People v. White
| Decision Date | 20 February 1987 |
| Docket Number | No. 62926,62926 |
| Citation | 107 Ill.Dec. 229,506 N.E.2d 1284,116 Ill.2d 171 |
| Parties | , 107 Ill.Dec. 229, 55 USLW 2484 The PEOPLE of the State of Illinois, Appellant, v. Margaret WHITE, Appellee. |
| Court | Illinois Supreme Court |
Neil F. Hartigan, Atty. Gen., Roma J. Stewart, Sol. Gen., Jill Wine-Banks, Mark L. Rotert, Nathan P. Maddox, Judith H. Schlessinger, Asst. Attys. Gen., Springfield, for plaintiff-appellant; Jill Wine-Banks, of counsel.
Harvey Grossman, Barbara P. O'Toole, Roger Baldwin Foundation of ACLU, Inc., David B. Johnson, Sidley & Austin, Chicago, for appellee.
Prior to the November 1984 election for the office of State's Attorney of White County, the defendant, Margaret White, allegedly distributed a leaflet urging voters not to support the incumbent, Thomas Sutton, and to instead write in the name of James R. Conley, Jr. The leaflet stated:
HOW TO WRITE IN A VOTE
WRITE OFFICE
[ ] MAKE SQUARE
PUT AN X IN SQUARE
LETS GET SUTTON OUT OF OFFICE
IT SHOULD LOOK LIKE THIS--
CLIP-TAKE TO POLLS
------------------------------------
STATES ATTORNEY
[/] JAMES R. CONLEY, JR
For distributing this leaflet without printing the name and address of the persons publishing and distributing it on the leaflet, the defendant was charged by information with violating section 29-14 of the Election Code (Ill.Rev.Stat.1983, ch. 46, par. 29-14). The circuit court of White County dismissed the charge on the ground that section 29-14 is unconstitutional under both the first amendment to the United States Constitution and article I, section 4, of the 1970 Illinois Constitution. The State's direct appeal to this court was allowed as a matter of right (87 Ill.2d R. 603).
Section 29-14 provides:
"Publication of political literature. Any person or group of persons, or any committee, firm, organization, association, league or other body publishing, circulating, or distributing any pamphlet, circular, handbill, advertisement or other political literature soliciting votes for or against any candidate for nomination or election to, or retention in, any public office or soliciting votes in support of or in opposition to any public question to be submitted for the ballot at an election which does not have printed thereon in plain type the name and address of the person or persons, or the names and business address of the committee, firm, organization, association, league or other body causing such matter to be published and distributed, the name of its chairman, director, manager or principal officer, as the case may be, and the name of its treasurer if a different person, shall be guilty of a Class A misdemeanor. If a political committee as defined in Article 9 has already filed its statement of organization with the State Board of Elections or with the county clerk, as the case may be, or is registered with the Federal Election Commission, it shall not be necessary to print the name of its chairman or its treasurer, or its address on political literature which it causes to be published and distributed, and the name of the political committee printed on the literature shall be sufficient. However this Section shall not apply to palm cards, tickets, premiums or similar campaign items which because of size or shape are not adaptable to printing of attribution of source thereon. Nothing in this Section shall be construed to apply to any matter published in any newspaper, magazine or journal recognized and circulating as such, which matter is published by such newspaper, magazine or journal on its own behalf and upon its own responsibility and for which it shall not charge or receive any compensation whatsoever, nor shall it apply to any publication issued by any legally constituted election official in the performance of his duties.
The attribution of source required by this Section shall be in addition to the notice required on political literature soliciting funds as prescribed by Section 9-9 of this Code." Ill.Rev.Stat.1983, ch. 46, par. 29-14.
In striking down this statute, the circuit judge relied on the United States Supreme Court's decision in Talley v. California (1960), 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559, and several State court cases following Talley. The defendant in Talley was convicted of violating an ordinance prohibiting the distribution of any handbill unless the name and address of the printer and distributor appeared on the face of the handbill. The Supreme Court, emphasizing both the historical and practical importance of anonymous political speech, held the ordinance unconstitutional on its face. Although the State had argued that the ordinance was intended to identify those responsible for fraud, false advertising and libel, the court noted that it was not so limited and reserved judgment on the validity of a law "limited to prevent these or any other supposed evils." 362 U.S. 60, 64, 80 S.Ct. 536, 538, 4 L.Ed.2d 559, 562.
