# Brown v. Socialist Workers '74 Campaign Comm. (Ohio)

> Supreme Court of the United States · December 8, 1982 · 459 U.S. 87

URL: https://www.frixlaw.com/law-library/cases/9428969

## Case

- **Full name:** BROWN Et Al. v. SOCIALIST WORKERS ’74 CAMPAIGN COMMITTEE (OHIO) Et Al.
- **Court:** Supreme Court of the United States
- **Decided:** December 8, 1982
- **Citations:** 459 U.S. 87; 51 U.S.L.W. 4015; 103 S. Ct. 416; 74 L. Ed. 2d 250; 1982 U.S. LEXIS 169
- **Precedential status:** Published
- **Opinion:** Concurrence by Blackmun
- **Judges:** O'Connor, Marshall, Burger, Brennan, White, Powell, Blackmun, O'Con-Nor, Rehnquist, Stevens
- **Cited by:** 142 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9428969

## How later opinions describe it (automated extraction)

- holding Ohio disclosure requirements unconstitutional as applied to “a minor political party which historically has been the object of harassment by government officials and private parties”
- holding First Amendment violated by Ohio law requiring disclosure of contributors to and recipients of minor parties’ campaign funds where such disclosure might subject those identified to the “reasonable probability of threats, harassment or reprisals”
- holding that First Amendment prohibits a state from compelling disclosures by a minor political party that would subject those persons to the reasonable probability of threats, harassment, or reprisals
- finding Ohio disclosure provisions could not be constitutionally applied to the Socialist Workers Party ("SWP") due to the "substantial evidence of both governmental and private hostility toward and harassment of SWP members and supporters"
- noting that as-applied exemption from disclosure requirements "have been upheld in only a few cases"

