FEDERAL ELECTION COMMISSION

1050 FIRST STREET, N.E.

WASHINGTON, D.C. 20463

BEFORE THE FEDERAL ELECTION COMMISSION

In the Matter of ) 

 ) MUR 7280

Unknown Respondent ) 

) 

 

STATEMENT OF REASONS OF COMMISSIONER JAMES E. “TREY” TRAINOR, III

Derek Utley, a previously unknown publisher of the “Trump 2020” Facebook page, 

posted his own views supporting Donald Trump for President, spending $483 of his own funds 

on Facebook posts. Because Mr. Utley exercised his protected constitutional right of anonymous 

free speech, a complaint was filed against “UNKNOWN OWNER OF ‘TRUMP 2020’ 

FACEBOOK PAGE” alleging that the Unknown Respondent “made approximately $34,000 in 

undisclosed independent expenditures,” in violation of 52 U.S.C. § 30104(c). The verified 

complaint relied solely on a news article in VICE News which reported the “Unknown 

Respondent” spent $34,000 in advertisements on Facebook.1 

The Commission, having previously voted to find “reason to believe” that an unknown 

respondent violated 52 U.S.C. §§ 30104(b)(4)(H)(iii) or (c) and 30120(a), and 11 C.F.R. 

§110.11(a), and having authorized the use of compulsory process to investigate the matter,2 then 

voted to substitute the name Derek Utley in place of the “Unknown Respondent” and to take no 

further action as to the allegation that Mr. Utley violated the Federal Election Campaign Act of 

1971, as amended (“FECA”). I dissented from the latter vote because I believe Mr. Utley

properly exercised his constitutional right to anonymous free political speech and certainly did 

not violate any campaign finance statute. Instead, the Commission should have voted to find “no 

reason to believe” a violation occurred.3 The failure of the Commission to find “no reason to 

believe” creates uncertainty among those who wish to engage in anonymous political speech and, 

therefore, has a chilling effect of the exercise of First Amendment rights.

1

 MUR 7280 (Unknown Respondent), Complaint, dated Sept. 26, 2017, at 1. It is ironic that the authors of the VICE 

News article grossly inaccurately reported that the “Unknown Respondent” spent at least $34,000 in Facebook posts 

and suffered no consequences for their inaccuracy, while Mr. Utley has had to respond to the complaint, endure an 

investigation, and deal with this issue for over four years for the simple act of exercising his constitutional rights. 2

 MUR 7280 (Unknown Respondent), Certification dated Jun. 4, 2019. I was not a member of the Commission when 

this vote was taken. 3 See generally Statement of Policy Regarding Commission Action in Matters at the Initial Stage in the Enforcement 

Process, 72 Fed. Reg. 51, 12545 (Mar. 16, 2007). 

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 Without anonymous speech, this country would be without our Constitution and its First 

Amendment. To help persuade public opinion to support the Constitution drafted by Congress, 

“Publius” anonymously published the Federalist Papers, a series of pamphlets advocating the 

merits of a federalist system of governance. 4 Anonymous free speech has been a hallmark of 

political debate in the country from the country’s beginning.

The right to anonymous political speech was initially directly addressed by the United 

States Supreme Court in Talley v. California.

5 In striking down a California statute which 

prohibited and criminalized anonymous speech, the Court stated, “[a]nonymous pamphlets, 

leaflets, brochures and even books have played an important role in the progress of mankind.”6

The court pointed out that anonymous pamphlets and leaflets have been “historic weapons in the 

defense of liberty.”7 The court held the statute to be violative of the First Amendment and 

reversed Mr. Talley’s conviction.8

Despite the Court’s decision in Talley, Ohio adopted a statute which prohibited 

anonymous political speech: 

No person shall write, print, post, or distribute, or cause to be written, printed, 

posted, or distributed, a notice, placard, dodger, advertisement, ample ballot, or any 

other form of general publication which is designed to promote the nomination or 

election or defeat of a candidate, or promote the adoption or defeat of any issue, or 

to influence the voters in any election ... unless there appears on such form of 

publication in a conspicuous place or is contained within the said statement the 

name and residence of ... the person who issues, makes, or is responsible therefor.9

On April 27, 1988, Mrs. McIntyre attended a school board meeting in Ohio and 

distributed handbills opposing the school district’s proposed tax levy to attendees. She was 

subsequently charged with violating Ohio’s statute by the Ohio Election Commission and issued 

a fine. The constitutionality of the Ohio statute was considered by the United States Supreme 

Court in McIntyre v Ohio Election Commission.