The statute at issue in this case does not prohibit the anonymous distribution of all handbills and leaflets, but only "political literature soliciting votes for or against any candidate for nomination [,] election * * * or retention * * * [or] in support of or in opposition to any public question to be submitted for the ballot at an election." The question is whether this more restricted range of operation for the ban on anonymous speech is sufficient to avoid the constitutional infirmity of the ordinance in Talley.
In assessing the validity of a restriction on first amendment rights, the court must evaluate the "character and magnitude of the asserted injury" to the individual's rights, the strength and legitimacy of the "precise interests put forward by the State as justifications," and "the extent to which those interests make it necessary to burden" the individual's rights. (Anderson v. Celebrezze (1983), 460 U.S. 780, 789, 103 S.Ct. 1564, 1570, 75 L.Ed.2d 547, 558.) Significant encroachments on first amendment rights must survive "exacting scrutiny." (Buckley v. Valeo (1976), 424 U.S. 1, 64, 96 S.Ct. 612, 656, 46 L.Ed.2d 659, 713.) This means that the statute must further a "compelling" State interest (Brown v. Hartlage (1982), 456 U.S. 45, 53-54, 102 S.Ct. 1523, 1528-29, 71 L.Ed.2d 732, 741; NAACP v. Alabama (1958), 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488; Commonwealth v. Dennis (1975), 368 Mass. 92, 329 N.E.2d 706; State v. Fulton (La.1976), 337 So.2d 866), and the State " 'may not choose means that unnecessarily restrict constitutionally protected liberty' " (Anderson v. Celebrezze (1983), 460 U.S. 780, 806, 103 S.Ct. 1564, 1579, 75 L.Ed.2d 547, 568). As the Supreme Court has stated:
" 460 U.S. 780, 806, 103 S.Ct. 1564, 1579, 75 L.Ed.2d 547, 568.
The State maintains that because the prohibition on anonymous literature soliciting votes for or against candidates or public questions does not by its terms prohibit any speech, but only requires the speaker to own up his views, the statute places only a "negligible restraint" on free expression. The reason this position fails is that it is precisely the one the Supreme Court rejected in Talley. "There can be no doubt that such an identification requirement would tend to restrict freedom to distribute information and thereby freedom of expression." (Talley v. California (1960), 362 U.S. 60, 64, 80 S.Ct. 536, 538, 4 L.Ed.2d 559, 563). Although the ordinance at issue in Talley was not limited to banning anonymous political expression, the court specifically relied on the historical importance of such expression in striking it down:
(362 U.S. 60, 64, 80 S.Ct. 536, 538, 4 L.Ed.2d 559, 563.)
Anonymous political literature was a key weapon in the arsenal of colonial patriots and "[e]ven the Federalist Papers, written in favor of the adoption of our Constitution, were published under fictitious names." 362 U.S. 60, 65, 80 S.Ct. 536, 539, 4 L.Ed.2d 559, 563.
The effect of broadly compelling disclosure of the identities of persons expressing political views is "unconstitutional intimidation of the free exercise of the right to advocate" (NAACP v. Alabama (1958), 357 U.S. 449, 461, 78 S.Ct. 1163, 1171, 2 L.Ed.2d 1488, 1499). Persons harboring dissenting or unpopular political views, or even those merely advocating a quixotic write-in campaign, may risk economic reprisal, loss of employment, or other "manifestations of public hostility" (NAACP v. Alabama (1958), 357 U.S. 449, 462, 78 S.Ct. 1163, 1172, 2 L.Ed.2d 1488, 1500) if required to identify themselves. "[F]ear of reprisal might deter perfectly peaceful discussions of public matters of importance." Talley v. California (1960), 362 U.S. 60, 65, 80 S.Ct. 536, 539, 4 L.Ed.2d 559, 563.
By requiring identification of the speaker, section 29-14 plainly imposes a substantial restriction on the right to express political views. Under this statute even pure political advocacy, such as urging the public to "vote for Smith," is banned unless the author is identified. The State apparently regards the impairment as a minor one because it applies only to certain political literature, not to anonymous literature in general. This argument, though, overlooks the rationale for striking down the broader law in Talley, which was the importance of anonymous political speech. "[S]peech concerning public...
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