Free Speech

Outlawing the Federalist Papers

Can free speech be anonymous too?

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Publius would have to watch his back in Ohio these days. The Supreme Court will decide this term whether or not to remedy this situation.

Early American patriots often used pseudonyms like Publius (used by Alexander Hamilton, James Madison, and John Jay when they wrote the Federalist Papers) when they advocated political change. But Ohio doesn't like the idea of anonymity in political pamphleteering.

One reason to crave anonymity in political speech is fear of reprisal from vengeful officials. In 1988, this fear came to life for Margaret McIntyre of Westerville, Ohio, a suburb of Columbus.

McIntyre was accused by an angry school-board official of distributing pamphlets against a proposed new school tax without putting her name on the pamphlets. The Ohio Elections Commission slapped her with a $100 fine.

Mrs. McIntyre–and her husband, who has carried on the case since her death in May 1994–took the case all the way to the U.S. Supreme Court. This term, the justices will decide whether the right of free speech includes the right to anonymous speech.

Not only Ohio and the McIntyres will be affected by the outcome. Twenty-seven other states with similar laws filed amicus briefs on behalf of Ohio. But David Goldberger of the Ohio State University College of Law, the McIntyres' lawyer on the case, stresses that even a decision in their favor wouldn't necessarily mean an end to bans of anonymous speech in political literature.

Most existing campaign-disclosure law kicks in only when the money spent hits a certain level, but Ohio's does not. Most states, Goldberger says, could adjust to a narrow ruling against Ohio by adopting a "tripwire amount"–a minimum amount spent on political speech under which their laws wouldn't apply. Arizona, he says, has already adjusted its law this way.

The decision could go either way. During hearings, Sandra Day O'Connor seemed most sympathetic to the McIntyres, forcing an admission, later denied, from Ohio's lawyer that the state would have prosecuted the authors of the Federalist Papers. Antonin Scalia, however, posited that since the law was passed by an elected legislature, and there has been no citizen movement to repeal it, the citizens of Ohio must want it. Ruth Bader Ginsburg countered that doubtless most Ohioans had never heard of the law.

Either way, the decision probably won't entirely eliminate restrictions on political speech. "It won't change the court's view that campaign limits aren't inherently unconstitutional," says Robert Peck of the American Civil Liberties Union, which sponsored the McIntyre lawsuit.