McIntyre v. Ohio Elections Comm'n, 514 U.S.
JUSTICE SCALIA, with
whom The Chief Justice joins, dissenting.
At a time when both political branches of Government and both political
parties reflect a popular desire to leave more decisionmaking authority to the
States, today's decision moves in the opposite direction, adding to the legacy
of inflexible central mandates (irrevocable even by Congress) imposed by this
Court's constitutional jurisprudence. In an opinion which reads as though it is
addressing some peculiar law like the Los Angeles municipal ordinance at issue
in Talley v. California,
U.S. 60 (1960), the Court invalidates a species of protection for the
election process that exists, in a variety of forms, in every State except
California, and that has a pedigree dating back to the end of the 19th century.
Preferring the views of the English utilitarian philosopher John Stuart Mill,
ante, at 23, to the considered judgment of the American people's elected
representatives from coast to coast, the Court discovers a hitherto unknown
right-to-be-unknown while engaging in electoral politics. I dissent from this
imposition of free-speech imperatives that are demonstrably not those of the
American people today, and that there is inadequate
[514 U.S. 334, 335] reason to believe were
those of the society that begat the First Amendment or the Fourteenth.
The question posed by the present case is not the easiest sort to answer for
those who adhere to the Court's (and the society's) traditional view that the
Constitution bears its original meaning and is unchanging. Under that view,
"[o]n every question of construction, [we should] carry ourselves back to
the time when the Constitution was adopted; recollect the spirit manifested in
the debates; and instead of trying [to find] what meaning may be squeezed out
of the text, or invented against it, conform to the probable one in which it
was passed." T. Jefferson, Letter to William Johnson (June 12, 1823), in
15 Writings of Thomas Jefferson 439, 449 (A. Lipscomb ed. 1904). That
technique is simple of application when government conduct that is claimed to
violate the Bill of Rights or the Fourteenth Amendment is shown, upon
investigation, to have been engaged in without objection at the very time the
Bill of Rights or the Fourteenth Amendment was adopted. There is no doubt, for
example, that laws against libel and obscenity do not violate "the freedom
of speech" to which the First Amendment refers; they existed and were
universally approved in 1791. Application of the principle of an unchanging
Constitution is also simple enough at the other extreme, where the government
conduct at issue was not engaged in at the time of adoption, and there is ample
evidence that the reason it was not engaged in is that it was thought to
violate the right embodied in the constitutional guarantee. Racks and
thumbscrews, well known instruments for inflicting pain, were not in use
because they were regarded as cruel punishments.
The present case lies between those two extremes. Anonymous electioneering
was not prohibited by law in [514 U.S. 334,
336] 1791 or in 1868. In fact, it was widely practiced at the
earlier date, an understandable legacy of the revolutionary era in which
political dissent could produce governmental reprisal. I need not dwell upon
the evidence of that, since it is described at length in today's concurrence.
See ante, at 3-13 (THOMAS, J., concurring in judgment).
The practice of anonymous electioneering may have been less general in 1868,
when the Fourteenth Amendment was adopted, but at least as late as 1837 it was
respectable enough to be engaged in by Abraham Lincoln. See 1 A. Beveridge,
Abraham Lincoln 1809-1858, pp. 215-216 (1928); 1 Uncollected Works of
Abraham Lincoln 155-161 (R. Wilson ed. 1947).
But to prove that anonymous electioneering was used frequently is not to
establish that it is a constitutional right. Quite obviously, not every
restriction upon expression that did not exist in 1791 or in 1868 is ipso facto
unconstitutional, or else modern election laws such as those involved in Burson
U.S. 191 (1992), and Buckley v. Valeo,
U.S. 1 (1976), would be prohibited, as would (to mention only a few other
categories) modern antinoise regulation of the sort involved in Kovacs v.
U.S. 77 (1949), and Ward v. Rock Against Racism,
U.S. 781 (1989), and modern parade-permitting regulation of the sort
involved in Cox v. New Hampshire,
U.S. 569 (1941).
