engaged in libel which affect the election process, but I don’t believe that the court can do it at the expense of individuals who are engaged in pure speech, who wish to remain anonymous, and who will otherwise not distribute their leaflets or make their political statements in political literature.

Ruth Bader Ginsburg:

In this case, she didn’t wish to remain anonymous.

Wasn’t the testimony that she meant to put her name on the leaflet?

David A. Goldberger:

That’s true.

She was… she stated that when she appeared pro se before the election commission.

However–

David H. Souter:

You never made a claim, I take it, that there was any such interest as was recognized in NAACP in Alabama.

Or Brown v. Social Workers.

The very identity of the person would leave that person exposed to danger.

David A. Goldberger:

–Well, going into this thing, it didn’t appear that that was the case, and her position was, before the commission, that she had attempted to comply with the statute, and it was basically a trap for the unwary.

But as events unfolded, the complaint against her wasn’t filed until a year after the leafleting actually occurred, and three election referenda later, when it finally passed.

At that point, the school officials who she had criticized initiated and pressed the proceedings against her.

She had, as a consequence she has a fine, or had a fine that still is a valid fine.

Moreover, she and every other resident of the village or City of Westerville are now on notice that when they take on school officials in these tax levy referenda, they do so knowing that the school officials are going to fight back, and very hard.

Ruth Bader Ginsburg:

Wouldn’t she have been in exactly the same position if she didn’t have to put her name on the leaflet, but she did have to register with the election commission so that mean school official that… could have found out her name that way?

David A. Goldberger:

Well, Your Honor, there are going to be… in my view, individuals who do not expend sufficient funds to make them legitimate targets of campaign expenditure laws should be left alone, and she would not have… making a leaflet on a home computer, duplicating at the local copy store would not have placed her within the reach of an appropriately drafted statute.

Anthony M. Kennedy:

So you would have no difficulty with a procedure where, if there were a libelous pamphlet, the attorney for the plaintiff could take the deposition of everybody who made a disclosure to the financing authorities and asked them, did you print this leaflet, what leaflets have you printed?

David A. Goldberger:

Well, it seems to me, Your Honor, when you have… if you have… now, we’re talking New York Times v. Sullivan libel, I assume, but to the extent that you have some kind of a criminal libel, you have law enforcement tools which are readily available with or without these kinds of statutes, and anyone can be asked by an appropriate law enforcement official who–

Anthony M. Kennedy:

Well, I’m not familiar with proceedings in which policemen help plaintiffs’ lawyers enforce civil libel actions.

David A. Goldberger:

–Oh, I see.

I misunderstood the question.

Anthony M. Kennedy:

And it seems to me that’s an even worse specter.

David A. Goldberger:

Well, Your Honor, I don’t believe it’s the function of the State election laws to help civil libel litigants.

The function of the State election laws–

Anthony M. Kennedy:

I thought you were justifying the answers to some of your questions and to some of these problems that we confront by saying that there are public disclosure requirements for many, many pamphlets.

David A. Goldberger:

–But the purpose of any public disclosure requirement, Your Honor, is to assist the State in making sure that there is not an election fraud which will affect the outcome of an election.

The purpose of those statutes is not to provide a civil action or facilitate a civil action by someone who has a complaint about the contents of an election leaflet.

I would like to reserve the rest of my time.

Stephen G. Breyer:

Can I ask a question?

The… think of the ordinary case, where I think you’d say yes, the State can in fact tell people that they can pay… spend, contribute no more than X amount, right.

We agreed that they can do that in certain circumstances.

David A. Goldberger:

Right.

Stephen G. Breyer:

Now, suppose the State has an enforcement mechanism, and I think this is a question that’s been asked before, but I… the enforcement mechanism says, you have to sign a paper, send it to the commission, and say you’ve spent no more than $10,000.

You agree they could do that.

And moreover, we want a list of everything you’ve spent the $10,000 on.

I take it you say they could do that.

David A. Goldberger:

I would prefer they couldn’t, but I think the Court has said that.

Stephen G. Breyer:

All right.

