State v. Petersilie

Justice MITCHELL

dissenting.

The majority errs in its conclusion that N.C.G.S. § 163-274(7) is a constitutionally permissible restriction on free expression. Although I agree that the State has an interest in preserving the integrity of the electoral process by promoting openness, honesty and fairness in the conduct of elections, I reject the majority’s conclusion that this interest justifies the limitations on First Amendment rights imposed by this statute.

The statute at issue in the present case makes it a criminal offense punishable by imprisonment “[f]or any person to publish *197in a newspaper or pamphlet or otherwise, any charge derogatory to any candidate or calculated to affect the candidate’s chances of nomination or election, unless such publication be signed by the party giving publicity to and being responsible for such charge.” N.C.G.S. § 163-274(7) (1991). The statute prohibits anonymous exposure in a public forum of truthful information about public figures. Therefore, it is a restriction on pure political expression which forms the innermost core of protected free speech. I have grave reservations as to whether, consistent with the First Amendment, any public purpose can justify such a limitation on pure political expression; I am convinced that the state interest advanced in the present case is insufficient to sustain the statute against this First Amendment challenge. Further, the definition that the majority has given the word “charge” as used in the statute, to include only accusations1 of wrongdoing, guilt or blame, causes the statute to be an even more impermissible denial of First Amendment rights.

The majority acknowledges that the statute plainly places a restriction on publications which convey truthful information to the public about important public issues — the election of public officials. Such publications constitute pure political expression which is protected by the most basic tenets of the First Amendment to the Constitution of the United States.

In N.A.A.C.P. v. Claiborne Hardware Co., the Supreme Court of the United States emphasized the importance of free debate of such public issues:

This Court has recognized that expression on public issues “has always rested on the highest rung of the hierarchy of First Amendment values.” Carey v Brown, 447 US 455, 467, 65 L Ed 2d 263, 100 S Ct 2286. “[S]peech concerning public affairs is more than self-expression; it is the essence of self-government.” Garrison v Louisiana, 379 US 64, 74-75, 13 L Ed 2d 125, 85 S Ct 209. There is a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” New York Times Co. *198v Sullivan, 376 US 254, 270, 11 L Ed 2d 686, 84 S Ct 710, 95 ALR2d 1412.

458 U.S. 886, 913, 73 L. Ed. 2d 1215, 1236 (1982). As a result of this “profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open,” the Supreme Court has held that even false charges, when made in relation to a public figure and without knowledge of or reckless disregard for the statement’s falsity, are protected by the First Amendment. Hustler Magazine v. Falwell, 485 U.S. 46, 56, 99 L. Ed. 2d 41, 52-53 (1988); see also New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686 (1964). The Supreme Court has done so because “erroneous statement is inevitable in free debate, ... it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need ... to survive.’ ” Sullivan, 376 U.S. at 271-72, 11 L. Ed. 2d at 701 (quoting N.A.A.C.P. v. Button, 371 U.S. 415, 433, 9 L. Ed. 2d 405, 418 (1963)). This nation is committed “to the principle that debate on public issues should be uninhibited, robust and wide-open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.” Id. at 270, 11 L. Ed. 2d at 701.

James Madison emphasized the importance of unrestricted freedom of expression concerning candidates for public office when he stated the following in his Report on the Virginia Resolutions;

“Let it be recollected, lastly, that the right of electing the members of the government constitutes more particularly the essence of a free and responsible government. The value and efficacy of this right depends on the knowledge of the comparative merits and demerits of the candidates for public trust, and on the equal freedom, consequently, of examining and discussing these merits and demerits of the candidates respectively.”

Sullivan, 376 U.S. at 275 n.15, 11 L. Ed. 2d at 703 n.15 (quoting 4 Elliot’s Debates on the Constitution 575 (1876)). The Supreme Court of the United States also has recognized the importance of the right to freely discuss candidates for political office:

[D]ebate on the qualifications of candidates [is] integral to the operation of the system of government established by our Constitution. ... In a republic where the people are sovereign, the ability of the citizenry to make informed choices among *199candidates for office is essential,- for the identities of those who are elected will inevitably shape the course that we follow as a nation.

