High Court Ruling Undercuts N. C. Law Aimed at Limiting Political Mudslinging
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IN THE CO URTS High Court Ruling Undercuts N. C. Law Aimed at Limiting Political Mudslinging by Katherine White In State v. Petersilie, the N.C. Supreme Court let law limiting political speech in the interest of stand a 60-year-old statute outlawing true but fairer campaigns. And the U.S. Supreme Court anonymous political speech. No recorded refer- ruling makes it harder for states to limit political ence to the statute is found in court documents mudslinging, a result which brought the court jeers until the Petersilie case, in which Frank Petersilie from a noted syndicated columnist at The Wash- was convicted in 1989 of distributing anonymous ington Post. campaign materials in a Boone Town Council "It is presumably not the purpose of the [U.S.] Race. There followed a raft of similar prosecu- Supreme Court to screw up the political process in tions under the law. In a ruling with great First this country more than it is already," political Amendment implications, Petersilie's conviction commentator David S. Broder wrote of the deci- was upheld by the state's highest court in a 1993 sion. "But if the learned justices had that intent, decision. Ultimately, the ruling was clouded by a they could not be doing a better job."2 U.S. Supreme Court ruling in an Ohio case. But But did the high court err in its ruling? Should the high court did not have the North Carolina proper decorum in political campaigns really take case before it, and it left enough room for the state precedenceover freespeech concerns? The an- to revisit the idea of regulation of political speech swer is, probably not-at least not in the case of in the future. While cleaning up vicious political State v. Petersilie. The U.S. Supreme Court ruling campaigns may have merit, the author reminds us means the state must find another vehicle in its there are also free speech issues to consider. quest for cleaner campaigns. Already, the search is underway. The North Carolina Supreme Court's decision, State v. tators often deride the current mudsling- Petersilie3 was reviewed by a 1994 study commis- ing, vicious attacks, and distortions in sion of the N.C. General Assembly as it consid- P manyoliticians, campaigns citizens, forand electoral news commen- offices ered ways of improving the quality of political and referendums. But such sentiments didn't get debate.' With the same purpose, state Sen. Wib much support from a recent decision of the U.S. Gulley (D-Durham) introduced a bill in the 1995 Supreme Court that called into question the con- session of the General Assembly that would have tinuing validity of a North Carolina statute gov- provided state funding for candidates who take a erning anonymous political speech. "standard of conduct" pledge for running clean In McIntyre v. Ohio,' the high court ruled that campaigns.' an Ohio statute prohibiting the distribution of And at least one North Carolina Supreme Court anonymous but truthful campaign literature was justice, despite the court's setback in Petersilie, unconstitutional because it violated the First Amendment's protection of political speech. The Katherine White, a regular Insight contributor, is a Raleigh April 19, 1995, decision may have effectively nul- lawyer specializing in First Amendment and communi- lified a North Carolina ruling that had let stand a cations issues. 74 NORTH CAROLINA INSIGHT remains sympathetic to establishing some ground constitutional under the First Amendment of the rules for campaigns. Justice Willis Whichard, a U.S. Constitution6 and Article I, Section 14 of the member of the 5-1 majority in the North Carolina North Carolina Constitution,' both of which guar- decision, says he understands the U.S. Supreme antee free speech for all citizens. Court's rationale in the McIntyre ruling-which Chief Justice James G. Exum, now retired, undercut State v. Petersilie. But Whichard, a former wrote for a majority of the state court that: `Be- state legislator, still wishes that some controls could cause the statute expressly regulates political be placed on negative campaigning. And Deputy speech, it is content-based.... We must give it Attorney General Charles Hensey believes the exacting scrutiny; and we must be satisfied that it North Carolina law is sufficiently different from the is necessary to serve the State's compelling inter- Ohio law to allow its continued use. est in having fair, honest elections."8 The N.C. That sentiment is not universal. For North Supreme Court concluded that the law was nar- Carolina Supreme Court Chief Justice Burley rowly tailored to serve the state's interest in fair Mitchell, the Petersilie court's sole dissenter, the elections and that the law did not infringe on United States Supreme Court resurrected North anyone's First Amendment rights of free speech. Carolina's long history