Evidence that anonymous electioneering was regarded as a constitutional
right is sparse, and as far as I am aware evidence that it was generally
regarded as such is nonexistent. The concurrence points to "freedom of the
press" objections that were made against the refusal of some Federalist
newspapers to publish unsigned essays opposing the proposed constitution (on
the ground that they might be the work of foreign agents). See ante, at 7-9
(THOMAS, J., concurring in judgment). But of course if
every partisan cry of "freedom of the press" were accepted as valid,
our Constitution would be [514 U.S. 334,
337] unrecognizable; and if one were to generalize from these
particular cries, the First Amendment would be not only a protection for
newspapers but a restriction upon them. Leaving aside, however, the fact that
no governmental action was involved, the Anti-Federalists had a point, inasmuch
as the editorial proscription of anonymity applied only to them, and thus had
the vice of viewpoint discrimination. (Hence the comment by Philadelphiensis,
quoted in the concurrence: "`Here we see pretty plainly through [the
Federalists'] excellent regulation of the press, how things are to be carried
on after the adoption of the new constitution.'" Ante, at 8 (quoting
Philadelphiensis, Essay I, Independent Gazetteer, Nov. 7, 1787, in 3
Complete Anti-Federalist 103 (H. Storing ed. 1981)).)
The concurrence recounts other pre- and post-Revolution examples of defense
of anonymity in the name of "freedom of the press," but not a single
one involves the context of restrictions imposed in connection with a free,
democratic election, which is all that is at issue here. For many of them,
moreover, such as the 1735 Zenger trial, ante, at 3-4, the 1779
"Leonidas" controversy in the Continental Congress, ante, at 4, and
the 1779 action by the New Jersey Legislative Council against Isaac Collins,
ante, at 5, the issue of anonymity was incidental to the (unquestionably
free-speech) issue of whether criticism of the government could be punished by
Thus, the sum total of the historical evidence marshalled by the concurrence
for the principle of constitutional entitlement to anonymous electioneering is
partisan claims in the debate on ratification (which was almost like an
election) that a viewpoint-based restriction on anonymity by newspaper editors
violates freedom of speech. This absence of historical testimony concerning the
point before us is hardly remarkable. The issue of a governmental prohibition
upon anonymous electioneering [514 U.S. 334,
338] in particular (as opposed to a government prohibition
upon anonymous publication in general) simply never arose. Indeed, there
probably never arose even the abstract question of whether electoral openness
and regularity was worth such a governmental restriction upon the normal right
to anonymous speech. The idea of close government regulation of the electoral
process is a more modern phenomenon, arriving in this country in the late
1800's. See Burson v. Freeman, supra, at 203-205.
What we have, then, is the most difficult case for determining the meaning
of the Constitution. No accepted existence of governmental restrictions of the
sort at issue here demonstrates their constitutionality, but neither can their
nonexistence clearly be attributed to constitutional objections. In such a
case, constitutional adjudication necessarily involves not just history but
judgment: judgment as to whether the government action under challenge is
consonant with the concept of the protected freedom (in this case, the freedom
of speech and of the press) that existed when the constitutional protection was
accorded. In the present case, absent other indication I would be inclined to
agree with the concurrence that a society which used anonymous political debate
so regularly would not regard as constitutional even moderate restrictions made
to improve the election process. (I would, however, want further evidence of
common practice in 1868, since I doubt that the Fourteenth Amendment
time-warped the post-Civil War States back to the Revolution.)
But there is other indication, of the most weighty sort: the widespread and
longstanding traditions of our people. Principles of liberty fundamental enough
to have been embodied within constitutional guarantees are not readily erased
from the Nation's consciousness. A governmental practice that has become
general throughout the United States, and particularly one that has the
[514 U.S. 334, 339] validation
of long, accepted usage, bears a strong presumption of constitutionality. And
that is what we have before us here. Section 3599.09(A) was enacted by the
General Assembly of the State of Ohio almost 80 years ago. See Act of May 27,
1915, 1915 Ohio Leg. Acts 350. Even at the time of its adoption, there was
nothing unique or extraordinary about it. The earliest statute of this sort was
adopted by Massachusetts in 1890, little more than 20 years after the
Fourteenth Amendment was ratified. No less than 24 States had similar laws by
the end of World War I, and today
every State of the Union except California has one, as [514 U.S.
