McIntyre v. Ohio Elections Commission
Although I am a computer science major in my undergraduate studies here at UC Berkeley, I have had it in the back of my mind since middle school that someday I might attend law school. In the past, I have discussed various decisions of the Supreme Court of the United States on this blog. You can find a few of them if you go through the posts I've tagged with the label "law". The majority of Supreme Court cases are actually quite boring; most are decided unanimously and concern areas of the law that will rarely interfere with one's everyday activities. In this series of posts I would like to visit a few miscellaneous Supreme Court cases that I have stumbled across that I have found quite captivating. The first one I'll do is McIntyre v. Ohio Elections Commission (1995). As I'll explain later, although the case does not concern technology law, its relevance today extends to technology.
I became curious about McIntyre v. Ohio Elections Commission when I realized that it came from my home state of Ohio. My old Ohio friends will remember how every few years, our school district would place a tax levy issue on the district's election ballot, asking to raise property taxes for additional funding for the school district. One year, the tax levy failed to pass, and consequently the school district cut back funding on various school resources; perhaps the most memorable consequence for middle school me was that no longer would large cookies be sold at lunch.
On the evening of April 27, 1988, the superintendent of Westerville City Schools held a meeting at Blendon Middle School in Westerville, Ohio, to discuss a new tax levy for the school district that would go onto the school district's election ballot that year. On the same day, an Ohioan named Margaret McIntyre stood outside Blendon Middle School and distributed leaflets to attendants of the public meeting, asking them to vote no on the tax levy issue.
As McIntyre was distributing the leaflets, a school official warned her that the leaflets did not conform with Ohio election laws. At the time, section 3599.09(A) of the Ohio Revised Code stated that no one may distribute any kind of publication intended to influence voters at an election unless that publication contained the name and address of the person or organization responsible for the content of the message. As you can see in the image above, McIntyre's leaflet did not include her name or address; it was signed anonymously, supposedly on behalf of "CONCERNED PARENTS AND TAX PAYERS". Despite the school official's warning, McIntyre proceeded to distribute leaflets even at a meeting on the next evening. The proposed tax levy failed to pass at the next election following the incident, and it would continue to fail for another election, until finally in November 1988 it passed on its third try.
Five months after the levy passed, the same school official that warned McIntyre filed a complaint with the Ohio Election Commission, accusing her of violating section 3599.09(A) of the Ohio Revised Code when she distributed her unsigned leaflets outside Blendon Middle School that day. After reviewing the complaint, the Ohio Election Commission agreed and ordered McIntyre to pay a fine of $100 (adjusted for inflation, $216.71 in 2019). This is another reason why this case was so captivating to me. Ordinarily, when the government charges $100, most people just shrug and pay it off regardless of whether it is fair. To contest the charge would require paying legal fees far in excess of $100. It's simply "not worth it" to pursue an appeal.
Margaret McIntyre, however, would not have it. Despite the small amount in controversy, McIntyre appealed the case to the Franklin County Court of Common Pleas (I have in fact visited the Franklin County courthouse several times when I went to compete in the high school mock trial competition held there). On appeal, the Court of Common Pleas reversed the judgment of the Ohio Elections Commission, holding that because McIntyre's actions were in good faith and were not intended to "mislead the public nor act in a surreptitious manner", section 3599.09(A) was unconstitutional as it applied to her actions because it violated the First Amendment to the U.S. Constitution, which protects the freedom of speech (although the First Amendment states that Congress may not abridge free speech, it is nevertheless applicable to state governments as well via the Fourteenth Amendment). The Ohio Court of Appeals, however, reinstated the fine, arguing that it was bound by a precedent set in a similar case decided in 1922 by the Ohio Supreme Court which upheld the statutory predecessor to section 3599.09(A).
McIntyre then appealed the case to the Ohio Supreme Court itself, which affirmed the judgment of the Ohio Court of Appeals, holding that section 3599.09(A) was constitutional because the "minor requirement" it imposes on political ad distributors "neither impacts the content of their message nor significantly burdens their ability to have it disseminated". Furthermore, whatever burden does exist is "more than counterbalanced by the state interest in providing the voters to whom the message is directed with a mechanism by which they may better evaluate its validity. Moreover, the law serves to identify those who engage in fraud, libel or false advertising." Relevant in this discussion is Talley v. California (1960), a case in which the U.S. Supreme Court invalidated a Los Angeles city ordinance that bans all anonymous leafletting. The Ohio Supreme Court stated that this case was different because the law in question "has as its purpose the identification of persons who distribute materials containing false statements".
While her case was pending before the Ohio Supreme Court, Margaret McIntyre passed away. You would think, at this point, after reaching the highest court within her state, maybe McIntyre's family should just give up and fork over that $100. Nope!
On behalf of Margaret McIntyre, the executor of her estate filed a petition for a writ of certiorari in the Supreme Court of the United States. (A writ of certiorari orders a lower court to send all of its materials on a case to the Supreme Court for review; if the Supreme Court grants a petition for a writ of certiorari, that means that it has agreed to review the case.) The Supreme Court granted the petition on February 22, 1994. The Court heard oral arguments in the case on October 12, 1994, and the decision in the case that will now forever be known as McIntyre v. Ohio Elections Commission was announced on April 19, 1995—almost seven years after McIntyre stood outside Blendon Middle School that evening in Westerville, Ohio.