Buckley v. Valeo, 424 U.S. 1, 14-15, 46 L. Ed. 2d 659, 685 (1976) (per curiam). “Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs. This of course includes discussions of candidates.” Mills v. Alabama, 384 U.S. 214, 218, 16 L. Ed. 2d 484, 488 (1966). “ ‘It can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.’ ” Buckley, 424 U.S. at 14-15, 46 L. Ed. 2d at 685 (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272, 28 L. Ed. 2d 35, 41 (1971)) (emphasis added).

The right to anonymity has long been recognized in this country as a necessary component of the constitutional rights of free speech and a free press. In Talley v. California, the Supreme Court of the United States stressed that “[a]nonymous 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 anonymously or not at all.” 362 U.S. 60, 64, 4 L. Ed. 2d 559, 563 (1960). Even before the Revolutionary War, many authors in England, including such well-known authors as Defoe, Swift, and Johnson, published anonymous pamphlets criticizing political affairs. Notes and Comments, The Constitutional Right to Anonymity: Free Speech, Disclosure and the Devil, 70 Yale L. Rev. 1084, 1085 (1961) (citing Courtney, The Secrets of Our National Literature 151-77 (1908)). By the time the First Amendment to the Constitution of the United States was proposed by Congress in 1789, anonymously published political criticisms were a familiar source of information.2 Id. Both before and after the First Amendment became effective on 15 December 1791, the founders of this country often were compelled to exercise their *200right to criticize governmental officials anonymously. “[BJetween 1789 and 1809 no fewer than six presidents, fifteen cabinet members, twenty senators, and thirty-four congressmen published political writings either unsigned or under pen names.” Id. (citing 4 Beveridge, The Life of Marshall, 313-19 (1919)). Anonymous publications of that time included the following: The Federalist Papers, written by Alexander Hamilton, James Madison, and John Jay, which were originally published as letters to the editor and signed “Publius”; The Letters of Pacificus, written by Hamilton in defense of Washington’s proclamation of neutrality, and Madison’s responding Letters of Helvidius; and anonymous exchanges between Chief Justice Marshall, writing as “a friend to the Republic” and in defense of Supreme Court decisions, and Spencer Roane, who anonymously attacked certain Supreme Court decisions. Id. The Justices of the Supreme Court of the United States have demonstrated their firm grasp of such historical facts when repeatedly concluding that regulations requiring the disclosure of a speaker’s identity are restrictions on the exercise of the right to free speech. E.g., Hynes v. Mayor of Oradell, 425 U.S. 610, 628-29, 48 L. Ed. 2d 243, 258 (1976) (Brennan, J., concurring) (“Restraints implicit in identification requirements, ... extend beyond restrictions on time and place — they chill discussion itself.”); Talley, 362 U.S. at 64, 4 L. Ed. 2d at 563 (“There can be no doubt that such an identification requirement would tend to restrict freedom to distribute information and thereby freedom of expression.”); see Bates v. City of Little Rock, 361 U.S. 516, 523, 4 L. Ed. 2d 480, 485 (1960) (“ ‘It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute [an] effective . . . restraint on freedom of association.’” (quoting N.A.A.C.P. v. Alabama ex rel. Patterson, 357 U.S. 449, 462, 2 L. Ed. 2d 1488, 1499 (1958))).

The type of communications restricted by N.C.G.S. § 163-274(7) — anonymous publications of “any charge derogatory to any candidate or calculated to affect the candidate’s chances of nomination or election” — encompasses both true statements and honest misstatements of fact relating to public figures. Both of these types of statements are forms of core political expression which are entitled to the greatest protection provided by the First Amendment. The statute’s requirement that “the party giving publicity to and being responsible for” such publications always either “sign” them or face imprisonment for failure to do so undoubtedly will prevent many individuals from exercising their constitutionally *201protected right to attack a candidate with the truth.3 Furthermore, in addition to the deterrent effect of a disclosure requirement on the exercise of protected core political expression, “[m]andating speech that a speaker would not otherwise make necessarily alters the content of the speech.” Riley v. National Federation of the Blind, 487 U.S. 781, 797, 101 L. Ed. 2d 669, 689 (1988). Both because N.C.G.S. § 163-274(7) chills the exercise of protected free expression and because it mandates the content of such expression, this statute is subject to “exacting First Amendment scrutiny.” Id. at 797-98, 101 L. Ed. 2d at 690; Buckley v. Valeo, 424 U.S. at 18, 46 L. Ed. 2d at 687.