334, 340] does the District of Columbia, see D.C. Code Ann.
1-1420 (1992), and as does the Federal Government where advertising relating to
candidates for federal office is concerned, see 2 U.S.C. 441d(a). Such a
[514 U.S. 334, 341] and long established
American legislative practice must be given precedence, I think, over
historical and academic speculation regarding a restriction that assuredly does
not go to the heart of free speech.
It can be said that we ignored a tradition as old, and almost as widespread,
in Texas v. Johnson,
U.S. 397 (1989), where we held unconstitutional a state law prohibiting
desecration of the United States flag. See also United States v. Eichman,
U.S. 310 (1990). But those cases merely stand for the proposition that
post-adoption tradition cannot alter the core meaning of a constitutional
guarantee. As we said in Johnson, "[i]f there is a bedrock principle
underlying the First Amendment, it is that the government may not prohibit the
expression of an idea simply because society finds the idea itself offensive or
U.S., at 414 . Prohibition of expression of contempt for the flag, whether
by contemptuous words, see Street v. New York,
U.S. 576 (1969), or by burning the flag, came, we said, within that
"bedrock principle." The law at issue here, by contrast, forbids the
expression of no idea, but merely requires identification of the speaker when
the idea is uttered in the electoral context. It is at the periphery of the
First Amendment, like the law at issue in Burson, where we took guidance from
tradition in upholding against constitutional attack restrictions upon
electioneering in the vicinity of polling places, see
[514 U.S. 334, 342]
U.S., at 204-206 (plurality opinion); id., at 214-216 (SCALIA, J., concurring in judgment).
The foregoing analysis suffices to decide this case for me. Where the
meaning of a constitutional text (such as "the freedom of speech") is
unclear, the widespread and long-accepted practices of the American people are
the best indication of what fundamental beliefs it was intended to enshrine.
Even if I were to close my eyes to practice, however, and were to be guided
exclusively by deductive analysis from our case law, I would reach the same
Three basic questions must be answered to decide this case. Two of them are
readily answered by our precedents; the third is readily answered by common
sense and by a decent regard for the practical judgment of those more familiar
with elections than we are. The first question is whether protection of the
election process justifies limitations upon speech that cannot constitutionally
be imposed generally. (If not, Talley v. California, which invalidated a flat
ban on all anonymous leafletting, controls the decision here.) Our cases
plainly answer that question in the affirmative – indeed, they suggest
that no justification for regulation is more compelling than protection of the
electoral process. "Other rights, even the most basic, are illusory if the
right to vote is undermined." Wesberry v. Sanders,
U.S. 1, 17 (1964). The State has a "compelling interest in preserving
the integrity of its election process." Eu v. San Francisco Cty.
Democratic Central Comm.,
U.S. 214, 231 (1989). So significant have we found the interest in
protecting the electoral process to be that we have approved the prohibition of
political speech entirely in areas that would impede that process. Burson,
supra, at 204-206 (plurality opinion). [514 U.S.
The second question relevant to our decision is whether a "right to
anonymity" is such a prominent value in our constitutional system that
even protection of the electoral process cannot be purchased at its expense.
The answer, again, is clear: no. Several of our cases have held that in
peculiar circumstances the compelled disclosure of a person's identity would
unconstitutionally deter the exercise of First Amendment associational rights.
