Subject: Putting Safe in danger: constitutional implications
From: grady@gradyward.com (Grady Ward)
Date: Fri, 04 Jun 1999 20:46:00 GMT

I think Safe's dilemma is of constitutional proportion analogously to the unconstitutionality of forcing people to put their names on circulars. The copyright issue complicates it, but the cult *must* put forward a prima facie case and be approved at least initially by a judge, IMHO, to stay constitutional:

Municipal ordinance barring distribution of any handbills in any place under any circumstances which did not have printed on them names and addresses of persons who prepared, distributed, or sponsored them, abridged freedom of speech and press, since there could be no doubt that identification requirement would tend to restrict freedom to distribute information and thereby freedom of expression. Talley v California (1960) 362 US 60, 4 L Ed 2d 559, 80 S Ct 536.

For example, here is some discussion of this principle in Harvard Law Review, 11-1995 (109 Harv. L. Rev. 111):

...

The United States Supreme Court reversed by a vote of 7-2, holding Ohio's ban on anonymous leafletting unconstitutional as applied to Mrs. McIntyre. Justice Stevens, writing for the Court, n539 first saluted the importance of the "freedom to publish anonymously," n540 and then turned to identify the proper standard to apply to the statute at issue. He dismissed Ohio's attempt to categorize the statute as merely a regulation governing the "mechanics of the electoral process" and found instead that the law was a direct regulation of political speech, which "occupies the core of the protection afforded by the First Amendment." n541 Because the statute was content-based, covering only publications designed to influence voters in an election, Justice Stevens invoked strict scrutiny. n542

[FN]

n539. Justice Stevens was joined by Justices O'Connor, Kennedy, Souter, Ginsburg, and Breyer.

n540. McIntyre, 115 S. Ct. at 1516-17. Justice Stevens invoked a litany of authors - ranging from Cato and Publius to Voltaire and O. Henry - known or suspected to have published under pseudonyms. See id. at 1516 n.4, 1517 n.6. The reader should note that the Harvard Law Review maintains a policy of unsigned student writing.

n541. Id. at 1518.

n542. See id. at 1519. In Talley v. California, 362 U.S. 60 (1960), the Court had invoked strict scrutiny to find invalid on its face a statute that prohibited all anonymous handbilling. See id. at 60-61. Although obviously relevant, Talley was not directly on point because the statute in McIntyre targeted only "documents intended to influence the electoral process." McIntyre, 115 S. Ct. at 1518. Thus, as Justice Stevens conceded, the Court in Talley had no opportunity to weigh the state interests present in McIntyre: preventing electoral fraud and promoting an informed electorate. See id. at 1517-18.

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