of freewheeling and The North Carolina law makes it a misde- anonymous political campaigning and debate. meanor "for any person to publish in a newspaper The ruling also prompted a sigh of relief from or pamphlet or otherwise, any charge derogatory William Van Alstyne, a renowned scholar of the to any candidate or calculated to affect the First Amendment of the United States Constitution candidate's chances of nomination or election, and a professor in the Duke University School of unless such publication be signed by the party Law. Van Alstyne says the U.S. Supreme Court giving publicity to and being responsible for such ruled correctly in the McIntyre case, and the North charge."9 Ohio's version prohibited anonymous Carolina Court erred in its Petersilie decision. political campaign leaflets designed to "influence "Burley Mitchell has been vindicated in his lonely voters in any election."10 and solitary dissent," he says. Van Alstyne says that the North Carolina stat- In McIntyre, Justice John Paul Stevens wrote ute "is dead in the water" as a result of the McIntyre for the U.S. Supreme Court: "Under our Constitu- decision. It also affects 39 other state laws as well tion, anonymous pamphleteering is not a perni- as a similar act of Congress. cious, fraudulent practice, but an honorable tradi- The public outcry in North Carolina against tion of advocacy and of dissent. Anonymity is a perceived abuses of political speech, including the shield from the tyranny of the majority." cries of losing politicians in heated campaigns, Those words may have effectively nullified prompted the North Carolina General Assembly to the North Carolina Court's decision in July 1993. set up a 1994 study commission to look for ways to In Petersilie, the state Supreme Court upheld a clean up the state's campaigns. As part of that North Carolina law that was similar to the one in study, legislators reviewed the statute under which Ohio. The state court concluded that the law was Petersilie was convicted, in existence since 1931, "It is presumably not the purpose of the [U.S.] Supreme Court to screw up the political process in this country more than it is already . But if the learned justices had that intent , they could not be doing a better job." -POLITICAL COMMENTATOR DAVID S. BRODER OF THE WASHINGTON POST ON THE MCINTYRE DECISION SEPTEMBER 1995 75 eventually admitted that he addressed some of the envelopes. Deputy Attorney General A few days later, Petersilie received a flyer Charles Hensey believes urging voters to support the "pro liquor" candi- the North Carolina law is dates-Chase and another contender, Louise Miller. Petersilie remailed that flyer to about 20 or 25 sufficiently different from individuals-again without signing his name. the Ohio law to allow its He was charged with 11 counts of violating continued use. the anonymous political advertising statute and faced a maximum sentence of 22 years in prison. Instead, a Watauga County Superior Court judge sentenced him to a two-year prison term, which that makes it a crime to publish truthful but anony- was suspended, and placed Petersilie on super- mous speech." vised probation for three years. He also was or- North Carolina's retreat to the English tradi- dered to spend seven weekends in jail, to pay a tion of punishing true but anonymous speech $400 fine and court costs, and to perform 180 emerged some sixty years ago when this portion of hours of community service." the campaign law was adopted. But no reference Petersilie appealed his conviction on constitu- to the statute is found in recorded court decisions tional and jurisdictional grounds. The Supreme until the Petersilie case.12 Court ordered a new trial for him on jurisdictional Although no new legislation was proposed by grounds but upheld the constitutionality of the the 1994 study committee, the legislature's focus, statute upon which the conviction rested.14 in part, stemmed from some truthful, but negative After Petersilie's conviction, other individu- and anonymous, campaign leaflets circulated in als across the state were singled out for similar 1994 state legislative races. Former House mem- prosecution: ber Maggie Jeffus (D-Guilford) objected to signs Rick Rosen, a leader of a citizen's group posted at polling places on election day stating that opposed to an Alamance County landfill, was she had been endorsed by a gay rights organiza- convicted of violating the law in June 1992 tion. The information was true. Its distribution when his organization placed an advertisement fell within the Petersilie statute and, therefore, in the Burlington Times-News that did not state exposed the person who posted the signs to poten- the sponsor. Never mind that the organization tial criminal charges. had run similar ads with its sponsorship listed After decades of silence, the statute had re- and that many people may have known the gained statewide recognition in November 1989.