The Honorable Mac Warner
AGO 101717
No. 101717
West Virginia Attorney General Opinions
State of West Virginia Office of the Attorney General
October 17, 2017
The
Honorable Mac Warner
Secretary
of State
West
Virginia Capitol Complex
Bldg.
1, Suite 157K
Charleston,
WV 25305
Dear
Secretary Warner:
You
have asked for an Opinion of the Attorney General regarding
the constitutionality of W. Va. Code § 3-8-12. This
Opinion is being issued pursuant to W. Va. Code § 5-3-1,
which provides that the Attorney General shall “give
written opinions and advice upon questions of law . . .
whenever required to do so, in writing, by . . . the
secretary of state . . . .” To the extent this Opinion
relies on facts, it is based solely upon the factual
assertions set forth in your correspondence with the Attorney
General’s Office.
You
explain that the Secretary of State’s office has
received several complaints concerning anonymous leaflets.
Those complaints have included requests that the Secretary of
State enforce § 3-8-12(a), which states that “a
person may not publish, issue or circulate, or cause to be
published, issued or circulated, any anonymous letter,
circular, placard . . . or other publication supporting or
aiding the election or defeat of a clearly identified
candidate.”
Your
letter raises the following legal question:
Does W. Va. Code § 3-8-12(a)’s prohibition on
anonymous leaflets violate the First Amendment?
This is
an issue of first impression that the United States Supreme
Court has not squarely addressed and that has caused some
confusion among federal courts of appeals. That said, we
conclude that, under a proper application of First Amendment
principles and a close reading of existing precedent, the
West Virginia law violates the First Amendment because it is
overbroad and not narrowly tailored to a compelling state
interest.
Relevant
Supreme Court Precedent
By its
terms, the First Amendment restricts laws that
“abridg[e] . . . the freedom of speech . . . .”
U.S. Const. Amend. I.
[1] It is well-established that this
amendment’s protections extend to the distribution of
political leaflets, pamphlets, handbills, and circulars.
Lovell v. City of Griffin, 303 U.S. 444, 452 (1938).
Indeed, “[t]here is no doubt that as a general matter
peaceful picketing and leafletting are expressive activities
involving ‘speech’ protected by the First
Amendment.” United States v. Grace, 461 U.S.
171, 176 (1983); Schenk v. Pro-Choice Network of W.
NY, 519 U.S. 357, 377 (1997) (“Leafletting and
commenting on matters of public concern are classic forms of
speech that lie at the heart of the First Amendment.”);
see also Woodruff v. Bd. of Trustees of Cabell Huntington
Hosp., 173 W. Va. 604, 609, 319 S.E.2d 372, 377 (1984)
(“[T]he distribution of leaflets is an activity
protected under constitutional free speech
guarantees.”).
[2]
In at
least two cases, the United States Supreme Court has
specifically affirmed that the First Amendment protects the
right to distribute pamphlets and leaflets
anonymously. In Talley v. California, 362
U.S. 60 (1960), the Supreme Court invalidated a Los Angeles
city ordinance that prohibited the distribution of anonymous
handbills “under any circumstances.”
Talley, 362 U.S. at 60. “There can be no
doubt,” the Court explained, “that [the]
identification requirement would tend to restrict freedom to
distribute information and thereby freedom of
expression.” Id. at 64. “Anonymous
pamphlets, leaflets, brochures and even books,” the
Court further noted, “have played an important role in
the progress of mankind.” Id.; see also
Van Hollen, Jr. v. Fed. Election Comm’n., 811 F.3d
486, 499 (D.C. Cir. 2016) (“The Supreme Court has
vigorously protected the public’s right to speak
anonymously . . .”) (citing Talley).
Of
particular relevance here, the Supreme Court struck down, in
McIntyre v. Ohio Elections Commission, 514 U.S. 334
(1995), a state law that prohibited the anonymous
distribution of leaflets in the context of a political
campaign. The Ohio statute at issue mandated the inclusion of
identifying information (e.g., the name and address
of the person responsible for the material being distributed)
on any “notice, placard, dodger . . . or any other form
of general publication” that was designed to
“promote the nomination or defeat of a candidate or
promote the adoption or defeat of any issue, or to influence
the voters in any election.” Id. at 338 n.3.
Relying on the principles first established in
Talley, the Supreme Court held that “an
author’s decision to remain anonymous, like other
decisions concerning omissions or additions to the content of
a publication, is an aspect of the freedom of speech
protected by the First Amendment.” Id. at 342.
Distinguishing a line of election law cases, the Court
explained that the challenged statute “d[id] not
control the mechanics of the electoral process,” but
rather was “a direct regulation of the content of
speech” in that it required certain identifying
information. Id.
[3] at 345. Indeed, “the speech in
which Mrs. McIntyre engaged—handing out leaflets in the
advocacy of a politically controversial viewpoint—is
the essence of First Amendment expression.”
Id. at 347.
Specifically,
the Supreme Court subjected the statute to
“exacting” review, a term the McIntyre
Court appeared to use synonymously with strict scrutiny.
See 514 U.S. at 346 (drawing the term
“exacting scrutiny” from Meyer v. Grant,
486 U.S. 414, 420 (1988)); id. at 346 n.10
(describing Meyer as a case in which the Court
“unanimously applied strict scrutiny”);
id. at 348 (applying “the strictest standard
of review”).
[4]
Applying
that level of scrutiny, the Court found the law to be
deficient. On the question of state interest, the Court
accepted that States have a legitimate interest in
“preventing fraud and libel” in the election
context. Id. at 348. Nevertheless, the
Court ultimately concluded that the “blunderbuss
approach” in the statute was overbroad for several
reasons. Id. at 357. First, “the
prohibition encompasses documents that are not even arguably
false or misleading.” Id. at 351.
Second, the law applied equally to “leaflets
distributed on the eve of an election” (when the
State’s interest in combating fraud is greatest,
because “the opportunity for reply is limited”)
as it did to “those distributed months in
advance.” Id. at 352. Third, the law
did not distinguish between publications discussing ballot
measures (which the Court viewed as less susceptible to
libelous attacks) and those involving express advocacy for or
against a candidate. Id. at 351-52. Fourth,
the Court noted that Ohio had failed to articulate why the
blanket ban on anonymous speech was preferable to the
alternative—and more narrowly-tailored—remedy of
enforcing the various provisions of its state law that
specifically prohibit fraudulent statements and/or
representations. Id. at 352-53; see also
id. at 350 (“Ohio’s prohibition of...