Yes, fine, and moreover, just to be sure, I don’t want you just to have the list mentioning it by general title.

I want you to attach, as Appendix 1, the actual leaflets that you’ve sent.

I take it you think they could do that.

And my question obviously, is, they can do all that, what’s the difference… I mean, I feel there is some difference, perhaps, but you–

David A. Goldberger:

Well, I don’t believe they can… I don’t think they can do that under circumstances in which the individual can legitimately claim a need for anonymity.

Stephen G. Breyer:

–Oh, so in other words, they could say,

“We want a list of all the $10,000 worth of stuff you spent it on. “

but they can’t say, “and attach the pamphlets”?

David A. Goldberger:

I believe… well, at that point we would be dealing with this Court’s holding in Brown v.–

Stephen G. Breyer:

But what’s the… what is the practical, that is the functional… what’s the reasoning by which it would make sense to say, you can in fact list all these things by name, you have to list, I spent the $10,000 on A, on B, on C, but the commission can’t say, and attach as appendix 1 the actual pamphlet so we know that you really did it?

David A. Goldberger:

–I believe, Your Honor, that is the problem that this Court faced in the disclosure requirements with respect to the unpopular political parties.

At a certain point, the State cannot constitutionally require it.

Stephen G. Breyer:

Because–

David A. Goldberger:

Because of the interest in anonymity, and to the extent that there is an interest, she must be left alone.

The difficulty–

David H. Souter:

–But you have not made an anonymity claim.

I mean, you told us that your client did not make any… I said NAACP… any Brown kind of claim.

David A. Goldberger:

–Yes, but we’re now… the questions that have been put to me, Your Honor–

David H. Souter:

No, but your answer, as I understood, your answer to that question is that the point of limit comes when the individual can assert that kind of a Brown anonymity claim, and you don’t assert it in this case.

David A. Goldberger:

–Your Honor, because the statute is a flat ban, the statute falls of its own weight.

We are… I am being put… questions are being put to me on a hypothetical statute which would be formed… framed and formed in the form of a disclosure, expenditure disclosure requirement, and that is a separate question.

David H. Souter:

So you’re saying that in this case… let’s take this case, that if there were an identification requirement, but the law provided in any case in which an individual can make a specialized showing of danger from disclosure, some State official can excuse the individual from compliance, that that would be a constitutional statute?

David A. Goldberger:

Your Honor, to the extent that Buckley v. Valeo allows expenditure disclosures, it would seem to me that to the extent that the State is trying to learn about expenditure disclosure and… expenditures in election, and not trying to regulate the content of protected leaflets, yes, it would be a valid requirement, to the–

David H. Souter:

Well, would that be the proper inference from the statute that I just described to you, that the State’s motives were benign, not malign?

David A. Goldberger:

–Well, if it’s not benign, I don’t understand why they’re asking for the information, why they need the information.

David H. Souter:

No, but in the case of my hypothetical, in which the statute contains the circuit breaker, would you infer by virtue of the circuit breaker’s existence that the State’s interest was a constitutionally cognizable one?

David A. Goldberger:

I believe so in candidate elections.

I have my doubts, sir, in referendum elections, because of the fact that you cannot libel a referendum.

William H. Rehnquist:

Thank you, Mr. Goldberger.

Mr. Sutter, we’ll hear from you.

Andrew Ian Sutter:

Mr. Chief Justice, and may it please the Court:

I think the Court’s dialogue with Mr. Goldberger demonstrates just how much this case is controlled by Bellotti and Buckley.

In Bellotti, we have footnote 32, which specifically states, in the heart of a case in which campaign contributions, or a limitation on campaign contributions was struck down, that the effective vehicle in these instances is a disclosure statute, one where the advertiser, the person circulating the handbill or making the television advertisement, discloses his or her identity.

There’s no distinction between those circumstances and these.

In fact, Bellotti was–

Ruth Bader Ginsburg:

–distinction between big spenders and little spenders?

If you take the campaign act as a model, even if the limits are pretty low, there are limits.