See, e.g., Brown v. Socialist Workers '74 Campaign Comm. (Ohio),
U.S. 87 (1982); Bates v. Little Rock,
U.S. 516 (1960); NAACP v. Alabama ex rel. Patterson,
U.S. 449 (1958). But those cases did not acknowledge any general right to
anonymity, or even any right on the part of all citizens to ignore the
particular laws under challenge. Rather, they recognized a right to an
exemption from otherwise valid disclosure requirements on the part of someone
who could show a "reasonable probability" that the compelled
disclosure would result in "threats, harassment, or reprisals from either
Government officials or private parties." This last quotation is from
Buckley v. Valeo,
U.S. 1, 74 (1976) (per curiam), which prescribed the safety-valve of a
similar exemption in upholding the disclosure requirements of the Federal
Election Campaign Act. That is the answer our case law provides to the Court's
fear about the "tyranny of the majority," ante, at 23, and to its
concern that "`[p]ersecuted groups and sects from time to time throughout
history have been able to criticize oppressive practices and laws either
anonymously or not at all,'" ante, at 8 (quoting Talley,
U.S., at 64 ). Anonymity can still be enjoyed by those who require it,
without utterly destroying useful disclosure laws. The record in this case
contains not even a hint that Mrs. McIntyre feared "threats, harassment,
or reprisals"; indeed, she placed her name on some of her fliers and meant
to place it on all of them. See App. 12, 36-40. [514 U.S. 334, 344]
The existence of a generalized right of anonymity in speech was rejected by
this Court in Lewis Publishing Co. v. Morgan, 229 U.S. 288 (1913), which held
that newspapers desiring the privilege of second class postage could be
required to provide to the Postmaster General, and to publish, a statement of
the names and addresses of their editors, publishers, business managers and
owners. We rejected the argument that the First Amendment forbade the
requirement of such disclosure. Id., at 299. The provision that gave rise to
that case still exists, see 39 U.S.C. 3685, and is still enforced by the Postal
Service. It is one of several federal laws seemingly invalidated by today's
The Court's unprecedented protection for anonymous speech does not even have
the virtue of establishing a clear (albeit erroneous) rule of law. For after
having announced that this statute, because it "burdens core political
speech," requires "exacting scrutiny" and must be "narrowly
tailored to serve an overriding state interest," ante, at 13 (ordinarily
the kiss of death), the opinion goes on to proclaim soothingly (and
unhelpfully) that "a State's enforcement interest might justify a more
limited identification requirement." Ante, at 19. See also ante, at 2
(GINSBURG, J., concurring) ("We do not ... hold
that the State may not in other, larger circumstances, require the speaker to
disclose its interest by disclosing its identity.") Perhaps, then, not all
the State statutes I have alluded to are invalid, but just some of them; or
indeed maybe all of them remain valid in "larger circumstances"! It
may take decades to work out the shape of this newly expanded
right-to-speak-incognito, even in the elections field. And in other areas, of
course, a whole new boutique of wonderful First Amendment litigation opens its
doors. Must a parade permit, for example, 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? Must a [514
U.S. 334, 345] municipally owned theater that is leased for
private productions book anonymously sponsored presentations? Must a government
periodical that has a "letters to the editor" column disavow the
policy that most newspapers have against the publication of anonymous letters?
Must a public university that makes its facilities available for a speech by
Louis Farrakhan or David Duke refuse to disclose the on-campus or off-campus
group that has sponsored or paid for the speech? Must a municipal
"public-access" cable channel permit anonymous (and masked)
performers? The silliness that follows upon a generalized right to anonymous
speech has no end.
The third and last question relevant to our decision is whether the
prohibition of anonymous campaigning is effective in protecting and enhancing
democratic elections. In answering this question no, the Justices of the
majority set their own views – on a practical matter that bears closely
upon the real-life experience of elected politicians and not upon that of
unelected judges – up against the views of 49 (and perhaps all 50, see n.
4, supra) state legislatures and the federal Congress. We might also add to the
list on the other side the legislatures of foreign democracies: Australia,
Canada, and England, for example, all have prohibitions upon anonymous
campaigning. See, e.g., Commonwealth Electoral Act 1918, 328 (Australia);
Canada Elections Act, R.S.C., ch. E-2, 261 (1985); Representation of the People
Act, 1983, 110 (England). How is it, one must wonder, that all of these elected
legislators, from around the country and around the world, could not see what
six Justices of this Court see so clearly that they are willing to require the
entire Nation to act upon it: that requiring identification of the source of
campaign literature does not improve the quality of the campaign?
