No.23-926 - Supreme Court of the United States - On Petition for Writ of Certiorari to The United

The Case for an Originalist First Amendment Jurisprudence In his McIntyre concurrence, Justice Thomas suggested that the Court set aside the debate over the sufficiency of the government’s interest and how substantially it related to the regulation imposed and simply “determine whether the phrase ‘freedom of speech, or of the press,’ as originally understood, protected anonymous political leaflett. [...] Cases like this—where the government demands that parties 5 engaging in issue advocacy dedicate a portion of their ad space to multi-tiered disclosure, identifying not only the source of the communication, but the top funders of the communication, as well as the funders of those funders—demonstrate the limitations and complexities of applying the exacting scrutiny test to issue campaign disclaimer. [...] The essays in the Federalist Papers, published under the pseudonym of ‘Publius,’ are only the most famous example of the outpouring of anonymous political writing that occurred during the ratification of the Constitution.”). [...] There is no historical debate that the primary drafter of the Declaration of Independence, and the man hailed as the Father of the Constitution published the Kentucky and Virgina Resolutions anonymously. [...] Thus, while a disclaimer requiring the speaker to identify the source of the communication conveys information that may be of value to the voter—for example, the name of the campaign committee or organization from which the voter can obtain additional information—knowing the identity of donors to donors provides rapidly diminishing returns.