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, for and 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. source. The county manager and four county Frank W. Petersilie, after failing to gain sufficient commissioners, two of whom were up for re- votes to qualify for a run-off race for a seat on the election, sought retribution. Rosen was con- Boone Town Council, distributed a copy of a victed and ordered to pay $55 in court costs as Washington Post article written by Nan Chase, the punishment.15 He appealed the decision and wife of Saul Chase, one of the candidates in the theprosecutor decided not to pursuethe case run-off election. further. The newspaper was not charged for The article expressed Mrs. Chase's opinion publishing the ad. about prayer in school. An unsigned letter distrib- uted with the article quoted Mrs. Chase's descrip- A former wife of Chapel Hill lawyer Barry tion of herself as an "unbeliever (in Christianity) Winston was charged in May 1994 with dis- in the midst of the pious" who found herself tributing anonymous flyers during his cam- unable to criticize "religious paraphernalia paign for Orange County district attorney. displayed in public offices and on state-owned Anne Russell of Wilmington distributed the vehicles." flyers to businesses and placed them on car The article and the views attributed to Mrs. windshields. The flyers challenged Winston's Chase in the letter would have been unpopular integrity in dealings with former wives and in- with a segment of the Boone electorate, and dis- cluded excerpts from a lawsuit seeking unpaid tributing these materials was likely intended to legal fees, part of an Internal Revenue Service damage Saul Chase's candidacy. Petersilie did not letter declaring a tax lien, and a deposition con- sign his name to the material he sent out. He cerning Winston's personal life."

76 NORTH CAROLINA INSIGHT VOTE LIQUoRBYTHEDRINK FORBOONE FOURYEARS AGO i CHASE, THE A$,U, rTi(THEHEIPoFSAUL STUDENTS 8RouGHT 139ER -r,3 (3aoNE. Now IS TIME THE PARTY THE TO COMPLETE SUTTLE7 DUGGER MARSH REFUSE ENDORSETHIS TO ISSUE AND WOULD TO DEFEAT A LI U WORK REFERENDUM, 4 DR By THE DRINK VOTE SAUL CHASE LOusE Nov 7H MILLER THE PRO- LIQUOR CANDIDATES

Dear Fellow Christians:

from public

Chase wants to tak e Casi oura Schools ! buildings and q to io sr. enl In an article published Bo In o then e Washington Post, Mrs. Saul Chase the nq and, Sell ISthe ..,lntimpldatIr sup here statlnG P that perpetuatlny.

Calling herselt an "unbeliever (in Chrlsianity ) in the midst Of the s e pious ", Mrs. Saul C hase states that she is unable to openly criticize )taut "religious paraphernalia displayed in public offices an d owned vehicles ", and she also says that " it (anyone) spea k(s torcetully against what may be an unconstitutional mixing of church beer This flier and an and state , they will be unable to enter the politicalt mainstream that has the power to seperate the two spheres". --This th thehWash oug t C anonymous letter spoken to the people of Boone by Mrs. Chase, only heowilll, distributed by post. Why k ee p tinrthevrunSOttutot reelection. IofnheOuwir a wthe justpower take away any Christian influence from the Town e d ly h av e Boone resident takedgi away employees , buildings , etc.. It can be assumed that Chase out Christian intluence from our town, Frank Petersilie led has a goal to wipe dn issues from the very Codetearing Christian people who helpedel put him in ottiCe to criminal charges and idates sho u ld beSauIchase thaslbeentdeceptiveito5usfbylnot and it appear5 that eo le. A deception against Petersilie supporting the good, wholesome beliefs of our p P our tokekour through a 60-year-old that is alledgedly a deliberate attempt to gain power Christian atmosphere from us. We,a nd thehol d town, fast should to our stop Christ him, t ot our tow n vernment Chase statute outlawing him out to establish. vote againsta Saulr e edoms anonymous that oui toret athers9otough i hard political speech.

SEPTEMBER 1995 77 Chief Justice Burley Mitchell, the lone dissenter in Petersilie