You go below those limits, you don’t have to disclose.

Andrew Ian Sutter:

–Justice Ginsburg, in Buckley, the Court recognized how low the thresholds really were before someone had to report, but the Court said in that case that that was a legislative call.

In Bellotti, the whole–

Ruth Bader Ginsburg:

Where to draw the line, not–

Andrew Ian Sutter:

–Where to draw the line.

Ruth Bader Ginsburg:

–Did the Court say there didn’t have to be any line, so that people who don’t spend any money still have to report?

Andrew Ian Sutter:

Well, Your Honor, in Bellotti the Court decided that there was no distinction, especially in the context of ballot measure elections, between corporations and individuals, that their First Amendment rights were coextensive, so I don’t understand how there could be a principled basis upon which one could require a corporation to disclose just because they were better heeled and might be able to communicate more effectively.

Ruth Bader Ginsburg:

My distinction wasn’t in terms of the character of the identity, but of… does there need to be some point below which, if you’re not… if the concern is big spending, mustn’t you have some limit to leave out the little people like Ms. McIntyre?

Andrew Ian Sutter:

No, Your Honor, because the only concern before the Court in Buckley was not just campaign contributions and expenditures, some sort of threshold to distinguish big money from small money, the Court specifically recognized, as a distinct and independent compelling interest, the disclosure of information that was important to the electorate to help them evaluate candidates.

In this case… and in that instance, it was the associates of the candidate.

In the case at bar, this State statute does the same thing in the context of a referendum.

It identifies the person who is circulating literature opposing or promoting a ballot issue, and it provides the name of that person as information to the electorate, and I contend there’s no distinction between that interest in a ballot measure election and the interest of disclosing the associations of a candidate in a candidate election.

Sandra Day O’Connor:

What interest do you want to rely on here to support the State’s ban?

Andrew Ian Sutter:

Your Honor, there are two.

One is the deterrence of fraud, and the other is–

Sandra Day O’Connor:

Are there other statutes in Ohio that deal with fraud and that could be used to prosecute someone who put out a fraudulent campaign paper?

Andrew Ian Sutter:

–Yes, there are, Your Honor, but these circumstances are very similar to Buckley, for example, where the Court recognized the existence of bribery statutes.

Certainly, bribery statutes could have been enough to defeat, or was a minimum restriction on speech that could have been utilized to deter campaign candidate corruption, but nevertheless, the Court still upheld disclosure.

In Burson, the Court recognized in Tennessee that there were voter intimidation laws on the books that could have been utilized to deter the same sort of evil conduct that the Court was trying to deter in Burson, but nevertheless upheld the campaign free zone.

Sandra Day O’Connor:

I mean, I guess you’d say that Ohio could require, had we been back in those days, the disclosure of the writers of all of the Federalist Papers.

Andrew Ian Sutter:

No, Your Honor.

We think this is a much more limited statute that addresses only campaign literature or broadcast media.

Sandra Day O’Connor:

Well, they were circulated in support of a referendum on whether the Constitution should be adopted or ratified.

You would say it would have been perfectly okay to require disclosure.

Andrew Ian Sutter:

Your Honor, the circumstances then were somewhat different.

We think that the protections of the First Amendment make a difference, but if today the Federalist Papers were being circulated, we would argue that the State had a compelling interest in requiring the speakers to place their name on the literature.

There would be no difference, and that is our point here.

There is no principled way to distinguish different types of campaign literature, distinguishing the well heeled, or those who are capable of communicating more effectively, with those who do so on a smaller level.

This Court has recognized that there’s really… there’s no justification for treating or restricting the rights of groups, for example, to the advantage of individuals.

In Berkeley, in Bellotti, the Court recognized that there are First Amendment rights associated with groups being able to go over and… go out and speak together, and that there was no distinction made there.

There wasn’t a tier of protected rights established so that groups or effective speakers would be able… that the State would place more restrictions on their speech than on individuals.

Anthony M. Kennedy:

Your interests are the deterrence of fraud and informing the electorate?

Those are your two interests?