## Opinion text

Justice Blackmun,
concurring in part and concurring in the judgment.
I join Parts I, III, and IV of the Court’s opinion and agree with much of what is said in Part II. But I cannot agree, with the Court or with the partial dissent, that we should reach the issue whether a standard of proof different from that applied to disclosure of campaign contributions should be applied to disclosure of campaign disbursements. See ante, at 94, n. 9; post, at 112-113, n. 7. 1 Appellants did not suggest in the District Court that different standards might apply. Nor was the issue raised in appellants’ jurisdictional statement or in their brief on the merits in this Court. Consequently, I would merely assume for purposes of our present decision — as appellants apparently have assumed throughout this litigation and as the District Court clearly assumed — that the flexible proof rule of Buckley v. Valeo, 424 U. S. 1 (1976), applies equally to forced disclosure of contributions and to forced disclosure of expenditures. I would leave for another day, when the issue is squarely presented, considered by the courts below, and adequately briefed here, the significant question that now divides the Court.
This Court’s Rule 15.1(a) states: “Only the questions set forth in the jurisdictional statement or fairly included therein *103 will be considered by the Court.” Appellants’ jurisdictional statement presented a single question:
“Whether, under the standards set forth by this Court in Buckley v. Valeo, 424 U. S. 1 (1976), the provisions of Sections 3517.10 and 3517.11 of the Ohio Revised Code, which require that the campaign committee of a candidate for public office file a report disclosing the full names and addresses of persons making contributions to or receiving expenditures from such committee, are consistent with the right of privacy of association guaranteed by the First and Fourteenth Amendments of the Constitution of the United States when applied to the committees of candidates of a minority party which can establish only isolated instances of harassment directed toward the organization or its members within Ohio during recent years.” Juris. Statement i.
The question assumes the applicability of Buckley to the entire case, and asks this Court to decide only whether the evidence presented to and facts found by the District Court were sufficient to support that court’s conclusion that the Buckley test was satisfied.
Absent extraordinary circumstances, this Court does not decide issues beyond those it has agreed to review. Mayor v. Educational Equality League, 415 U. S. 605, 623 (1974); United States v. Bass, 404 U. S. 336, 339, n. 4 (1971); General Talking Pictures Co. v. Western Electric Co., 304 U. S. 175, 178-179 (1938). According to the Court, however, the issue whether the flexible standard of proof established in Buckley applies to recipients of expenditures is ‘“fairly included’ in the question presented.” Ante, at 94, n. 9. But appellants’ failure to present the issue was not a mere oversight in phrasing that question. That appellants did not invoke this Court’s jurisdiction to review specifically the proper standard for disclosure of campaign expenditures is also apparent from appellants’ arguments in their jurisdictional statement and their brief on the merits. In their juris *104 dictional statement, under the heading “The Question is Substantial,” appellants stated:
“The standards governing the resolution of actions involving challenges to reporting requirements by minority parties were set forth by this Court in the case of Buckley v. Valeo, 424 U. S. 1 (1976). In Buckley the Court held that in order to receive relief from reporting requirements such as those at issue in this action a minority party must establish ‘. . . a reasonable probability that the compelled disclosure of a party’s contributors’ names will subject them to threats, harassment or reprisals from either Government officials or private parties.’ 424 U. S. at 74 .” Juris. Statement 10.
Appellants went on to state that the flexible standard of proof of injury established in Buckley applied to “disclosure requirements.” Juris. Statement 12-18. Similar assertions are found in appellants’ brief on the merits. See Brief for Appellants 12 (“Summary of Argument”); id., at 18 (“While refusing to grant minority parties a blanket exemption from financial disclosure requirements, the Court in Buckley established a standard under which they may obtain relief. . .”).
Thus, appellants’ exclusive theme in the initial presentation of their case here was that the District Court erred in finding that the Buckley standard was satisfied. They did not suggest that the standard was inapplicable, or applied differently, to campaign expenditure requirements. It was not until their reply brief, submitted eight years after this suit was instituted and at a time when appellees had no opportunity to respond in writing, that appellants sought to inject this new issue into the case. See Irvine v. California, 347 U. S. 128, 129 (1954) (plurality opinion of Jackson, J.). In my view, it simply cannot be said that it was “fairly included” in the jurisdictional statement.
Moreover, “[wjhere issues are neither raised before nor considered [by the court below], this Court will not ordinarily *105 consider them.” Adickes v. S. H. Kress & Co., 398 U. S. 144, 147, n. 2 (1970); Lawn v. United States, 355 U. S. 339, 362-363, n. 16 (1958). The District Court did not address the question whether some standard other than that developed in Buckley should apply to disclosure of campaign expenditures. The reason for this was that appellants conceded in the District Court, as they concede here, that the “flexibility in the proof of injury” applicable to disclosure of contributors governed the entire case. In their post-trial memorandum, for example, appellants did not even hint that a different standard should govern disclosure of the identities of recipients of expenditures. Instead, they quoted the Buckley test and granted that “evidence of past harassment may be presented by plaintiffs in cases such as the instant one.” Defendants’ Post-Trial Memorandum 4-5.
This case presents no extraordinary circumstances justifying deviation from this Court’s Rule 15.1(a) and its long-established practice respecting issues not presented below. We have deviated from the Rule when jurisdictional issues have been omitted by the parties and lower courts, see, e. g., United States v. Storer Broadcasting Co., 351 U. S. 192, 197 (1956), or when the Court has noticed “plain error” not assigned, see Carpenters v. United States, 330 U. S. 395, 412 (1947). Obviously, the issue that divides the Court from the partial dissent is not jurisdictional. Nor, as the Court’s opinion persuasively demonstrates, is application of the Buckley test to disclosure of campaign disbursements “plain error.” Indeed, I consider it quite possible that, after full consideration, the Court would adopt the Buckley standard in this context for the reasons stated by the Court. I also consider it quite possible that, after full consideration, the Court might wish to revise the Buckley standard as applied to campaign disbursements — perhaps to take account of the different types of expenditures covered and their differing impacts on associational rights, or perhaps along the lines suggested in the partial dissent. But this significant con *106 stitutional decision should not be made until the question is properly presented so that the record includes data and arguments adequate to inform the Court’s judgment.
The Court’s apparent reliance on Procunier v. Navarette, 434 U. S. 555, 560, n. 6 (1978), does not provide a rationale for deciding this issue at this time. The petitioner there had included in his petition for certiorari all the questions we eventually decided. Notwithstanding the fact that the Court limited its grant of the petition to a single question, the parties fully briefed the questions on which review had been denied. Deciding those questions, therefore, was neither unwise nor unfair. In this case, in contrast, appellants affirmatively excluded the point at issue in their jurisdictional statement and in their brief on the merits. By failing to raise it until their reply brief, appellants prevented appellees from responding to the argument in writing. There can be no question that, as the Court observes, ‘“our power to decide is not limited by the precise terms of the question presented.’” Ante, at 94, n. 9 (quoting Procunier v. Navarette, 434 U. S., at 560, n. 6 ) (emphasis supplied). But Rule 15.1(a) is designed, as a prudential matter, to prevent the possibility that such tactics will result in ill-considered decisions. It is cases like this one that show the wisdom of the Rule.
Thus, for purposes of this case, I would assume, as appellants’ jurisdictional statement and brief on the merits assume, that the Buckley standard applies to campaign expenditures just as it applies to contributions. 2 Appellees *107 presented “specific evidence of past or present harassment of members due to their associational ties, or of harassment directed against the organization itself,” sufficient under the rule in Buckley to establish a “reasonable probability” that the Ohio law would trigger “threats, harassment, or reprisals” against contributors. 424 U. S., at 74 . On this basis, I would affirm the judgment of the District Court in its entirety.
Although the partial dissent agrees that this issue is not properly presented and therefore that the question should not be decided, post, at 112, n. 7, its result and reasoning endorse a different standard of proof. See n. 2, infra.
The partial dissent says it agrees that “this is not the appropriate case to determine whether a different test or standard of proof should be employed in determining the constitutional validity of required disclosure of expenditures.” Post, at 112, n. 7. If that is so, however, appellees’ proof, which the partial dissent agrees established a reasonable probability of threats, harassment, or reprisals against contributors, likewise allowed the District Court to find a reasonable probability of threats, harassment, or reprisals against recipients of expenditures. The Buckley standard permits proof that a particular disclosure creates the requisite likelihood of harassment to be based on a showing of harassment directed at members of *107 the party or at the organization itself. 424 U. S., at 74 . Thus, I do not understand how the partial dissent’s “separately focused inquiry” can “plainly require a different result,” post, at 113, n. 7, or how it possibly can lead to the conclusion that “appellees did not carry their burden of production and persuasion insofar as they challenge the expenditure disclosure provisions,” post, at 115 — unless, despite the partial dissent’s uncertain disclaimer, post, at 113, n. 7, its “separate focus” alters Buckley’s “reasonable probability” and “flexible proof” standards in the context of expenditures.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9428969. Public record. Not legal advice.