Op. Atty. Gen. 82t ( 1997 )

FAIR CAMPAIGN PRACTICES ACT: DISCLAIMER: VIOLATIONS: 'I``he prohibition
against anonymous campaign material in Minn. Stat. §§ 211B.04(a) and (b) (1996) is clearly
unconstitutional under controlling U.S. Supreme Court precedent.
szt
(cr. Ref. 627£-2)
August 27, 1997
Donald H. Spartz
Le Sueur County Attorney
65 South Park Avenue
PO Box 156
Le Center, MN 56057-1056
Dear Mr. Spartz:
In your letter to Attomey General Hubert H. Hurnphrey III, you present substantially the
following:
FACTS
The Montgomery-Lonsdale School District held a school board election on May 20,
1997. A leaflet apparently promoting the candidacy of a write-in candidate for school board was
disseminated to school district residents several days prior to the election. The leaflet did not
identify the person or committee who prepared and paid for the leaflet.
In relevant part, Minn. Stat. §§ 211B.04(a) and (b) (1996) makes it a misdemeanor for
“[a] person who participates in the preparation or dissemination of campaign material” to omit
from such material:
the name and address of the person or committee causing the material to be
prepared or disseminated in a disclaimer substantially in the form provided in
paragraph (b) . - .-
(b) . . . the required form of disclaimer is: “Prepared and paid for by the
committee, (address),” for material prepared and
paid for by a principal campaign committee, or “Prepared and paid for the by the
committee, in support of (insert name of
candidate or ballot question)” for material prepared and paid for by a person or
committee other than a principal campaign committee,
Donald H. Spartz
August 27, 1997
Page 2
“‘Campaign material”’ means any literature, publication, or material tending to influence
voting at a primary or other election, except for news items or editorial comments by the news
media.” Minn. Stat. § 211B.01, subd. 2 (1996).
You ask subsmriauy the following
QUESTION
Are the provisions of Minn. Stat. § 211B.O4 (1996) (a) and (b) prohibiting the preparation
or dissemination of anonymous written campaign material unconstitutional?
OPINION
We answer this question in the aHirmative. However, a more limited regulation of
anonymous campaign material may be constitutional.
We do not ordinarily undertake to determine the constitutionality of state statutes since
this oH``ice may deem it appropriate to intervene and defend challenges to the constitutionality of
statutes. Op. Atty. Gen. 629-a, May 9, 1975 . However, in the exceptional circumstance where
the United States Supreme Cotut has unambiguously decided the constitutionality of a statute
that cannot be fairly distinguished nom the statute at issue and an opinion on the
constitutionality of the statute would serve the public interest, we do not feel precluded from
addressing such an inquiry. §§ Op. Atty. Gen. 627-h, Aug. 28, 1989 (addressing
constitutionality of`` statute banning campaigning on election day). Such is the case here.
The constitutionality of Minn. Stat. § 211B.O4(a) and (b) is governed by Mglngg_e_v_‘
tho_Ele_cjigns__C_Qmmi§sjgn, 514_L_I.S. 334, _, 115 S. Ct. 1511 (1994). In Mclnm;, the
Supreme Court held unconstitutional an Ohio statute similar to sections 211B.04(a) and (b). lgL
at 1524. The challenged Ohio statute required a disclaimer for
a notice, placard, dodger, advertisement, sample ballot, or any other form of
general publication which is designed to promote the election or defeat of a
candidate, or to promote the adoption or defeat of any issue, or to influence the
voters in any election . . ..
ld. at 1514 n.3. Mrs. Mclntyre composed and printed on her home computer an anonymous
leaflet urging voters to reject a proposed school levy. ld. at 1514. She distributed copies to
persons attending a public meeting at the school about the upcoming referendum. ld. Aside
Donald H. Spartz
August 27, 1997
Page 3
from her son and a friend, who helped place some of the leaflets on car windshields in the school
parking lot, Ms. McIntyre acted independently. Igi_l A $19_0 fine was imposed on her by the Ohio
Elections Comrnission for distributing the unsigned leaflets. I_d4
In addressing the constitutionality of the Ohio disclaimer provision, the Supreme Court
characterized it as a regulation of “core political speech" that is protected by the First
Amendment. l¢ at 1518. Such a'law will be upheld “only if it is narrowly tailored to serve an
overriding state interest” ILL at 1519. Ohio had argued that the law is justified by the State’s
interest in (l) providing voters with relevant information and (2) preventing fraudulent and
libelous statements, Igi. However, the Court concluded that “[t]he simple interest i_n providing
voters with additional relevant information does not justify a state requirement that a writer make
statements or disclosures she would otherwise omit.” I¢ at 1520. The Court noted that the
State’s interest in preventing fraud and libel “carries special weight during election campaigns
when false statements, if credited, may have serious adverse consequences for the public at
large.” IgL However, the Ohio statute swept too broadly because
It applies not only to the activities of candidates and their organized supporters,
but also to individuals acting independently and using only their own modest
resources. It applies not only to elections of public oBicers, but also to ballot
issues that present neither a substantial risk of libel nor any potential appearance
of corrupt advantage. It applies not only to leaders distributed on the eve of an
election, when the opporttmity for reply is limited, but also to those distributed
months in advance. It applies no matter what the character or strength of the
author’s interest in anonymity.
ii at 1521-22 (footnote omitted). The Court concluded that “Ohio has not shown that its interest
in preventing the misuse of anonymous election-related speech justifies a prohibition of all uses
of that speech.” IgL at 1524.
