Cite as: 514 U. S. 334 (1995)
Scalia, J., dissenting
when the Fourteenth Amendment was adopted, but at least as late as 1837 it was respectable enough to be engaged in by Abraham Lincoln. See 1 A. Beveridge, Abraham Lincoln 1809-1858, pp. 215-216 (1928); 1 Uncollected Works of Abraham Lincoln 155-161 (R. Wilson ed. 1947).
But to prove that anonymous electioneering was used frequently is not to establish that it is a constitutional right. Quite obviously, not every restriction upon expression that did not exist in 1791 or in 1868 is ipso facto unconstitutional, or else modern election laws such as those involved in Burson v. Freeman, 504 U. S. 191 (1992), and Buckley v. Valeo, 424 U. S. 1 (1976), would be prohibited, as would (to mention only a few other categories) modern antinoise regulation of the sort involved in Kovacs v. Cooper, 336 U. S. 77 (1949), and Ward v. Rock Against Racism, 491 U. S. 781 (1989), and modern parade-permitting regulation of the sort involved in Cox v. New Hampshire, 312 U. S. 569 (1941).
Evidence that anonymous electioneering was regarded as a constitutional right is sparse, and as far as I am aware evidence that it was generally regarded as such is nonexistent. The concurrence points to "freedom of the press" objections that were made against the refusal of some Federalist newspapers to publish unsigned essays opposing the proposed Constitution (on the ground that they might be the work of foreign agents). See ante, at 364-366 (Thomas, J., concurring in judgment). But, of course, if every partisan cry of "freedom of the press" were accepted as valid, our Constitution would be unrecognizable; and if one were to generalize from these particular cries, the First Amendment would be not only a protection for newspapers, but a restriction upon them. Leaving aside, however, the fact that no governmental action was involved, the Anti-Federalists had a point, inasmuch as the editorial proscription of anonymity applied only to them, and thus had the vice of viewpoint discrimination. (Hence the comment by Philadelphiensis,
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