Andrew Ian Sutter:

Yes, Your Honor.

We think that this statute serves a parallel interest as the statute in Buckley, where the Court said that information important to the voter, information that enables the voter to place a candidate in the political spectrum–

Anthony M. Kennedy:

How about Mrs. McIntyre’s address?

Should that have been on?

Wouldn’t that have helped inform the electorate?

Andrew Ian Sutter:

–Yes, Your Honor, and that’s required by the law.

Anthony M. Kennedy:

All right, and how about her partisan affiliation?

Andrew Ian Sutter:

Your Honor, we think there is a point at which too much information would cross the line.

Anthony M. Kennedy:

The public gets confused by too much information.

Andrew Ian Sutter:

No, Your Honor–

[Laughter]

–but we are not ignoring or denying that there’s an interest in political speech here.

certainly the State couldn’t require Margaret McIntyre to fill up the literature to the point that it eliminated room for her message.

What we are saying here is that all this statute does is, it makes a minimum amount… it requires a minimum amount of disclosure, enough to identify the speaker.

One of the points that came up during the course of Mr. Goldberger’s argument is that this type of law is actually less intrusive of First Amendment rights than campaign finance laws are, and we would submit, especially for someone like Margaret McIntyre.

In our instance, the person puts their name and address on the page of their advertisement, they mass produce it, they distribute it, they never come in contact with the Government, there are no burdensome filing requirements.

In the Buckley case–

Sandra Day O’Connor:

Well, Mr. Sutter, I would have thought if the First Amendment stood for anything at all, it stood for my right to put out a flier at a local school board election on an issue that I cared about without identifying myself.

I mean, it just… I think it’s quite remarkable to say that Ohio can just totally ban this.

I mean, what does the First Amendment protect if not that kind of core political speech?

Andrew Ian Sutter:

–Your Honor, the State would acknowledge that there’s core political speech involved here, but there’s a difference, we think, between the ability to deliver–

Sandra Day O’Connor:

But what kind of test do we employ?

Is it strict scrutiny?

Andrew Ian Sutter:

–Your Honor, the court below–

Sandra Day O’Connor:

And do you think the court below applied strict scrutiny?

Andrew Ian Sutter:

–No, Your Honor, the court did not apply strict scrutiny, but under the circumstances, we believe, regardless of what test the court applies, whether it be the flexible standard under Anderson v. Celebrezze, or strict scrutiny, this statute passes constitutional muster because it serves compelling interests.

Anthony M. Kennedy:

Well, do you think it’s appropriate to apply a flexible standard to core political speech?

Andrew Ian Sutter:

Your Honor, I think when there’s a competing interest of equal importance, as there is in this case, protecting the right to vote, that a flexible approach has appeal in that it permits the court to measure the amount of intrusion against the interest of the State, but under the circumstances, the court never has to reach that question, because we believe that the statute involves serves compelling State interests, and addressing–

Ruth Bader Ginsburg:

Do you–

Andrew Ian Sutter:

–Yes, Your Honor.

Ruth Bader Ginsburg:

–recognize that to be compatible with the First Amendment there would at least have to be an exception for the Socialist Worker Party kind of case, where the person said, if I put my name… if I put my name on this piece of literature, I may be subject to assault, or some danger?

Andrew Ian Sutter:

Your Honor, that really goes to an overbreadth question, and we do believe–

Ruth Bader Ginsburg:

Well, suppose Ms. McIntyre, instead of saying,

“Here I am, I want my neighbors to know what I think. “

had said,

“I want to get across this message, but I’m going to be in grave danger if I am so bold as to oppose this powerful principal, or superintendent of the school district. “

–suppose that were her position.

Andrew Ian Sutter:

–Your Honor, we think that the Ohio courts would construe the statute in constitutional fashion, just as this Court did in the Buckley case.

Ruth Bader Ginsburg:

Does there have to be an exception of that type?

Andrew Ian Sutter:

We think that that would be appropriate.

We don’t think it’s fatal–

Ruth Bader Ginsburg:

Necessary.

