Supreme Court Upholds Right To Distribute Anonymous Campaign Literature

Casting doubt on the election laws of nearly every state, the Supreme Court ruled Wednesday that the right to distribute anonymous campaign literature is protected by the constitutional guarantee of free speech.

The 7-to-2 decision clearly applies to pamphlets and leaflets of the sort that people distribute to express their own views on candidates and campaign issues. But its application to paid campaign advertising is less certain, and the court said it was expressing no view on disclosure requirements for radio and television advertising. Nonetheless, the ruling appears likely to prompt a new round of challenges to the disclosure requirements contained in federal and numerous state election laws.

“Anonymity is a shield from the tyranny of the majority,” Justice John Paul Stevens said in a majority opinion that canvassed the history of anonymous speech from Samuel Clemens’ use of the pen name Mark Twain back to the Federalist papers, a series of essays written anonymously by James Madison, Alexander Hamilton and John Jay and published in 1787 and 1788 to argue the case for ratifying the Constitution.

Wednesday’s decision declared unconstitutional an 80-year-old Ohio law that made it a crime to distribute any “political communication” designed to influence voters without including the name and address of the person responsible. Nearly all states have similar laws.

The Ohio law was challenged by a woman who was convicted and fined $100 for distributing anonymous leaflets in opposition to a local tax proposal.

Much of Stevens’ language was quite broad, leading Justice Antonin Scalia to predict in a dissenting opinion that “it may take decades to work out the shape of this newly expanded right-to-speak-incognito.” Chief Justice William H. Rehnquist joined in the dissent.