In May 1994, Cumberland County District Attorney Ed Grannis asked the State Bureau of Investigation to investigate a negative ad against a candidate for the General Assembly that ran in the Fayetteville Observer-Times three days before the May 3 primary." Again, the Fayetteville paper was not charged. The person placing the advertisement through an ad agency was the target of the investigation. In 1992, The Shelby Star ran an ad without the appropriate identifying information and the in- dividual, not the newspaper, was prosecuted under the statute.'8 Again in 1992, The Bugle Calls, an anonymous newsletter written by "The Town Tattler" newspapers of the First Amendment principles (whose real name is Frances Winslow), involved. received a remonstration from Assistant Dis- Then-Chief-Justice James Exum, writing for trict Attorney Ernie Lee in Onslow County. the majority of the court in Petersilie, concluded Lee wrote a letter stating that the paper might that the statute did not infringe upon free speech be found in violation of the law if it continued rights. He narrowly construed the statute to read writing anonymous criticism of political that it is illegal to publish an anonymous accusation candidates.' 9 derogatory to a candidate in a political campaign. The state court balanced two U.S. Supreme Court Curiously, newspapers printing such adver- cases-Burson v. Freeman2° and Talley v. Califor- tisements have yet to be prosecuted. Before the nia21-which reached opposing results. state Supreme Court ruled in Petersilie, Charles In Burson, the U.S. Supreme Court upheld a Hensey, an assistant attorney general representing statute that prohibited election day solicitation of the state in election law violations, said that he votes within 100 feet of a polling place. The Court wouldn't go after a newspaper because he believed explained that "a facially content-based restriction the state could not withstand a challenge from on political speech in a public forum... must be subject to exacting scrutiny: The State must show that the regulation is necessary to serve a compel- ling state interest and that it is narrowly drawn to achieve that end."22 The court felt the election day restriction met that test. The U.S. Supreme Court in Talley, on the other hand, with facts more similar to Petersilie's situation, applied the same standard, and concluded that the law prohibiting the distribution of anony- mous pamphlets and leaflets on public matters of importance was void because "it would tend to restrict freedom to distribute information and thereby freedom of expression."23

Justice Willis Whichard still wishes some controls could be placed on negative campaigning.

78 NORTH CAROLINA INSIGHT The N.C. Supreme Court, faced with these North Carolina refused to ratify the U.S. and other U.S. Supreme Court opinions, concluded Constitution because it lacked a freedom of speech that the North Carolina law fell between the Burson and press clause. The Petersilie decision ran and Talley decisions. "In the context of a cam- counter to the state's early determination to allow paign it is necessary for accusers of candidates to free flow of debate. As the late U.S. Supreme identify themselves, even if they speak the truth, in Court Justice Hugo Black wrote in Talley: order for the electorate to be able to assess the Anonymous pamphlets, leaflets, brochures accusers' bias and interest. . . . This kind of and even books have played an important information is required in order for the electorate role in history. Persecuted groups and to determine what weight, if any, should be given sects have been able to criticize oppres- the accusation, even if it is true. The source of the sive practices and laws either anony- charge is as much at issue as the charge itself."24 mously or not at all. The press licensing Therefore, the court held that the statute was nar- law of England, enforced against the Colo- row enough to withstand free speech scrutiny. nies, was due in part to the knowledge that Justice Burley Mitchell, the lone dissenter in exposure of the names of printers, writers the case, wrote, "The decision of the majority to and distributors would lessen the circula- uphold this flagrant violation of the First Amend- tion of literature critical of the govern- ment opens a sad chapter in the history of this ment. The old seditious libel cases in Court. I can only pray that this chapter and the England show the lengths to which gov- inevitable harm that will result to this State's people ernment had to go to find out who was re- and their government will be brief."25 sponsible for books that were critical of He stated, "I have grave reservations as to the rulers .... 11 whether, consistent with the First Amendment, any public purpose can justify such a limitation on Before the Revolutionary War, colonial patri- pure political expression.... The right to anonym- ots frequently had to conceal their authorship or ity has long been recognized in this country as a distribution of literature that easily could have necessary component of the constitutional rights brought down on them prosecutions by English- of free speech and a free press."26 controlled courts. During that period the Letters Indeed, Justice Mitchell's dissent is consis- of Junius were written to urge the colonists to rid tent with North Carolina's early history and recent themselves of English rule. The identity of their North Carolina Supreme Court decisions affecting author is unknown to this day. Even the Federalist other speech-related issues .21 This state has Papers, written in favor of the adoption of our stopped punishing invasion of privacy claims such Constitution, were published under fictitious as publication of private facts28 and placing a per- names. It is plain that anonymity has sometimes son in a "false light."29 North Carolina was the been assumed for the most constructive purposes. first state court to require public officials to meet a The anonymous but truthful political speech high standard of proof in libel cases.30 law of North Carolina harkens back to the English practice of punishing those individuals who dis- tributed true information without identifying them- selves. Had the authors of the Federalist Papers circulated their material in North Carolina today, fun for a calf is not always they could now be languishing in jail. in for a cow ... we do not The United States Supreme Court decision in thereby hold that the state McIntyre v. Ohio clearly calls into question the may not in other , larger validity of the North Carolina statute. But the North Carolina statute is more narrowly drawn. circumstances , require the And the high court left the door open a crack. As speaker to disclose its U.S. Supreme Court Justice Ruth Bader Ginsburg interest by disclosing its wrote in her concurring opinion in McIntyre: identity. [I]n for a calf is not always in for a cow. ... we do not thereby hold that the state -JUSTICE RUTH BADER GINSBURG may not in other, larger circumstances, U.S. SUPREME COURT require the speaker to disclose its interest