Appropriate is not what we decide.

Would it be necessary?

Andrew Ian Sutter:

–We would concede even necessary, but we don’t think it’s fatal to the constitutionality of the statute that it’s silent on the subject, any more than it was fatal to the statute in Buckley.

We think that that’s a question, when the facts present themselves, that the Ohio courts will deal with appropriately, that they will give it the appropriate constitutional construction, but here, there is no evidence of retaliation.

There is no evidence of fear.

Mrs. McIntyre testified at the Ohio Elections Commission hearing that some of the leaflets that she circulated indeed contained her name and address, that she had intended to include them in all of her brochures, on all her leaflets, so this does not raise the specter of legitimate fear of retaliation.

The similarities between… yes, Your Honor.

Anthony M. Kennedy:

So if someone feared retaliation and wanted to keep anonymity, they’d go to a court and file a lawsuit?

I assume the official on the other side should have some opportunity to be heard.

Andrew Ian Sutter:

Your Honor, I think there would be an opportunity for something like a Jane Doe lawsuit, but I don’t think this is so different–

Anthony M. Kennedy:

Sounds to me like that would deter at least a rather shy person.

Andrew Ian Sutter:

–Your Honor–

[Laughter]

I think the Court… I can’t stand here and argue to the Court that there aren’t prospects or possibilities for deterrence of speech, for chilling of speech, but that was exactly the circumstances in Buckley.

The Court recognized that the campaign finance disclosure requirements could chill speech, but the Court hesitated in striking down the statute on the prospect, the speculation of potential harm, and instead decided that on a case-by-case basis, where there would be an opportunity to demonstrate harm, that that would render the statute not applicable to those particular circumstances, and all we are asking is for the same sort of discretion to be extended to the State courts.

We think there’s very little difference between the Buckley circumstances.

Andrew Ian Sutter:

The parallels are remarkable, and I think that the Court has identified through the course of this argument some of the dangers to existing statutory law if the petitioner’s side prevails.

Ruth Bader Ginsburg:

Mr. Sutter–

Andrew Ian Sutter:

Yes, Your Honor.

Ruth Bader Ginsburg:

–Justice O’Connor brought up the tradition of pamphleteering, going back to the Federalist Papers.

I was thinking of a case that we had last term, the City of Ladue case.

Andrew Ian Sutter:

Yes, Your Honor.

Ruth Bader Ginsburg:

About, it was traditional, accepted that you could have unobtrusive signs on your own property.

Isn’t there the same kind of venerable tradition attached to the lone leafleter in this country?

Andrew Ian Sutter:

I think there is a tradition.

I think the aspect of anonymity changes the perspective of the case.

We’re not saying, and didn’t say to Margaret McIntyre, that she couldn’t speak, that she couldn’t hand out literature, that she couldn’t say whatever she wanted in that literature.

All we’re saying is, because of the countervailing State interest in protecting the electoral process, that we may… that the State may require her to provide the public with access to a limited amount of pertinent information to help them make better educated electoral choices, and I think that under the circumstances where you have these competing interests, that the Court has recognized in the past that occasionally First Amendment core speech has to yield to this greater interest, especially whereas here, it is a minimal intrusion.

David H. Souter:

Well, your argument, basically I guess you make two arguments.

One is that you will either deter fraud, or you’ll make it easier to detect and prosecute fraud, and you will allow voters to evaluate what is said on the kind of the theory of, from whence it comes.

What do you say about the argument that somebody who really wants to thwart those interests is simply not only going to lie once but lie twice, and put down the wrong name and address?

Andrew Ian Sutter:

Well, Your Honor, we can’t completely control the conduct of anyone under these circumstances.

David H. Souter:

No, but is there reason to believe that this is going to be effective in the cases that you posit?

Andrew Ian Sutter:

Yes, we do, and it’s been followed on a regular basis.

I mean, there’s very robust political activity in Ohio, and this disclaimer has, this attribution requirement has been placed on literature.

