During the 1983 mayoral campaign in Chicago, a whisper campaign against Democratic nominee Harold Washington wasn’t doing the job. So the allegation that had been passed orally from one person to another–that Washington was a child molester–was written up and passed out in a desperate (and futile) effort to defeat him.
The flyer, as you might guess, was not printed on the letterhead of some organization, published in the newspaper or signed by some prominent citizen. It was anonymous. The author wanted the phony charge circulated, but he had no desire to accept responsibility for it.
That is the reality of anonymous leafleting, which the Supreme Court recently insisted is “not a pernicious, fraudulent practice, but an honorable tradition of advocacy and dissent.” The six justices in the majority, unfortunately, were not merely expressing their idle opinion of this custom. They were discovering in the Constitution a new right to keep your identity secret while engaging in electioneering, a decision that will help the malicious and hinder democracy.
Disclosure lies at the heart of our campaign laws. We require candidates to reveal how much money they raise, who they get it from and how much they spend. People who give to office-seekers have to make their names public. Even those who spend their money independently to promote a candidate must file detailed reports with the Federal Election Commission.
The Supreme Court upheld these regulations in 1976, concluding that disclosure helps voters evaluate candidates, deters corruption and make it easier to detect violations of contribution limits. It does place a burden on people who want to promote their views by helping candidates, but the inconvenience is minor compared to the benefits to the democratic process.
The same, of course, is true of the law the court struck down in this case. Like 48 other states, Ohio says campaign literature has to include the name and address of whomever issues it. After Margaret McIntyre passed out unsigned flyers opposing a school tax, she was fined $100. She sued, arguing that the law violated her free-speech rights, and last month, the court said she was right.
Justice John Paul Stevens, writing the majority opinion, reminded us that “great works of literature have frequently been produced by authors writing under assumed names” and that many political thinkers of the revolutionary era used pseudonyms–including James Madison, Alexander Hamilton and John Jay, whose Federalist papers bore the byline of “Publius.”
But to say something was once common and legal is not to say that it is a constitutional right. It used to be common and legal for candidates to take secret campaign contributions, but no one thinks that deep-rooted tradition enjoys the protection of the Constitution. And the policy of banning anonymous campaign leaflets has its own long history, going back more than a century.
What purpose does it serve? The worthy one of fostering honest and reasoned debate, while discouraging lies and malicious gossip. People who have to put their names on what they write, you can be sure, will behave more responsibly than those who can escape accountability. (The most vulgar hate mail I get always comes without a signature, much less a return address.)
As Justice Antonin Scalia wrote in his powerful dissent, newspapers have to publish the names and addresses of their officers and owners to get second-class postage rates. Is that law now unconstitutional? “Must a parade permit be issued to a group that refuses to provide its identity, or that agrees to do so only under assurance that the identity will not be made public?” he asked. “Must a municipal `public-access’ cable channel permit anonymous (or masked) performers?”
Justice Stevens quoted his revered predecessor Hugo Black, who said that persecuted groups “throughout history have been able to criticize oppressive practices and laws either anonymously or not at all.” But that is a reason to exempt despised organizations from disclosure rules–not to scrap such laws entirely.
The court acted sensibly, in 1958, in excusing the NAACP from giving its membership list to the white racist government of Alabama. But even then, it saw no reason to spare all organizations the requirement by overturning the law.
There are occasional instances even today when anonymous leaflets are the only safe way to expose wrongdoing–and in those cases, the courts can protect the vulnerable. But far more often, it protects wrongdoing.
“I can imagine no reason,” wrote Scalia, “why an anonymous leaflet is any more honorable, as a general matter, than an anonymous phone call or an anonymous letter.” Pretending otherwise, as the court did, yields a trivial gain for free speech and a substantial loss for the system of government designed to protect all our freedoms.