SEPTEMBER 1995 79 by disclosing its identity. Appropriately same views he did." See "Indefense of free speech, tax protest- leaving open matters not presented by ors, and Bill Lashley," The Alamance News, Dec. 8, 1993, p. 2. "Charlie Peek, "Judge Orders Petersilie to 7 Weekends in McIntyre's handbills, the court recognizes Jail," Winston-Salem Journal, Winston-Salem, N.C., Oct. 20, that a State's interest in protecting an elec- 1990,p. 17. tion process `might justify a more limited 14Saul Chase says that while he can understand the Supreme Court's ruling in favor of true but anonymous political speech, identification requirement.'32 it's important to note that not all of the material circulated So the Supreme Court may have left the state against him was true. For example, in the letter mailed anony- mously along with the Washington Post article, the author some room to regulate political speech. But the writes, "If he wins, he will have the power to take away any court's overall ruling is a high hurdle for any state Christian influence from the Town employees, buildings, etc... that wishes to constrain First Amendment rights to It can be assumed that Chase allegedly has a goal to wipe out achieve that purpose. lu"lit Christian influence from our town, take it away from the very God-fearing Christian people who helped put him in office." Chase says he had neither the power nor the intent to wipe out FOOTNOTES Christian influence in Boone. Ultimately, Chase was vindi- ' McIntyre v. Ohio Elections Commission, 115 S.Ct. 1511 cated at the polls. He ran for the Town Council again in 1994 (1995). and led the ticket. He now is mayor pro tempore of Boone. 2 David S. Broder, The Washington Post, editorial, May 7, 15Alamance County District Court Division 92 CR 10807. 1995, p. 7A. 16Noah Bartolucci, "Candidate's Ex-Wife Charged in Flier 'State v. Petersilie, 334 N.C. 169,432 S.E.2d832 (1993). Case in Orange DA's Race," The News & Observer, Raleigh,

"'Questions about Regulating Negative Electioneering," N.C., May 20, 1994, p. B6. Russell is seeking a reversal of her Report by William R. Gilkeson, Staff Attorney, General conviction in light of the McIntyre case. So far, her petitions Research Division, Legislative Services Office, December 1, have been denied, most recently on July 12, 1995, by the N.C. 1994,p. 2. Court of Appeals (P95-269). 5 Senate Bill 1040. The bill was packaged with a House bill "Marc Barnes, "Richardson Attack Cut Short by Judge," setting term limits for legislators (HB 12) and voted down in the Fayetteville Observer-Times, Fayetteville, N.C., Dec. 20, the Senate. 1994, p. IA. 6 The First Amendment of the U.S. Constitution states, 11 Author's personal knowledge , based on a public seminar "Congress shall make no law... abridging the freedom of she participatedin for media and elections officials in Shelby. speech, or of the press...." "Ben Stocking, "Some think law's a gag," The News & ' Article I, Section 14 of the North Carolina Constitution Observer, Raleigh, N.C., Aug. 3, 1992, p. Al. states, "Freedom of speech and of the press are two of the great 20504 U.S. 191, 112 S.Ct. 1846(1992) bulwarks of liberty and therefore shall never be restrained, but 221362 U.S. 60 (1960). every person shall be held responsible for their abuse." 22Burson at p. 1851. 8 Petersilie , note 3 above , at p. 184. 23Talley at p. 65. 9N.C. General Statute 163-274(7). 24Petersilie at p. 187. "Ohio Code , Section 3599.09(A). 25Petersilie at p. 207. 26 " Gilkeson, note 4 above. Petersilie at p. 199. 12The statute was used in 1986 to force the resignation of 27For more on the court's decisions affecting speech-related Bill Lashley, then a Burlington City Councilman, from office. issues, see Katherine White, "The N.C. Supreme Court at 175: Lashley had distributed an unsigned flier that said "Alamance Slow on Civil Rights But Fast on Free Speech?" North Caro- County can't afford four more years of John Freeman wasting lina Insight, Vol. 15, Nos. 2-3 (September 1994), pp. 106-111. the taxpayer's money." Freeman was a Democratic county 228Hall v. Post, 323 N.C. 259, 372 SE2d 711 (1988). commissioner who was defeated in the November, 1984 elec- 29Renwick v. News & Observer Publishing Co., 310 N.C. tion. Lashley also distributed other anonymous material in 312, 312 S.E. 2d 405 (1984). 1985 against other candidates. Then District Attorney George 30Ponder v. Cobb, 257 N.C. 281, 126 S.E.2d67 (1962). Hunt "claimed that Lashley was a danger to American society 31Talley v. California at pp. 64-65 (footnotes omitted). because he was trying to get people into office who held the 32 McIntyre v. Ohio Elections Commission, note I above.

80 NORTH CAROLINA INSIGHT