The statute at issue here, among other things, makes it a criminal offense punishable by imprisonment for any person to publish a completely truthful charge against any candidate for nomination or election to office, unless the person signs the publication. N.C.G.S. § 163-274(7) (1991). As authoritatively construed by the majority, the statute does not prohibit anonymous publications praising candidates or otherwise not amounting to a charge of wrongdoing or an imputation of guilt or blame. Therefore, under any recognized constitutional test, the challenged statute is a content-based restriction on pure political expression in a public forum. See, e.g., Boos v. Barry, 485 U.S. 312, 99 L. Ed. 2d 333 (1988); Laurence H. Tribe, American Constitutional Law, § 12-2 (2d ed. 1988); Melville B. Nimmer, Nimmer on Freedom of Speech; A Treatise on the First Amendment § 2.04 (1984 & Supp. 1992); Susan H. Williams, Content Discrimination and the First Amendment, 139 U. Pa. L. Rev. 615 (1991). Accordingly, the statute “must be *202subjected to the most exacting scrutiny.” Boos v. Barry, 485 U.S. at 321, 99 L. Ed. 2d at 345. The State must bear the burden of showing that the “ ‘regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.’ ” Burson v. Freeman, 504 U.S. —, —, 119 L. Ed. 2d 5, 14 (1992) (plurality opinion) (quoting Perry Education Ass’n. v. Perry Local Educators’ Ass’n., 460 U.S. 37, 45, 74 L. Ed. 2d 794, 804 (1983)). The Supreme Court of the United States has expressly emphasized that “it is the rare case in which ... a law survives strict scrutiny.” Id. at —, 119 L. Ed. 2d at 22. This is no such “rare case.”

In Burson v. Freeman, the Supreme Court of the United States recognized that it has “upheld generally applicable and evenhanded restrictions that protect the integrity and reliability of the electoral process itself.” Id. at —, 119 L. Ed. 2d at 15 (quoting Anderson v. Celebrezze, 460 U.S. 780, 788, n.9, 75 L. Ed. 2d 547, 557-58, n.9 (1983)). The statute under challenge in the present case, however, clearly is neither generally applicable nor evenhanded. As construed by the majority, the statute prohibits anonymous publication of truthful charges against a candidate, but does not reach the anonymous publication of untruthful praise for a candidate. Surely this statute cannot be an example of the sort of “generally applicable and evenhanded restrictions” protecting the integrity of the electoral process which the Supreme Court of the United States finds constitutionally acceptable.

In Burson, a decision relied upon by the majority here, the Supreme Court of the United States upheld a statute forbidding political campaigning at polling places on election day. In doing so, however, the plurality opinion for the Court expressly emphasized that the Court’s “examination of the evolution of election reform, both in this country and abroad, demonstrates the necessity of restricted areas in or around polling places.” Id. at —, 119 L. Ed. 2d at 15. It is clear to me that no similar demonstration of necessity for the restrictions embodied in the statute under attack here has been or could be made.

In my view, the State has made nothing remotely approaching a showing in the present case that the statute at issue is necessary to serve a compelling state interest or that it is narrowly drawn to achieve that end. Instead, it is apparent to me that the statute in question, which prohibits anonymous but truthful charges against political candidates, falls within the class of statutes properly deemed *203by the Supreme Court to be an “obvious and flagrant abridgement” of the rights guaranteed by the First Amendment. Mills v. Alabama, 384 U.S. at 219, 16 L. Ed. 2d at 488.

