A&A: Banning Anonymous Flyers

Banning Anonymous Flyers

Q: The city council is being held under scrutiny for conflicts of interest and corruption by its citizens. 2 city councilmembers are up for re-election in Nov’08. City is now (4-22-08) trying to pass an ordinance that will ban anonymous flyers, and stifle any compitition to current incumbants.

A: The Supreme Court has held that anonymous speech is protected by the First Amendment because, among other things, “[a]nonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind.”  Talley v. California, 362 U.S. 60, 64 (1960).  In Talley, the Supreme Court held that the First Amendment protects the distribution of unsigned handbills urging readers to boycott certain Los Angeles merchants who were allegedly engaging in discriminatory employment practices.

ApplyingTalley, the Supreme Court more recently struck down an Ohio statute that made it illegal to advocate the “election or defeat of a candidate, or to promote the adoption or defeat of any issue, or to influence the voters in any election, or make an expenditure for the purpose of financing political communications through newspapers, magazines, outdoor advertising facilities, direct mailings, or other similar types of general public political advertising, or through flyers, handbills, or other nonperiodical printed matter, unless there appears on such form of publication in a conspicuous place or is contained within said statement the name and residence or business address of the chairman, treasurer, or secretary of the organization issuing the same, or the person who issues, makes, or is responsible therefor.”   McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995).  As the Court said:

“Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority. See generally J. S. Mill, On Liberty, in On Liberty and Considerations on Representative Government 1, 3-4 (R. McCallum ed. 1947). It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment  in particular: to protect unpopular individuals from retaliation–and their ideas from suppression–at the hand of an intolerant society. The right to remain anonymous may be abused when it shields fraudulent conduct. But political speech by its nature will sometimes have unpalatable consequences, and, in general, our society accords greater weight to the value of free speech than to the dangers of its misuse. SeeAbrams v.United States, 250 U.S. 616, 630-31 (1919) (Holmes, J., dissenting). Ohio has not shown that its interest in preventing the misuse of anonymous election related speech justifies a prohibition of all uses of that speech. The State may, and does, punish fraud directly. But it cannot seek to punish fraud indirectly by indiscriminately outlawing a category of speech, based on its content, with no necessary relationship to the danger sought to be prevented.”

The ordinance, if approved, would seem to be materially indistinguishable from the Ohio statute struck down by the Supreme Court inMcIntyre, since it prohibits anonymous distribution of “any printed or copied flier, advertisement, brochure, letter, mailer or other substantially similar communication, which directly or indirectly attempts to influence the action of the voters for or against the election of any candidate or candidates or the qualification, passage or defeat of any city ballot measure” if more than 100 copies are distributed in one month.

The ordinance says it is an extension of California’s disclosure requirement, in Gov’t Code section 84305, that prohibits any candidate or “committee” from making an anonymous mass mailing, which is defined in section 82041.5 to mean at least 200 “similar pieces of mail.”

In 1994 — one year beforeMcIntyre — the California Supreme Court upheld the restrictions in section 84305 “as applied to candidates and candidate-controlled committees.”  Griset v. Fair Political Practices Com, 8 Cal. 4th 851, 861 (1994) (Griset I).  The state Supreme Court subsequently ducked the question of whetherMcIntyre required a different result because it found its decision inGriset was final beforeMcIntyre was decided and because the trial court had found 84305 to be “unconstitutional as to individuals or committeesother than candidates and candidate-controlled committees” and had remedied the situation by . “narrowing the definition of ‘committee’ to include only a candidate-controlled committee.”   Griset v. Fair Political Practices Com, 25 Cal. 4th 688, 699 (2001) (Griset II).

Under the twoGriset decisions andMcIntyre, then, the attempt to expand the prohibition on anonymous political speech to include material distributed by those other than candidates and candidate-controlled committees would seem to be unconstitutional.