61 Cal. 2d 446 | Cal. | 1964
By complaint filed in the justice court, appellant was charged with violating Elections Code section 12047.
Prohibition, in this ease, is a proper remedy. It is well settled that when the claimed infirmity appears on the face of the statute, prohibition is an appropriate means to challenge the constitutionality of the statute. The writ provides a speedy procedure by which the accused may be protected from prosecution under a statute which does not state a public offense. The courts, zealous to protect constitutional rights, have recognized the propriety of the use of the writ for this purpose. (Whitney v. Municipal Court, 58 Cal.2d 907 [27 Cal.Rptr. 16, 377 P.2d 80]; Lambert v. Municipal Court, 53 Cal.2d 690 [3 Cal.Rptr. 168, 349 P.2d 984]; see also Kelly v. Municipal Court, 160 Cal.App.2d 38, 46 [324 P.2d 990].) Where the statute is attacked on First Amendment grounds the court is not limited in its examination to the application of the statute involved in the particular case, but may consider other possible applications of the statute. (Fort v. Civil Service Com., ante, p. 331 [38 Cal.Rptr. 625, 392 P.2d 385]; Thornhill v. Alabama, 310 U.S. 88 [60 S.Ct. 736, 84 L.Ed. 1093]; see generally Note, Inseparability in Application of Statutes Impairing Civil Liberties, 61 Harv.L.Rev. 1208.)
There are certain challenges to this statute that are unsound. Thus the claim that section 12047 is unconstitutionally vague is without merit. The language of the section is understandable to people of ordinary intelligence and gives adequate warning of the conduct proscribed. It defines “ ‘. . . boundaries sufficiently distinct for judges and juries fairly to administer the law. . . . That there may be marginal eases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense. . . .’ ” (Roth v. United States, 354 U.S. 476, 491-492 [77 S.Ct. 1304, 1 L.Ed.2d 1498, 1511]; see Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67.)
Appellant next contends that the complaint is constitutionally defective in that it did not apprise him of the name of the victim of his alleged attack. While this might be
One of appellant’s main contentions is that section 12047 infringes on freedom of speech as guaranteed by the federal
Section 12047 appears among the penal provisions of division 8 of the Elections Code, which is concerned with “Election Campaigns.” It is one of several sections designed “to insure the fair and honest conduct of election campaigns,”
The purpose of the statute is clear. It requires identification so that (1) the electorate may be better able to evaluate campaign material by examination of the competence and credibility of its source, (2) irresponsible attacks will be deterred, (3) candidates may be better able to refute or rebut charges — so that elections will be the expression of the will of an undeceived, well-informed public.
Other states, confronted with similar problems, have likewise enacted statutes designed to protect the integrity of elections. “Thirty-six States have statutes prohibiting the anonymous distribution of materials relating to elections.” (Talley v. State of California, supra, 362 U.S. 60, 70, fn. 2 [80 S.Ct. 536, 4 L.Ed.2d 559, 566] (dissenting opinion); see Note, Constitutionality of corrupt practices acts, 69 A.L.R. 377.)
Congress, too, has found this type of legislation necessary. Section 612 of title 18 of the United States Code provides for ■a fine of not more than $1,000 and/or imprisonment of not longer than one year for the anonymous publication of a
Having considered the language and purpose of the statute, we now pass to a discussion of its effect. It is undisputed that by requiring disclosure it is likely to have some inhibitory effect. This, in itself, however, does not invalidate the statute. Not only have numerous federal disclosure statutes in various contexts been upheld, but analysis of the recent eases in which anonymity was protected indicates that anonymity is not an absolute. (See generally, Comment, The Constitutional Bight to Anonymity: Free Speech, Disclosure and the Devil, 70 Yale L.J. 1084.) “In a number of situations in which secrecy or the concealment of associations has been regarded as a threat to public safety and to the effective, free functioning of our national institutions Congress has met the threat by requiring registration or disclosure.” (Communist Party v. Subversive Activities Control Board, supra, 367 U.S. 1, 97 [81 S.Ct. 1357, 6 L.Ed. 2d 625, 689-690].) In Communist Party, the cases of N.A.A.C.P. v. Alabama, 357 U.S. 449 [78 S.Ct. 1163, 2 L.Ed. 2d 1488], and Bates v. City of Little Rock, 361 U.S. 516 [80
Nor did Talley hold that anonymity is always protected. It relied on Bates and N.A.A.C.P. for the proposition that “there are times and circumstances when States may not compel members of groups engaged in the dissemination of ideas to be publicly identified.” (Talley v. State of California, supra, 362 U.S. 60, 65 [80 S.Ct. 536, 4 L.Ed.2d 559, 563].) In Talley the ordinance was so broad as to bar “all handbills under all circumstances anywhere” which are issued anonymously. (Talley v. State of California, supra, 362 U.S. at p. 64 [80 S.Ct. 536, 4 L.Ed.2d at pp. 562-563].) The court expressly stated that it was not passing on the validity of an ordinance intended to and in fact limited to the accomplishment of valid purposes. (Id., at p. 64 [4 L.Ed.2d at pp. 562-563].) Rather, the ordinance was held invalid “because the breadth of its application went far beyond what was necessary to achieve a legitimate governmental purpose.” (Shelton v. Tucker, 364 U.S. 479, 489 [81 S.Ct. 247, 5 L.Ed.2d 231, 238].)