I agree that the State has a compelling interest in maintaining the integrity of the electoral process and in encouraging openness, honesty and fairness in elections. This state interest itself is grounded in one of the First Amendment’s most fundamental purposes: to encourage unfettered discussion on the qualifications of candidates for public office in order to enable the citizenry to make informed choices among candidates. See Buckley v. Valeo, 424 U.S. at 14-15, 46 L. Ed. 2d at 685. However, the burdensome restrictions4 of N.C.G.S. § 163-274(7) are not “necessary” to serve that interest and most certainly are not “narrowly drawn to achieve that end.” The statute unconstitutionally tramples on the right to publish anonymously and, thus, freely on issues of public concern.

The State acknowledges in its brief before this Court that the purpose of the statute is to eliminate “the opportunity for *204a person to remain hidden while disseminating derogatory material about a specific candidate.” The State argues, and the majority of this Court agrees, that such a limitation is necessary, because a voter who reads anonymous, derogatory publications regarding a candidate “has no context within which to evaluate the bias of the source of anonymous information,” and because “the candidate has no opportunity fully to rebut such material by showing the motives of the sender.” The essence of the argument is that the statute in question will encourage openness in the election process by requiring that additional information — the identity of the publisher of any charge concerning a candidate for public office— be submitted to the voters. This argument fails to recognize the obvious and undeniable fact that the disclosure requirement will prevent many individuals from making truthful and highly relevant statements crucial to the public’s ability to judge the qualifications of candidates for public office.5 Rather than being necessary to encourage openness, honesty and fairness in the electoral process, the criminal statute at issue here frustrates those goals by reducing the amount of relevant truthful information about candidates for public office that will reach the voting public. Absent the right to criticize a candidate anonymously, some truthful messages “may never enter the marketplace of ideas at all.” Kreimer, 140 U. Pa. L. Rev. at 87.

The statute as construed by the majority here will deter many individuals from publishing negative facts about a candidate which are clearly true and relevant to that candidate’s fitness for public office. The State acknowledges that the statute has such an effect and even suggests that it is a desirable effect. The State points out in its brief before this Court that “disparaging and belittling material about a particular candidate may often be true; its very truthfulness can make it more derogatory and hurtful than lies.” Although perhaps an accurate analysis, this is all the more reason *205why it is crucial to the openness and honesty of elections to give such information to the voting public. The truthful information will be harmful only if the voting public deems the information relevant to a candidate’s fitness for office, and the public must have such information in order to make an informed selection at the polls. Rather than damaging the integrity of the electoral process, access to truthful but anonymous charges concerning a candidate clearly promotes that integrity by providing the public with more complete information about the candidate.

Despite the fact that the statute restricts individuals wishing to publish truthful but anonymous charges about political candidates and, thereby, places a limitation upon their exercise of First Amendment rights, the State has offered no evidence in support of its contention that disclosure of the author’s identity is necessary to enable voters to evaluate the reliability or weight to be given such charges. One commentator, citing several studies indicating that voters are not at all subject to being so easily misled, has concluded, to the contrary, that “[i]t seems unlikely that our media-saturated electorate will be duped, into self-destruction by nefarious forces” which are concealing their identities. Kreimer, 140 U. Pa. L. Rev. at 88.

The State has not shown that voters are more easily misled by anonymous statements than by statements which are attributed. However, even if it is assumed that voters are more likely to be misled by anonymous statements, the statute as interpreted by the majority permits an individual to make laudatory anonymous statements about a candidate freely. Therefore, the statute results in “viewpoint discrimination” and unquestionably is a “content-based” regulation of expression. R.A.V. v. St. Paul, 505 U.S. —, 120 L. Ed. 2d 305 (1992). “The First Amendment generally prevents government from proscribing speech . . . because of disapproval of the ideas expressed. Content-based regulations are presumptively invalid.” Id. at —, 120 L. Ed. 2d at 317 (emphasis added). Therefore, for example, “the government may proscribe libel; but it may not make the further content discrimination of proscribing only libel critical of the government. Id. at —, 120 L. Ed. 2d at 318. The State has offered no evidence showing that false anonymous statements praising a particular candidate are less damaging to the integrity of the electoral process than the truthful “charges” of wrongdoing by a candidate which are made imprisonable offenses by the statute. Indeed, it is inconceivable that any such *206showing could be made. See id. The State has failed utterly to establish a rational basis for these distinctions under the statute, and it most certainly has failed to overcome the presumption of the invalidity of this content-based statute by making the required showing that such discrimination is necessary to insure open and fair elections and narrowly drawn to reach that end.