The Court says that the State has not explained "why it can more easily
enforce the direct bans on disseminating [514
U.S. 334, 346] false documents against anonymous authors and
distributors than against wrongdoers who might use false names and addresses in
an attempt to avoid detection." Ante, at 19. I am not sure what this
complicated comparison means. I am sure, however, that (1) a person who is
required to put his name to a document is much less likely to lie than one who
can lie anonymously, and (2) the distributor of a leaflet which is unlawful
because it is anonymous runs much more risk of immediate detection and
punishment than the distributor of a leaflet which is unlawful because it is
false. Thus, people will be more likely to observe a signing requirement than a
naked "no falsity" requirement; and, having observed that
requirement, will then be significantly less likely to lie in what they have
But the usefulness of a signing requirement lies not only in promoting
observance of the law against campaign falsehoods (though that alone is enough
to sustain it). It lies also in promoting a civil and dignified level of
campaign debate – which the State has no power to command, but ample power
to encourage by such undemanding measures as a signature requirement. Observers
of the past few national elections have expressed concern about the increase of
character assassination – "mudslinging" is the colloquial term -
engaged in by political candidates and their supporters to the detriment of the
democratic process. Not all of this, in fact not much of it, consists of
actionable untruth; most is innuendo, or demeaning characterization, or mere
disclosure of items of personal life that have no bearing upon suitability for
office. Imagine how much all of this would increase if it could be done
anonymously. The principal impediment against it is the reluctance of most
individuals and organizations to be publicly associated with uncharitable and
uncivil expression. Consider, moreover, the increased potential for "dirty
tricks." It is not unheard-of for campaign operatives to circulate
[514 U.S. 334, 347] material
over the name of their opponents or their opponents' supporters (a violation of
election laws) in order to attract or alienate certain interest groups. See,
e.g., B. Felknor, Political Mischief: Smear, Sabotage, and Reform in U.S.
Elections 111-112 (1992) (fake United Mine Workers' newspaper assembled by the
National Republican Congressional Committee); New York v. Duryea, 76 Misc. 2d
948, 351 N. Y. S. 2d 978 (Sup. 1974) (letters purporting to be from the
"Action Committee for the Liberal Party" sent by Republicans). How
much easier – and sanction-free! – it would be to circulate anonymous
material (for example, a really tasteless, though not actionably false, attack
upon one's own candidate) with the hope and expectation that it will be
attributed to, and held against, the other side.
The Court contends that demanding the disclosure of the pamphleteer's
identity is no different from requiring the disclosure of any other information
that may reduce the persuasiveness of the pamphlet's message. See ante, at
14-15. It cites Miami Herald Publishing Co. v. Tornillo,
U.S. 241 (1974), which held it unconstitutional to require a newspaper that
had published an editorial critical of a particular candidate to furnish space
for that candidate to reply. But it is not usual for a speaker to put forward
the best arguments against himself, and it is a great imposition upon free
speech to make him do so. Whereas it is quite usual – it is expected
– for a speaker to identify himself, and requiring that is (at least when
there are no special circumstances present) virtually no imposition at all.
We have approved much more onerous disclosure requirements in the name of
fair elections. In Buckley v. Valeo,
U.S. 1 (1976), we upheld provisions of the Federal Election Campaign Act
that required private individuals to report to the Federal Election Commission
independent expenditures made for communications advocating the election or
defeat of a candidate for [514 U.S. 334,
348] federal office. Id., at 80. Our primary rationale for
upholding this provision was that it served an "informational
interest" by "increas[ing] the fund of information concerning those
who support the candidates," id., at 81. The provision before us here
serves the same informational interest, as well as more important interests,
which I have discussed above. The Court's attempt to distinguish Buckley, see
ante, at 22-23, would be unconvincing, even if it were accurate in its
statement that the disclosure requirement there at issue "reveals far less
information" than requiring disclosure of the identity of the author of a
specific campaign statement. That happens not to be accurate, since the
provision there at issue required not merely "[d]isclosure of an
expenditure and its use, without more," ante, at 22. It required, among
"the identification of each person to whom expenditures
have been made ... within the calendar year in an aggregate amount or value in
excess of $100, the amount, date, and purpose of each such expenditure and the
name and address of, and office sought by, each candidate on whose behalf such
expenditure was made." 2 U.S.C. 434(b)(9) (1970 ed., Supp. IV) (emphasis
added). See also 2 U.S.C. 434(e) (1970 ed., Supp. IV). (Both reproduced in
Appendix to Buckley,
U.S., at 158, 160).
