Talley v. California

1. Talley v. California • State law banned distribution of leaflets without identifying information (including banning pseudonymous distribution) • Majority found law to be unconstitutional (prior restraint?) despite state’s alleged interest in preventing fraud. • Why - how does such a law PREVENT people from expressing ideas? What 1A interest does Talley suggest there is in protecting anonymity? • Does McIntyre suggest others? • Is Justice Clark right that P ought to have to show some injury resulting from revealing identity or should we protect anonymity for its own sake?

2. McIntyre v. OEC –anonymity in the electoral context • Individual distributed unsigned leaflets advocating against proposed school tax levy; distribution violated Ohio law requiring publication promoting ballot issue be signed by the publisher (with address) • State interests underlying law: • Informing the electorate • Preventing fraudulent and libelous statements • SCT struck down the law: • Anonymity alone is not a reason to regulate speech (Talley) • Law affects the content of core political speech – Forced revelation of identity = forced content & the law also regulates only ballot initiatives • Use strict scrutiny to judge constitutionality • Application of strict scrutiny: • Interest in informed electorate is not enough to justify compelled revelation of identity • Interest in fraud/libel can be met with more direct regulations • Should we be more concerned w/ anonymity in electoral context? • Does Justice Scalia suggest what might be the “dark side” of anonymity? Is that a reason to regulate here?

3. Anonymity & Referenda – Doe v. Reed • Citizens submitted records request under the Wash. Pub. Records Act for names of signers re petition for a referendum to repeal law expanding rights of same-sex partners. Wash. Sec. of State, consistent with state law, indicated he would release the names. Group that circulated petition sought injunction blocking release of the info, claiming release of their names burdened their 1A rights. • SCT upheld disclosure based on state interest in maintaining electoral integrity (fraud or mistake). • State’s interest is sufficient • In general, disclosure does not burden petition signers rights but subjecting them to harassment or intimidation (as req’d in Buckley) • BUT on remand Ps can try to convince the DCT that they would be actually subject to such reprisal (in as-applied challenge) • Should petition signers re referenda be accorded more or less anonymity than people circulating ballot initiatives? • Did the Court issue a clear ruling or just split the baby on this one?