I don’t think the State can determine what it’s going to try to deter, or how it’s going to regulate, based on those who would try to evade the law, otherwise that would be true of almost any criminal or civil enforcement statute.

David H. Souter:

No, but the State’s interest has to be evaluated in a realistic fashion, and I guess you’re telling me you have found no instances, there are no instances on the record or disclosed in any of the amicus briefs here, in which that kind of double fraud has been perpetrated, and therefore has rendered the State’s interest one of hope, rather than of realistic expectation.

Andrew Ian Sutter:

There’s nothing in this record to demonstrate that.

I suppose it could happen, but I don’t think that would be sufficient to invalidate the scope of the law.

The State can’t regulate under those circumstances, if they’re going to be concerned about who will try to evade it.

And this statute here… another similarity that I’d like to point out with the Buckley case is that in Buckley the Court struck down limitations on expenditures, identifying that as intruding on core political speech, but it retained… it validated the disclosure requirement, and that’s the same sort of statute that we have here.

If one looks at Buckley and Bellotti, especially at the Bellotti footnote, that authorizes this kind of attribution, it links Buckley and Bellotti.

It cites Buckley for the same proposition that the State is citing it for today, and that has two important characteristics.

One is that Buckley addressed not just groups but individuals, and it links them in a way that they are both disclosure statutes, that they are both constitutional.

I think the Court asked before whether we could require Mrs. McIntyre and others to file with the Ohio Elections Commission.

Well, we think we could, but we have chosen a different vehicle that we think is less intrusive.

Stephen G. Breyer:

Do you want to say anything more about the strength of the State’s interest in requiring this?

In my mind at the moment you’re saying well, there are really three, basically.

One is the… we don’t want them to lie, and we want to know who’s lying, so that assumes that the person who sends out a pamphlet lying is going to tell the truth about who’s doing it.

That strikes me as a little weak.

The second is that, well it will help us enforce the disclosure laws, but you can get quite far enforcing those disclosure laws, I take it, by simply requiring people to stick within a list and listing their expenditures in some way or other.

If so, does that leave you with the thing, well, a group of people, namely the voters of the State of Ohio, say, we want to know who’s putting out this leaflet, and the person who’s putting it out says, well, I don’t want to tell you, and if that’s the conflict, doesn’t the First Amendment require us to come down in favor of the individual?

I’m putting that purposely, because I want to get your responses to… what I’ve done is try to minimize the strength, and you’ll try to maximize it.

Andrew Ian Sutter:

All right.

I’ll do my best, Your Honor.

[Laughter]

I’ll start backwards, if I may.

First, I think the Court has articulated the interest that was recognized in Buckley that there was an independent justification for upholding the disclosure laws, and that was to provide information to the electorate, important information to help them evaluate the candidates.

And I think it’s striking in the context of Buckley that the Court not only required disclosure of identity, but disclosure of associations, a much more severe restriction and disclosure requirement than just placing your own name and address on your literature, so we think that this regulation is even less demanding and less intrusive of First Amendment rights.

Then the campaign finance requirements of Buckley–

Antonin Scalia:

Mr. Sutter, what’s the pedigree of provisions like this?

I gather they didn’t have any in 1787.

When’s the first one that you know about?

Andrew Ian Sutter:

–Your Honor, I believe that these laws started to appear in the early portion of the 20th Century, around 1910, 1915, at the same time that other types of campaign reform was underway, as the Court noted in Burson, with the Australian ballot procedure, and these particular statutes have extended on through the years.

That’s where they began as part of an effort to… an election campaign reform.

Antonin Scalia:

And they go back that far.

Andrew Ian Sutter:

Yes, Your Honor.

Some statutes in 1912, the… there is a case discussing the Ohio statute, the predecessor to the Ohio statute, as early as 1922, but the statute was in existence for years before that, and that’s, I think, a good point, is that this is all part of the same reform movement in electoral politics.

The Court recognized in Buckley that the disclosure requirement was part of Congress’ effort at total disclosure.

John Paul Stevens:

Do you think the disclosure requirement in Buckley was intended to help the voter evaluate the message that was being paid for by the political organization?

