Warner, 101717 WVAGO, AGO 101717

Docket Nº:AGO 101717
Case Date:October 17, 2017
Court:West Virginia
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...

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