We see no legal basis for fairly distinguishing Ohio’s disclaimer statute from Minnesota’s
disclaimer statute. Like the Ohio statute, the Minnesota disclaimer requirement is not narrowly
tailored to accomplish its purposes because it bans all anonymous campaign literature,
Furthermore, we see no factual or legal basis for justifying Minnesota's disclaimer requirement
Donald H. Spartz
August 27, 1997
Page 4
on grounds other than those advanced by Ohio. Following Mclntge, a number of other
disclaimer statutes similar to the Ohio and Minnesota statutes were invalidated by courts. S_e_e,
szg., S_t§&ar_d_v._'[a_ylgr, 953 F. Supp. 1047 (S.D. Ind. 1997);Le_s_tl1Lgm1an§_F_Q1-_]_,1[¢¢“_111§_1t
§mith, 960 F. Supp. 1036 (S.D.W. Va. 1996);llmn1LS_Q§_l§_t§LfQLHumanldm_L_C_aM,
906 F. Supp. 1071 (W.D.Va. 1995); S_l.&l$‘l._MQ§_¢_&, 655 So. 2d 779 (La. Ct. App. 1995). In
addition, a number of reported state Attomey General opinions have reached the same conclusion
about disclaimer statutes in other states. S_e_e, gg., Del. Op. Atty. Gen. 95-FB01, Sept. 29, 1995
(1995 WL 794524); Mich. Op. Atty. Gen. 6895, Apr. 8, 1996 (1996 WL 167418); Neb. Op. Atty.
Gen. 95039, May 15, 1995 (1995 WL 297245), and 'l``enn. Op. Atty. Gen. 95-090, Aug. 29, 1995
(1995 WL 520721).
We have carefully reviewed three other reported state Attomey General opinions which
concluded that the Mclmyr_e decision invalidated only some applications of the disclaimer
statute in that state rather than the entire statute. 239 Ala. Op. Atty. Gen. 37, May 15, 1995
(1995 WL 914515) (Mglntyr_e holding limited to individuals who distribute anonymous materials
in a non~candidate election); Md. Op. Atty. Gen. 95-015, May 16, 1995 (1995 WL 313052)
(Mglntyr_e applies only to anonymous literature prepared by individuals acting independently),
and Va. Atty. Gen. Op. Letter to M. Bruce Meadows, July 13, 1995 (Mglntyr_e does not apply to
disclaimer requirement in candidate elections). However, no reported court decision has
adopted this narrow interpretation of Mclnm_e. Furthermore, the reasoning of the Virginia
Attomey General was rejected by a federal district court that preliminarily enjoined enforcement
of the Virginia disclaimer statute as overbroad. Se_e C_aldwell, 906 F. Supp. 1074 n.9 and 1076.
Under the overbreadth doctrine,
an individual whose own speech or expressive conduct may validly be
prohibited or sanctioned is permitted to challenge a statute on its face because it
also threatens others not before the court-those who desire to engage in legally
protected expression but who may refrain from doing so rather than risk
prosecution or undertake to have the law partially invalidated.
Donald H. Spartz
August 27, 1997
Page 5
Bmkm§m;km&⋙slng, 472 U.S. 491, 503, 105 S. Ct. 2794, 2801 (1985). Ifthe
challenged statute is substantially overbroad, “the law may not be enforced against anyone,
including the party before the court, until it is narrowed to reach only unprotected activity,
whether by legislative action or by judicial construction or partial invalidation.” I¢ at 503-04,
105 S. Ct. at 2801-02 (citation omitted).
The broad language of the Minnesota disclaimer statute is not susceptible of a narrowing
construction because it plainly applies to all campaign literature regardless of who prepared it,
how it was prepared or the type of election for which it was prepared. Although an overbroad j
statute can sometimes be saved from being struck if the invalid parts are severable, the
disclaimer statute is written in a manner that makes it impossible to distinguish between
permissible and impermissible applications For these reasons, it is our opinion that sections
211B.O4(a) and (b) are clearly unconstitutionall
However, it should be noted that the First Amendment does not forbid all regulations of
campaign literature, The majority opinion and the concurring opinion by Justice Ginsburg in
Mclnme suggests that a more narrowly tailored disclaimer provision would be consistent with
the First Amendment. The majority opinion recognized that a State’s interest in enforcing
campaign prohibitions against false statements “might justify a more limited identification
requirement . . .” Mglngg§_, 115 S. Ct. at 1522. Justice Ginsburg, in her concurring opinion,
observed that the Comt’s decision does not “hold that the State may not in other, larger
circumstances, require the speaker to disclose its interest by disclosing its identity.” Id. at 1524
(Ginsburg, J., concurring). Furthermore, the Minnesota Court of Appeals has acknowledged
that the State may properly forbid campaign material prepared with reckless disregard of its
l Although a county attorney who is notified of an alleged violation of Chapter 211B is required
to institute a prosecution if there is probable cause to do so, Minn. Stat. § 2118.16, subd. 1
(1996), we have noted that the legislature could not have intended to require a county attorney to
initiate a futile prosecution under an unconstitutional statute, Op. Atty. Gen. 627-h, Aug. 28,
1989.
Donald H. Spartz
August 27, 1997
Page 6
truth or falsity. §tate_v,_hi_d_e, 554 N.W.2d 750, 754 (Minn. Ct. App. 1996). 'I``hus, the First
Amendment permits narrowly tailored regulation of anonymous campaign literature.2
Very truly yours,
HUBER'I`` H. HUMPHREY III
Attomey General
PETER M. ACKERBERG
Assistant Attomey General
AG:32438 vl
2 A proposal to narrow section 211B.04 was introduced in the 1997 Minnesota Legislature after a
bill that included it was vetoed in 1996. S_e_e, S.F. 708, § 35 (1997) and 1996 Minn. Laws,
ch. 441 § 45 (1996) (vetoed). The proposal would have permitted anonymous campaign
literature by an individual acting independently who spends less than $300 from her own
individual resources for campaign material more than 14 days before the election.