Andrew Ian Sutter:

Yes, Your Honor.

That’s explicit in Buckley.

The Buckley… the Buckley court identified three compelling interests, each of which would justify the law, and one of them was to help evaluate the candidate’s position by placing him in the political spectrum.

And how did they do that?

How do campaign finance laws do that?

They do that by requiring the candidate to reveal not just his name, and his address, and the way he or she may have spent money, but in terms of parties–

John Paul Stevens:

Where he gets the money, yes.

Andrew Ian Sutter:

–His associations.

That’s a far more–

Ruth Bader Ginsburg:

But didn’t Buckley focus on candidates, support of candidates as distinguished from issues?

Indeed, didn’t the Court say in Buckley that there would be concern if the provision were interpreted to reach groups, instead of candidate-supporting groups, groups engaged purely in issue discussions?

Andrew Ian Sutter:

–Your Honor, the Court did say that, but in the context of Buckley, the first answer is that there are no referenda or initiatives, actual issues that go on the ballot, in Federal law.

The other answer is, and the one that I think gets directly to the point, is that I think what the Court was talking about there, and why they narrowed the statute to express advocacy, is something that this statute doesn’t regulate, which is the general discussion of political events in society.

This statute doesn’t reach beyond campaign literature, and I think that’s what the Court was concerned about in Buckley.

They were concerned that… unless I get attacked here… they were concerned by this whole notion of it spreading beyond campaign literature to just general discussion.

That’s why, in the normal course of events, the Federalist Papers as they actually appeared, as they actually were utilized, wouldn’t have been affected by this law, because it was not in the context of a popular election.

John Paul Stevens:

No, but it was surely was to support or defeat an issue of some importance.

Andrew Ian Sutter:

Yes, Your Honor, but it was not designed–

John Paul Stevens:

And that’s what your statute pertains to.

Andrew Ian Sutter:

–Your Honor, what this statute pertains to, it’s not attempting to control public discussion of public policy or foreign affairs.

John Paul Stevens:

To promote the adoption or defeat of any issue.

Andrew Ian Sutter:

Yes, Your Honor.

In Ohio, an issue is what appears on the ballot.

It is the actual question that the electorate goes to the polls to address.

It is in the context of a popular election.

The whole statutory scheme is directed toward campaign activity.

It is an election law.

Now, it may regulate political speech, but it’s still an election law… it only comes up in that context… just as provisions against trying to bribe an electorate or an election official is a campaign election law.

We don’t think there has been a principled justification articulated either by Mr. Goldberger today, or in petitioner’s brief, that would distinguish the Buckley situation and the Bellotti situation from the case at bar, and if the Court has no further questions, I’ll–

John Paul Stevens:

Of course, the Bellotti situation, it was just a footnote comment.

It wasn’t any part of the holding.

Andrew Ian Sutter:

–Your Honor, but it follows… in every single one of the Court’s decisions limiting campaign contributions and expenditures to one extent or another, the Court makes a point–

John Paul Stevens:

Bellotti is not one of those cases.

Andrew Ian Sutter:

–But the Court makes a point… in Buckley, in Bellotti, in Citizens Against Rent Control v. Berkeley, the Court makes a point of indicating that disclosure requirements are the least intrusive method for regulating lections in this way.

They mention it time… the Court mentions it time and time again, as if it’s a running theme that disclosure… a message to the public, to the, as you might, the legislatures of all the States, saying that disclosure is appropriate, and that’s what Ohio has chosen to do here.

We can’t serve these compelling interests, I don’t think, serve them both in the same statute, any more narrowly.

Andrew Ian Sutter:

All we’re asking for here is a minimal amount of additional information so that the electorate can evaluate the campaign message.

Sandra Day O’Connor:

You know, in this context, though, it almost seems that on… when the leaflet speaks to the merits of a particular issue, as this does, that the electorate can take into consideration the fact that there is no identification of the speaker attached to the message and can conclude, if it wishes, that therefore it should be discounted.

I’m not sure how strong the State’s interest is in forcing the information on the electorate.

