618 N.E.2d 152 (Ohio 1993), 92-1147, McIntyre v. Ohio Elections Comm.

Docket Nº:92-1147.
Citation:618 N.E.2d 152, 67 Ohio St.3d 391, 1993-Ohio-224
Opinion Judge:A. WILLIAM SWEENEY, J.
Party Name:McINTYRE, Appellant, v. OHIO ELECTIONS COMMISSION, Appellee.
Attorney:George Q. Vaile, Westerville, for appellant. George Q. Vaile, for appellant., Lee I. Fisher Attorney General, Robert A. Zimmerman and Patrick A. Devine, Assistant Attorneys General, for appellee.
Judge Panel:MOYER, C.J., and DOUGLAS, RESNICK, FRANCIS E. SWEENEY, Sr. and PFEIFER, JJ., concur. WRIGHT, J., dissents. WRIGHT, Justice, dissenting.
Case Date:September 22, 1993
Court:Supreme Court of Ohio

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618 N.E.2d 152 (Ohio 1993)

67 Ohio St.3d 391, 1993-Ohio-224

McINTYRE, Appellant,



No. 92-1147.

Supreme Court of Ohio.

September 22, 1993

Submitted June 1, 1993.


The requirement of R.C. 3599.09 that persons responsible for the production of campaign literature pertaining to the adoption or defeat of a ballot issue identify themselves as the source thereof is not violative of the right to free speech guaranteed by the First Amendment to the United States Constitution and Section 11, Article I of the Ohio Constitution.

On April 27, 1988, appellant, Margaret McIntyre, distributed flyers at Blendon Middle School in Westerville, Ohio, to attendees of a meeting held to discuss the Westerville school levy. The levy had been placed on the May 3, 1988 primary election ballot. Similar flyers were deposited upon the windshields of automobiles in the school parking lot by a relative of appellant and by another person. [67 Ohio St.3d 392] The leaflets generally expressed opposition by appellant to the school levy. Some of the flyers failed to include the name and address of appellant as the person who produced them. Appellant was apprised of the nonconformity of this campaign literature by J. Michael Hayfield, Assistant Superintendent of Elementary Education for the Westerville City School District. Nevertheless, on April 28, 1988, appellant distributed similar leaflets outside the Walnut Springs Middle School in Westerville.

On March 30, 1989, a complaint against appellant was filed with appellee, Ohio Elections Commission ("OEC"), charging her, inter alia, with violations of R.C. 3599.09--distribution of campaign literature without a proper disclaimer. On March 19, 1990, a hearing was held before the OEC. On March 30, 1990, appellee issued its decision finding appellant in violation of R.C. 3599.09, and fining her $100. On April 6, 1990, appellant instituted an appeal to the Franklin County Common Pleas Court. On October 2, 1990, the common pleas court reversed the decision of appellee, concluding that R.C. 3599.09 was unconstitutional as applied. On April 7, 1992, the Tenth District Court of Appeals reversed the trial court.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

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George Q. Vaile, Westerville, for appellant.

Lee I. Fisher, Atty. Gen., Robert A. Zimmerman and Patrick A. Devine, Asst. Attys. Gen., for appellee.


The present action involves the constitutionality of R.C. 3599.09 insofar as it requires the identification of the author of campaign literature. In this regard, R.C. 3599.09 provides in relevant part:

"(A) No person shall write, print, post, or distribute, or cause to be written, printed, posted, or distributed, a notice, placard, dodger, advertisement, sample ballot, or any other form of general publication which is designed to promote the nomination or 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 communication 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 [67 Ohio St.3d 393] therefor. * * * This section does not apply to the transmittal of personal correspondence that is not reproduced by machine for general distribution." (Emphasis added.)

It is the contention of appellant that the aforementioned restriction violates her right to free speech under Section 11, Article I of the Ohio Constitution, which provides in part:

"Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press."

In reversing the common pleas court, the court of appeals relied upon the holding of this court in State v. Babst (1922), 104 Ohio St. 167, 135 N.E. 525. The syllabus thereto provides:

"Section 13343-1, General Code, appearing in Part Four, Title I, Chapter 18, entitled 'Offenses Relating To Elections,' in its operation does not restrain or abridge the liberty of speech as guaranteed by Section 11, Article I, Bill of Rights, but is regulatory in nature, and intended to prevent abuse of the right."

G.C. 13343-1 is the predecessor to R.C. 3599.09 and does not differ from it to any material extent. Nevertheless, appellant questions the continued vitality of Babst in light of subsequent decisions by the United States Supreme Court interpreting the First Amendment to the United States Constitution. In particular, appellant relies upon Talley v. California (1960), 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559. In Talley, the court invalidated a city ordinance on the basis that its requirement that handbills contain the name and address of the person producing them was an unconstitutional infringement on the right to free speech. The handbills had as their purpose the organization of a consumer boycott of particular merchants who allegedly practiced racial discrimination. In concluding that the identification of the author of the handbill would run afoul of the First Amendment, the Talley court remarked:

"There can be no doubt that such an identification requirement would tend to restrict freedom to distribute information and thereby freedom of expression. 'Liberty of circulating is as essential to that freedom as liberty of publishing; indeed, without the circulation, the publication would be of little value.' Lovell v. Griffin, 303 U.S., at [444,] 452 [58 S.Ct. 666, 669, 82 L.Ed. 949, 954 (1938) ].

"Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either

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anonymously or not at all. The obnoxious press licensing law of England, which was also enforced on the Colonies was due in part to the knowledge that exposure of the names of printers, writers and distributors would [67 Ohio St.3d 394] lessen the circulation of literature critical of the government. The old seditious libel cases in England show the lengths to which government had to go to find out who was responsible for books that were obnoxious to the rulers. John Lilburne was whipped, pilloried and fined for refusing to answer questions designed to get evidence to convict him or someone else for the secret distribution of books in England. Two Puritan Ministers, John Penry and John Udal, were sentenced to death on charges that they were responsible for writing, printing or publishing books. Before the Revolutionary War colonial patriots...

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