The State also has failed to show that disclosure of the author’s identity is necessary to enable candidates to refute false statements. A candidate can rebut allegations contained in negative campaign material without knowing the identity of the author of that material. Furthermore, although the candidate may have difficulty showing the bias of an unidentified author, the fact that the author of a statement is unwilling to reveal his or her identity in itself serves to put every recipient of voting age on notice that the statement may be less believable than one which has been signed.

Finally, none of the State’s purported justifications for the statute at issue explain why a requirement that truthful publications be signed is necessary to promote openness, honesty and fairness in the electoral process. It would seem that anonymous but truthful and relevant information about the candidates would promote rather than detract from that goal. The State has not shown that the criminal penalties imposed by N.C.G.S. § 163-274(7) are either “necessary” to promote any compelling interest or “narrowly drawn” to achieve any such end. To the contrary, the statute’s requirements are “prophylactic, imprecise, and unduly burdensome.” Riley v. National Federation of the Blind, 487 U.S. at 800, 101 L. Ed. 2d at 691.

In sum, the type of “danger” presented by the publication of a truthful anonymous statement about a candidate for public office which is an imprisonable criminal offense under the statute at issue “ ‘is precisely one of the types of activity envisioned by the Founders in presenting the First Amendment for ratification.’ ” Landmark Communications v. Virginia, 435 U.S. 829, 845, 56 L. Ed. 2d 1, 14 (1978) (quoting Wood v. Georgia, 370 U.S. 375, 388, 8 L. Ed. 2d 569, 579 (1962)). The statute criminalizes protected “core” or fundamental political expression of a type which cannot be prohibited and thereby violates the guarantees of the First Amendment to the Constitution of the United States.

Additionally, and of equal constitutional importance, this statute permits the imprisonment of a person solely because of the content *207of his or her anonymous publications criticizing a candidate. As authoritatively construed by the majority of this Court, the statute would permit a person to anonymously praise a candidate with impunity even if the praise is false. This criminal statute prohibiting anonymous expression about a candidate on the ground that its content includes a charge against the candidate is directly contrary to the principles of the First Amendment as quite clearly interpreted by a majority of the Supreme Court of the United States. R.A.V. v. St. Paul, 505 U.S. ---, 120 L. Ed. 2d 305.

Until today, I thought that no reasonable lawyer or judge would have imagined that a statute such as the one in question here could possibly pass First Amendment scrutiny. Obviously, I was wrong in this regard as my colleagues on this Court ordinarily are reasonable people.

Before the majority upholds this statute allowing defendants to be imprisoned for publishing political pamphlets such as those at issue in the present case, it would do well to recall the following words of James Madison, who understood as well as anyone ever has the evils which led to the adoption of the First Amendment:

Some degree of abuse is inseparable from the proper use of every thing, and in no instance is this more true than in that of the press.
It has accordingly been decided . . . that it is better to leave a few of its noxious branches to their luxuriant growth, than by pruning them away, to injure the vigor of those yielding the proper fruits.

Renwick v. News and Observer, 310 N.C. 312, 326, 312 S.E.2d 405, 413, cert. denied, 469 U.S. 858, L. Ed. 2d 121 (1984) (quoting 4 Elliot’s Debates on the Constitution 571 (1876 Ed.)). I am convinced that Madison and the other founders of our nation believed that the First Amendment was adopted to prohibit the enactment of statutes precisely such as the one which the majority of this Court declares constitutionally acceptable in the present case.

The decision of the majority to uphold this flagrant violation of the First Amendment opens a sad chapter in the history of this Court. I can only pray that this chapter and the inevitable harm that will result to this State’s people and their government will be brief.

*208For the foregoing reasons, I respectfully dissent from the decision of the majority.