Surely in many if not most cases, this information will readily permit
identification of the particular message that the would-be-anonymous campaigner
sponsored. Besides which the burden of complying with this provision, which
includes the filing of quarterly reports, is infinitely more onerous than
Ohio's simple requirement for signature of campaign literature. If Buckley
remains the law, this is an easy case. [514 U.S.
* * *
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." Ante, at 23. 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,
U.S. 449 (1958). But to strike down the Ohio law in its general application
– and similar laws of 48 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.
I respectfully dissent.
 See Act of June 19, 1915, No. 171, 9, 1915 Ala. Acts
250, 254-255; Act of Mar. 12, 1917, ch. 47, 1, 1917 Ariz. Sess. Laws 62, 62-63;
Act of Apr. 2, 1913, No. 308, 6, 1913 Ark. Gen. Acts 1252, 1255; Act of Mar.
15, 1901, ch. 138, 1, 1901 Cal. Stats. 297; Act of June 6, 1913, ch. 6470, 9,
1913 Fla. Laws 268, 272-273; Act of June 26, 1917, 1, 1917 Ill. Laws 456,
456-457; Act of Mar. 14, 1911, ch. 137, 1, 1911 Kan. Sess. Laws 221; Act of
July 11, 1912, No. 213, 14, 1912 La. Acts 447, 454; Act of June 3, 1890, ch.
381, 1890 Mass. Laws 342; Act of June 20, 1912, Ex. Sess. ch. 3, 7, 1912 Minn.
Laws 23, 26; Act of Apr. 21, 1906, S. B. No. 191, 1906 Miss. Gen. Laws 295
(enacting Miss. Code 3728 (1906)); Act of Apr. 9, 1917, 1, 1917 Mo. Laws 272,
273; Act of Nov. 1912, 35, 1912 Mont. Laws 593, 608; Act of Mar. 31, 1913, ch.
282, 34, 1913 Nev. Stats. 476, 486-487; Act of Apr. 21, 1915, ch. 169, 7, 1915
N. H. Laws 234, 236; Act of Apr. 20, 1911, ch. 188, 9, 1911 N. J. Laws 329,
334; Act of Mar. 12, 1913, ch. 164, 1(k), 1913 N.C. Sess. Laws 259, 261; Act of
May 27, 1915, 1915 Ohio Leg. Acts 350; Act of June 23, 1908, ch. 3, 35, 1909
Ore. Laws 15, 30; Act of June 26, 1895, No. 275, 1895 Pa. Laws 389; Act of Mar.
13, 1917, ch. 92, 23, 1917 Utah Laws 258, 267; Act of Mar. 12, 1909, ch. 82, 8,
1909 Wash. Laws 169, 177-178; Act of Feb. 20, 1915, ch. 27, 13, 1915 W. Va.
Acts 246, 255; Act of July 11, 1911, ch. 650, 94-14 to 94-16, 1911 Wis. Laws
 See Ala. Code 17-22A-13 (Supp. 1994); Alaska Stat.
Ann. 15.56.010 (1988); Ariz. Rev. Stat. Ann. 16-912 (Supp. 1994); Ark. Code
Ann. 7-1-103 (1993); Colo. Rev. Stat. 1-13-108 (Supp. 1994); Conn. Gen. Stat.
9-333w (Supp. 1994); Del. Code Ann., Tit. 15, [514 U.S. 334, 340] 8021, 8023 (1993); Fla. Stat.
106.143 and 106.1437 (1992); Ga. Code Ann. 21-2-415 (1993); Haw. Rev. Stat.