10 The Court struck down the statute holding that 

it violated Ms. McIntyre’s First Amendment right to anonymous speech, finding that, “[i]ndeed, 

the speech in which Mrs. McIntyre engaged – handing out leaflets in the advocacy of a 

politically controversial viewpoint – is the essence of First Amendment expression... No form of 

4

 The Federalist Papers, published anonymously under the name “Publius,” were authored by James Madison, 

Alexander Hamilton and John Jay. Opponents to the federal system also published anonymously. The authors 

“Cato,” “Centinel,” “Brutus,” and “The Federal Farmer”, who opposed a federal system, are still not known for 

certain.

5

 362 U.S. 60 (1960). 

6 Id. at 64. 7 Id. 

8

 Mr. Talley’s handbill urged readers to boycott businesses and products of “manufactures who will not offer equal 

employment opportunities to Negros, Mexicans and Orientals,” and stated, “I believe that every man should have an 

equal opportunity for employment no matter what his race, religion, or place of birth.” Mr. Talley was convicted of 

violating the statute in Los Angeles Municipal Court. 

9

 3 Ohio Rev. Code Ann. § 3599.09(A) (1988). 

10 514 U.S. 334 (1995). 

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speech is entitled to greater constitutional protection than Mrs. McIntyre.”11 The Court 

concluded that: 

Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent 

practice, but an honorable tradition of advocacy and of dissent. Anonymity is a 

shield from the tyranny of the majority. It thus exemplifies the purpose behind the 

Bill of Rights, and of the First Amendment in particular: to protect unpopular 

individuals from retaliation-and their ideas from suppression- at the hand of an 

intolerant society. The right to remain anonymous may be abused when it shields 

fraudulent conduct. But political speech by its nature will sometimes have 

unpalatable consequences, and, in general, our society accords greater weight to the 

value of free speech than to the dangers of dissenting.12 

In this matter, Mr. Utley engaged in the same speech conduct as did Mrs. McIntyre. 

Facebook is the modern-day equivalent of a pamphlet and those who post opinions are no 

different that the pamphleteers the court protected in McIntyre. The reasoning of McIntyre

should have been applied in this matter. I do not want Mr. Utley or anyone else to be deterred 

from engaging in anonymous political speech as a result of the Commission’s handling of this 

matter. This Commission should have upheld Mr. Utley’s rights to anonymous speech, and I 

dissented on the motion to take no further action only because the motion did not send the clear 

message that the Commission would protect anonymous speech as mandated by the Constitution 

and the United States Supreme Court.

Just a few days ago, the United States Supreme Court reminded this Commission of its 

mandate to uphold political speech. In Fed. Election Comm’n v. Ted Cruz for Senate,

13 the Court 

reaffirmed that the only reason FECA may restrict political speech is: “[t]he prevention of ‘quid 

pro quo’ corruption or its appearance.”14 How could a person who anonymously purchased 

Facebook posts with his own money in the amount of $483 possibly buy influence with any 

candidate? There is simply no suggestion or opportunity for “quid pro quo” influence or 

corruption arising from the anonymous internet postings in this matter. Accordingly, Mr. Utley 

did not violate FECA in my judgment.

 

____________________ June 1, 2022_________________________

James E. “Trey” Trainor, III Date

Commissioner 

11 Id. at 347. 12 Id. at 357. 13 596 U.S. __ (2022). 

14 Id., opinion at 13.

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