The opinion of the Court was delivered by Justice John Paul Stevens, who retired from the Court in 2010 and passed away last month on July 16, 2019. Justice Stevens was joined by Justices O'Conner, Kennedy, Souter, Ginsburg, and Breyer. In deciding the case, Justice Stevens wrote: "Even though the amount in controversy is only $100, petitioner, as the executor of her estate, has pursued her claim in this Court. Our grant of certiorari, 510 U. S. 1108 (1994), reflects our agreement with his appraisal of the importance of the question presented."
In his opinion, Justice Stevens noted how some of the most important pieces of literature in American history were published either anonymously or pseudonymously, such as Mark Twain (Samuel Langhorne Clemens) and Voltaire (Francois Marie Arouet). He also noted how Founding Fathers Alexander Hamilton, James Madison, and John Jay, in arguing for the ratification of the Constitution, wrote under the pseudonym "Publius" when they published The Federalist Papers. Justice Stevens concluded:
And that is the story of how an old lady managed to get herself out of paying $100 by taking her claim all the way to the U.S. Supreme Court. Oh, and she also managed to strike down similar election laws in 49 U.S. states prohibiting anonymity in various forms of political advertising. She did that too.
In dissent, Justice Antonin Scalia, joined by Chief Justice William Rehnquist, wrote:
Since 1988 and the Supreme Court's decision in 1995, the Internet has pervaded U.S. politics. It is ridiculously easy nowadays to make an anonymous posting on the Internet intended to sway public thought in an election, and with the rise of "fake news", I think that the decision in McIntyre v. Ohio Elections Commission is perhaps even more timely today than it was in 1995. Perhaps Scalia's warning is not to be disregarded lightly: in our current political climate of rampant disinformation, to what extent must we balance the need for accountability with the need for free political expression aided by anonymity?
Surely we cannot expect every post on the Internet with an inkling of political connotation to require one's name and address, but we must be more wary of anonymous sources. Children in school are nowadays taught the importance of identifying reliable sources and to distrust information if they are not sure where it comes from. The idealistic view of anonymous political messaging as an "honorable tradition of advocacy and of dissent" expressed in McIntyre v. Ohio Elections Commission no longer seems to hold up in today's digital environment. Nevertheless, the fundamental principles that the decision espouses remain relevant—anonymity does allow us to avoid harassment and persecution for expressing minority views in toxic environments where minority views are met with such actions, and McIntyre v. Ohio Elections Commission protects your right to remain anonymous.
I became curious about McIntyre v. Ohio Elections Commission when I realized that it came from my home state of Ohio. My old Ohio friends will remember how every few years, our school district would place a tax levy issue on the district's election ballot, asking to raise property taxes for additional funding for the school district. One year, the tax levy failed to pass, and consequently the school district cut back funding on various school resources; perhaps the most memorable consequence for middle school me was that no longer would large cookies be sold at lunch.
On the evening of April 27, 1988, the superintendent of Westerville City Schools held a meeting at Blendon Middle School in Westerville, Ohio, to discuss a new tax levy for the school district that would go onto the school district's election ballot that year. On the same day, an Ohioan named Margaret McIntyre stood outside Blendon Middle School and distributed leaflets to attendants of the public meeting, asking them to vote no on the tax levy issue.
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| One of the leaflets distributed by McIntyre on April 27, 1988 |
Five months after the levy passed, the same school official that warned McIntyre filed a complaint with the Ohio Election Commission, accusing her of violating section 3599.09(A) of the Ohio Revised Code when she distributed her unsigned leaflets outside Blendon Middle School that day. After reviewing the complaint, the Ohio Election Commission agreed and ordered McIntyre to pay a fine of $100 (adjusted for inflation, $216.71 in 2019). This is another reason why this case was so captivating to me. Ordinarily, when the government charges $100, most people just shrug and pay it off regardless of whether it is fair. To contest the charge would require paying legal fees far in excess of $100. It's simply "not worth it" to pursue an appeal.
Margaret McIntyre, however, would not have it. Despite the small amount in controversy, McIntyre appealed the case to the Franklin County Court of Common Pleas (I have in fact visited the Franklin County courthouse several times when I went to compete in the high school mock trial competition held there). On appeal, the Court of Common Pleas reversed the judgment of the Ohio Elections Commission, holding that because McIntyre's actions were in good faith and were not intended to "mislead the public nor act in a surreptitious manner", section 3599.09(A) was unconstitutional as it applied to her actions because it violated the First Amendment to the U.S. Constitution, which protects the freedom of speech (although the First Amendment states that Congress may not abridge free speech, it is nevertheless applicable to state governments as well via the Fourteenth Amendment). The Ohio Court of Appeals, however, reinstated the fine, arguing that it was bound by a precedent set in a similar case decided in 1922 by the Ohio Supreme Court which upheld the statutory predecessor to section 3599.09(A).
