Projo Politics Blog

In an interview late last week, ACLU Director Steven Brown said “people may have legitimate reasons for distributing a pamphlet or putting up a poster anonymously,” including fear of retaliation. He said members of the voting public have to decide for themselves how much they are willing to rely on anonymously provided information, but “to demand disclosure is to chill speech on important public issues.”

In his arguments to the Board of Elections and lawmakers, Brown also cited an April 1995 U.S. Supreme Court decision — McIntyre v. Ohio Elections Commission — that struck down that state’s law requiring the disclosure of personal identity on political literature.

Hailed by some over the years as “an important case for privacy and free-speech advocates,” the case centered on these facts: In 1988, Margaret McIntyre was fined after distributing pamphlets opposing a proposed school tax levy that were signed by “Concerned Parents and Taxpayers.” She was fined $100 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.

Briefly stated: The Supreme Court ruled that the law violated the First Amendment by inhibiting core political 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 wrote: “Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and dissent. Anonymity is a shield from the tyranny of the majority.”

In a letter to House Judiciary Committee Chairman Donald Lally, Brown said repeal of Rhode Island’s law “should thus be seen as merely a housekeeping measure designed to avoid the enforcement of clearly unconstitutional laws.”

But the dustup last week over the proposed repeal of Rhode Island’s political disclosure law sparked a flurry of behind-the-scenes legal activity at the State House.

Robert Kando, executive director of the state elections board, said he was informed the Ohio decision was specific to the very specific fact pattern in that case, and a decade later the Federal Elections Commission still has a clear disclaimer requirement for political communications and advertising.

So at this point, Kando said, “there is some question in my mind if the statute is unconstitutional or not.” What now? “It’s not what the board’s going to do,” he said. “It’s with the legislature right now. I believe they will review the case that we identified as making the repeal necessary. If they [still] feel the case law supports repealing it, I expect they’ll do that.”

--By Katherine Gregg, Cynthia Needham and Tatina Pina
Journal staff writers