. The decision as to whether a publication is such an accusation and, thus, a “charge” will still lie in the eye of the beholder of the statement. Is a statement that a candidate is a “practicing heterosexual” or a statement that a candidate is a “known” communist a negative statement of the type amounting to a “charge” within the meaning of the statute? I leave such questions to the majority.

. In Talley, the Supreme Court of the United States noted that “[bjefore the Revolutionary War colonial patriots frequently had to conceal their authorship or distribution of literature that easily could have brought down on them prosecutions by English-controlled courts. Along that time the Letters of Junius were written and the identity of their author is unknown to this day.” 362 U.S. at 65, 4 L. Ed. 2d at 563.

. Regardless of whether such fears are well founded, everyone who is not somnambulant knows that many citizens fear reprisals if they openly criticize those having positions of power over them. In his concurring opinion in Hynes v. Mayor of Oradell, 425 U.S. 610, 626, 48 L. Ed. 2d 243, 256 (1976), Justice Brennan noted that “Deplorably, apprehension of reprisal by the average citizen is too often well founded. The national scene in recent times has regrettably provided many instances of penalties for controversial expression in the form of vindictive harassment, discriminatory law enforcement, executive abuse of administrative powers, and intensive government surveillance.” Another commentator has noted that “public identification with the unorthodox may bring with it substantial . . . pressures. Moreover, a citizen with a prudent concern for the future and a knowledge of history may feel these pressures even in times of relative tolerance.” Seth F. Kreimer, Sunlight, Secrets and Scarlet Letters: The Tension Between Privacy and Disclosure in Constitutional Law, 140 U. Pa. L. Rev. 1, 87 (1991). As an example, Professor Kreimer refers to the recent successful use of the description “card carrying member of the ACLU” as an epithet in political discourse.

. The restrictions at issue in the present case are significantly more burdensome than the individual disclosure requirement upheld in Buckley v. Valeo, 424 U.S. 1, 46 L. Ed. 2d 659 (1976). As construed, the regulation at issue in Buckley required individuals who were not candidates or political committees to report expenditures only when (1) they made contributions, in excess of $100, earmarked for political purposes or authorized or requested by a candidate or his agent, to some person other than a candidate or political committee; or (2) they made expenditures, in excess of $100, for communications that expressly advocated the election or defeat of clearly identified candidates. 424 U.S. at 80, 46 L. Ed. 2d at 722-23. The Court upheld this regulation on the basis that it furthered the governmental interests of stemming corruption in the election process and in disclosing candidates’ supporters to the voters.

In the present case, the State asserts neither of the interests present in Buckley in support of N.C.G.S. § 163-274(7). Additionally, the Buckley regulation applied only to expenditures in excess of $100 either made at the behest of a candidate or used for communications “that expressly advocated the election or defeat of a clearly identified candidate.” See 424 U.S. at 44 n.52, 46 L. Ed. 2d at 702 n.52 (Court held that this construction was necessary to prevent the statute’s being unconstitutionally vague; restricts application of statute to communications containing express words of advocacy of election or defeat). The regulation at issue in the present case applies to any person publishing any derogatory “charge” or any “charge . . . calculated to affect the candidate’s chances of nomination or election,” regardless of the expense of the publication and regardless of whether the charge expressly advocates the election or defeat of the candidate. Furthermore, the regulation in Buckley did not require that communications be “signed” as does the regulation in the present case. See Riley v. National Federation of the Blind, 487 U.S. at 800-01, 101 L. Ed. 2d at 691-92 (requiring disclosure during communication itself is more burdensome than a requirement that a disclosure form be filed).

. The following is a hypothetical example of a statement concerning a candidate’s qualifications which might not be made as a result of the regulation at issue in the present case. Citizen X is an employee of Candidate Y and is aware that Y has participated in unethical practices. However, Y is a powerful member of the community and could effectively prevent X from finding other employment in the community. X fears losing her job if she openly criticizes Y but is even more afraid that she will be subjected to a criminal prosecution if she sends an anonymous letter or publishes some other form of anonymous communication truthfully describing Y’s unethical conduct. X remains silent, and the voters elect Y without being aware of Y’s unethical conduct.