I mean, as a voter, I can say, well, here’s an anonymous flier, and if they don’t care enough to put their name on it, I’m going to toss it in the waste basket.

I don’t see why the State’s interest is so strong.

Andrew Ian Sutter:

Your Honor, I think that is a difficult question, and one that the legislature wrestled with, and I think this Court in a way wrestled with it in Buckley.

I mean, the circumstances were the same.

If one eliminates from the Buckley scenario the limitations on campaign expenditures, or the limitation on campaign contributions, that there still remains this independent compelling State interest of disclosure of information.

Antonin Scalia:

Mr. Sutter, we’re entitled to assume, aren’t we, that the people of Ohio like this law?

Andrew Ian Sutter:

Can we assume–

Antonin Scalia:

Yes.

Andrew Ian Sutter:

–Yes, Your Honor.

The General Assembly–

Antonin Scalia:

I mean, it’s their legislature that adopted it.

Andrew Ian Sutter:

–Yes, and there hasn’t been any–

Antonin Scalia:

So I mean, in the normal course of events, I guess most people in Ohio like this.

Andrew Ian Sutter:

–Your Honor, there haven’t been any initiatives or referenda on the ballot to repeal it.

Antonin Scalia:

And presumably would rather know who is putting out these pamphlets than not know.

Andrew Ian Sutter:

I think that’s correct, and that reflects–

Ruth Bader Ginsburg:

–most people in Ohio don’t know a thing about the existence of this law?

[Laughter]

Andrew Ian Sutter:

–Your Honor, I wouldn’t want to speculate either way, but I would say that the vast majority of legislators in the Congress think that this is important legislation.

They think that it outweighs any interest in anonymity because it doesn’t affect the person’s right to speak, and I think, Your Honor, Justice O’Connor, that here the State perhaps could have decided not to do this, but that doesn’t minimize the interest.

The State still had the interest in providing this sort of limited information to help voters evaluate ballot issues.

There’s really no difference.

I mean, ballot issues affect the electorate’s life as much as legislative decisions by the legislature.

Thank you.

Stephen G. Breyer:

That’s why.

Why?

That was my question before, and I wrote down the answer… Buckley.

Andrew Ian Sutter:

Buckley.

Stephen G. Breyer:

Yes, I got that answer.

I want to know if there’s anything more than that.

That is to say, if you have the voters of the State of Ohio who say, we really would like to know who is putting this out, and you have a person who says, I really don’t want to tell you.

All right, now, why is it that the Constitution comes down on the side of the voters of Ohio, given the First Amendment?

Andrew Ian Sutter:

Your Honor, the First Amendment protects speech, but it doesn’t necessarily say that the State can never regulate anonymous speech.

Stephen G. Breyer:

So in other words, if the person… you could have a law which says, if, by the way, you put an argument in an election campaign, you must legally put the counterargument.

That might be a very nice law, but I mean, is that con… he says, I don’t want to tell you the arguments against my position–

Andrew Ian Sutter:

Your Honor, I think that’s the Tornillo case.

Stephen G. Breyer:

–I just want to tell you the ones for it.

Andrew Ian Sutter:

I think that’s the Tornillo case, but these statutes, that sort of scenario is drastically different.

We’re not trying to control the content.

We’re not trying to make someone say,

“I have my position, and now I’m going to articulate my opponent’s. “

All I’m asking for is that you identify yourself and then say whatever you want.

If Margaret McIntyre had observed the law here, she never would have found herself before the Ohio Elections Commission.

It was not… it was not that she had disclosed her identity, it was her failure to disclose her identity.

Anthony M. Kennedy:

That’s true of most of the cases that we get here.

[Laughter]

Andrew Ian Sutter:

Your Honor, but it does go to this whole question of retaliation, and it goes to this whole question of what the real intrusion was as far as First Amendment speech is concerned.

Thank you.

William H. Rehnquist:

Thank you, Mr. Goldberger.

The case is submitted.

The honorable court is now adjourned until Monday next at ten o’clock.