11-215 (1988); Idaho Code 67-6614A (Supp. 1994); Ill. Comp. Stat. 5/29-14
(1993); Ind. Code 3-14-1-4 (Supp. 1994); Iowa Code 56.14 (1991); Kan. Stat.
Ann. 25-2407 and 25-4156 (Supp. 1991); Ky. Rev. Stat. Ann. 121.190 (Baldwin
Supp. 1994); La. Rev. Stat. Ann. 18:1463 (West Supp. 1994); Me. Rev. Stat.
Ann., Tit. 21-A, 1014 (1993); Md. Ann. Code, Art. 33, 26-17 (1993); Mass. Gen.
Laws 41 (1990); Mich. Comp. Laws Ann. 169.247 (West 1989); Minn. Stat. 211B.04
(1994); Miss. Code Ann. 23-15-899 (1990); Mo. Rev. Stat. 130.031 (Supp. 1994);
Mont. Code Ann. 13-35-225 (1993); Neb. Rev. Stat. 49-1474.01 (1993); Nev. Rev.
Stat. 294A.320 (Supp. 1993); N. H. Rev. Stat. Ann. 664:14 (Supp. 1992); N. J.
Stat. Ann. 19:34-38.1 (1989); N. M. Stat. Ann. 1-19-16 and 1-19-17 (1991); N.
Y. Elec. Law 14-106 (McKinney 1978); N.C. Gen. Stat. 163-274 (Supp. 1994); N.
D. Cent. Code 16.1-10-04.1 (1981); Ohio Rev. Code Ann. 3599.09(A) (1988); Okla.
Stat., Tit. 21, 1840 (Supp. 1995); Ore. Rev. Stat. 260.522 (1991); 25 Pa. Cons.
Stat. 3258 (1994); R. I. Gen. Laws 17-23-2 (1988); S. C. Code Ann. 8-13-1354
(Supp. 1993); S. D. Comp. Laws Ann. 12-25-4.1 (Supp. 1994); Tenn. Code Ann.
2-19-120 (Supp. 1994); Tex. Elec. Code Ann. 255.001 (Supp. 1995); Utah Code
Ann. 20-14-24 (Supp. 1994); Vt. Stat. Ann., Tit. 17, 2022 (1982); Va. Code Ann.
24.2-1014 (1993); Wash. Rev. Code 42.17.510 (Supp. 1994); W. Va. Code 3-8-12
(1994); Wis. Stat. 11.30 (Supp. 1994); Wyo. Stat. 22-25-110 (1992).
Courts have declared some of these laws unconstitutional in recent years,
relying upon our decision in Talley v. California,
U.S. 60 (1960). See, e.g., State v. Burgess, 543 So.2d 1332 (La. 1989);
State v. North Dakota Ed. Assn., 262 N. W. 2d 731 (N. D. 1978); People v.
Duryea, 76 Misc. 2d 948, 351 N. Y. S. 2d 978 (Sup.), aff'd, 44 App. Div. 2d
663, 354 N. Y. S. 2d 129 (1974). Other decisions, including all pre-Talley
decisions I am aware of, have upheld the laws. See, e.g., Commonwealth v.
Evans, 156 Pa. Super. 321, 40 A. 2d 137 (1944); State v. Freeman, 143 Kan. 315,
55 P.2d 362 (1936); State v. Babst, 104 Ohio St. 167, 135 N. E. 525 (1922).
 It might be accurate to say that, insofar as the
judicially unconstrained judgment of American legislatures is concerned,
approval of [514 U.S. 334, 341]
the law before us here is universal. California, although it had enacted an
election disclosure requirement as early as 1901, see Act of Mar. 15, 1901, ch.
138, 1, 1901 Cal. Stats. 297, abandoned its law (then similar to Ohio's) in
1983, see Act of Sept. 11, 1983, ch. 668, 1983 Cal. Stats. 2621, after a
California Court of Appeal, relying primarily on our decision in Talley, had
declared the provision unconstitutional, see Schuster v. Imperial County
Municipal Court, 109 Cal. App. 3d 887, 167 Cal. Rptr. 447 (1980), cert. denied,
U.S. 1042 (1981). Page I.