McIntyre then appealed the case to the Ohio Supreme Court itself, which affirmed the judgment of the Ohio Court of Appeals, holding that section 3599.09(A) was constitutional because the "minor requirement" it imposes on political ad distributors "neither impacts the content of their message nor significantly burdens their ability to have it disseminated". Furthermore, whatever burden does exist is "more than counterbalanced by the state interest in providing the voters to whom the message is directed with a mechanism by which they may better evaluate its validity. Moreover, the law serves to identify those who engage in fraud, libel or false advertising." Relevant in this discussion is Talley v. California (1960), a case in which the U.S. Supreme Court invalidated a Los Angeles city ordinance that bans all anonymous leafletting. The Ohio Supreme Court stated that this case was different because the law in question "has as its purpose the identification of persons who distribute materials containing false statements".
While her case was pending before the Ohio Supreme Court, Margaret McIntyre passed away. You would think, at this point, after reaching the highest court within her state, maybe McIntyre's family should just give up and fork over that $100. Nope!
On behalf of Margaret McIntyre, the executor of her estate filed a petition for a writ of certiorari in the Supreme Court of the United States. (A writ of certiorari orders a lower court to send all of its materials on a case to the Supreme Court for review; if the Supreme Court grants a petition for a writ of certiorari, that means that it has agreed to review the case.) The Supreme Court granted the petition on February 22, 1994. The Court heard oral arguments in the case on October 12, 1994, and the decision in the case that will now forever be known as McIntyre v. Ohio Elections Commission was announced on April 19, 1995—almost seven years after McIntyre stood outside Blendon Middle School that evening in Westerville, Ohio.
The opinion of the Court was delivered by Justice John Paul Stevens, who retired from the Court in 2010 and passed away last month on July 16, 2019. Justice Stevens was joined by Justices O'Conner, Kennedy, Souter, Ginsburg, and Breyer. In deciding the case, Justice Stevens wrote: "Even though the amount in controversy is only $100, petitioner, as the executor of her estate, has pursued her claim in this Court. Our grant of certiorari, 510 U. S. 1108 (1994), reflects our agreement with his appraisal of the importance of the question presented."
In his opinion, Justice Stevens noted how some of the most important pieces of literature in American history were published either anonymously or pseudonymously, such as Mark Twain (Samuel Langhorne Clemens) and Voltaire (Francois Marie Arouet). He also noted how Founding Fathers Alexander Hamilton, James Madison, and John Jay, in arguing for the ratification of the Constitution, wrote under the pseudonym "Publius" when they published The Federalist Papers. Justice Stevens concluded:
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. Mill, 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. 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 judgment of the Ohio Supreme Court is reversed.
It is so ordered.
And that is the story of how an old lady managed to get herself out of paying $100 by taking her claim all the way to the U.S. Supreme Court. Oh, and she also managed to strike down similar election laws in 49 U.S. states prohibiting anonymity in various forms of political advertising. She did that too.
In dissent, Justice Antonin Scalia, joined by Chief Justice William Rehnquist, wrote:
I do not know where the Court derives its perception that “anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent.” I can imagine no reason why an anonymous leaflet is any more honorable, as a general matter, than an anonymous phone call or an anonymous letter. It facilitates wrong by eliminating accountability, which is ordinarily the very purpose of the anonymity. There are of course exceptions, and where anonymity is needed to avoid “threats, harassment, or reprisals” the First Amendment will require an exemption from the Ohio law. Cf. NAACP v. Alabama ex rel. Patterson, 357 U. S. 449 (1958). But to strike down the Ohio law in its general application—and similar laws of 49 other States and the Federal Government—on the ground that all anonymous communication is in our society traditionally sacrosanct, seems to me a distortion of the past that will lead to a coarsening of the future.This is a case in which Scalia uses the phrase "I respectfully dissent", a practice he would drop toward the end of his tenure on the Court.
I respectfully dissent.
Since 1988 and the Supreme Court's decision in 1995, the Internet has pervaded U.S. politics. It is ridiculously easy nowadays to make an anonymous posting on the Internet intended to sway public thought in an election, and with the rise of "fake news", I think that the decision in McIntyre v. Ohio Elections Commission is perhaps even more timely today than it was in 1995. Perhaps Scalia's warning is not to be disregarded lightly: in our current political climate of rampant disinformation, to what extent must we balance the need for accountability with the need for free political expression aided by anonymity?
Surely we cannot expect every post on the Internet with an inkling of political connotation to require one's name and address, but we must be more wary of anonymous sources. Children in school are nowadays taught the importance of identifying reliable sources and to distrust information if they are not sure where it comes from. The idealistic view of anonymous political messaging as an "honorable tradition of advocacy and of dissent" expressed in McIntyre v. Ohio Elections Commission no longer seems to hold up in today's digital environment. Nevertheless, the fundamental principles that the decision espouses remain relevant—anonymity does allow us to avoid harassment and persecution for expressing minority views in toxic environments where minority views are met with such actions, and McIntyre v. Ohio Elections Commission protects your right to remain anonymous.