The recent decision in New York Times Co. v. Sullivan, supra, 376 U.S. 254 [84 S.Ct. 710, 11 L.Ed.2d 686] emphasizes anew the great value of comment, even to the point of “vehement, caustic, and sometimes unpleasantly sharp attacks” (376 U.S. at p. 270 [84 S.Ct. at p. 721,11 L.Ed.2d at p. 701]), on the “official conduct” of government officials. (Italics added; this phrase is repeated frequently throughout the opinion.) However, as was made explicit by Justice Goldberg, concurring, “This is not to say that the Constitution protects defamatory statements directed against the private conduct of a public official or private citizen. ’ ’ (376 U.S. atp. 301 [84 S.Ct. at p. 737,11 L.Ed.2d at p. 721].) The court recognized a difference between “an otherwise impersonal attack on governmental operations” and “a libel of an official responsible for those operations.” (376 U.S. at p. 292 [84 S.Ct. at p. 732,11 L.Ed.2d at p. 713].) California, too, has given recognition to the importance of criticism of the conduct of public officials in the administration of their offices. (E.g., Snively v. Record Publishing Co., 185 Cal. 565 [198 P. 1]; Babcock v. McClatchy Newspapers, 82 Cal.App.2d 528 [186 P.2d 737].) The Times case held that a public official cannot recover damages “for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice.’ ” (376 U.S. at p. 279 [84 S.Ct. at p. 726, 11 L.Ed.2d at p. 706].) With the threat of a libel suit significantly diminished, the need for anonymity is less now, and the need for the protection of the public from scurrilous attacks on candidates is still greater since, presumably, the threat of a libel action had previously acted as something of a deterrent against such attacks. Moreover, unlike the case of a libel action, prosecution under section 12047 must be accompanied by all the safeguards prerequisite to a criminal case, a distinction noted by the court in Times.
We recognize full well the considerations noted in Times,
There is a crucial difference, however, between the interests at stake in a libel case and those involved in the enforcement of a purity of elections statute. In the former, we juxtapose against free speech the risk of harm to the reputation of an individual. Even here, the majority permit redress if there is present actual malice. However, the disclosure requirement of section 12047 does far more than protect the reputation of candidates. It furthers the very ends sought to be achieved through the right of free speech, to wit, “that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means.” (De Jonge v. Oregon, 299 U.S. 353, 365 [57 S.Ct. 255, 81 L.Ed. 278, 284].) This end is attained when the will of the people is an undeceived, well-informed will. “The effective functioning of a free government like ours depends largely on the force of an informed public opinion.” (Barr v. Matteo, 360 U.S. 564, 577 [79 S.Ct. 1335, 3 L.Ed.2d 1434, 1444] (concurring opinion).) The freedoms of the First Amendment, however, not only foster legitimate government, but also depend on its survival. While we recognize that “the fitting remedy for evil counsels is good ones” (Whitney v. State of California, 274 U.S. 357, 375 [47 S.Ct. 641, 71 L.Ed. 1095, 1106] (Justice Brandéis, concurring)), and that “Under our system of government, counterargument and education are the weapons available to expose these matters, not abridgment of the rights of free speech and assembly” (Wood v. Georgia, 370 U.S. 375, 389 [82 S.Ct. 1364, 8 L.Ed.2d 569, 579]), we must also be cognizant of the realities of the specific problem here dealt with. Adequate dissemination of rebuttal or refutation is virtually impossible in the situation of preelection attacks.
“[E]ven though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.” (Shelton v. Tucker, supra, 364 U.S. 479, 488 [81 S.Ct. 247, 5 L.Ed.2d 231, 237].) Section 12047 certainly “bears a reasonable relationship to the achievement of the governmental purpose asserted as its justification.” (Bates v. City of Little Rock, supra, 361 U.S. 516, 525 [80 S.Ct. 412, 4 L.Ed.2d 480, 487].) Its scope is tailored to fit its purpose. It is limited to election campaigns, to writings attacking candidates, and then only if the attack is primarily personal in nature. The ends of greater edification of the public and ability of candidates to refute or justify are both served by application of the identification requirement to good faith, truthful attacks as well as to smears.
We conclude, therefore, that the public interest in more complete information and clean, free elections, along
However, even though the statute passes the freedom of speech barricade, the writ of prohibition must issue, because the statute is unconstitutionally discriminatory. This defect, as well as the ambiguities above mentioned, can be. easily cured by legislative amendment. Although the statute is, by its terms, applicable to “Every person,” its identification requirement can be satisfied only if the writing bears the name and address of either (a) two officers of the organization issuing it, or (b) “some voter of this State, who is responsible for it.” Thus, identification of an individual who issues such a writing complies with the requirement only if that individual is a California voter.
The statute may not, in an effort to avoid this difficulty, be construed as applying only to voters, i.e., that nonvoters may publish such writings anonymously. Not only does the statute expressly apply to “Every person,” but we note that section 12049,
As the case is before us on prohibition, before trial, there is nothing to indicate whether or not appellant is a California voter. If he is not, the constitutional guaranties of free speech preclude enforcement of the statute against him. If he is a California voter, may the statute be enforced against him? We hold it may not. The derogation of the freedom of speech of nonvoters is so palpable that all may rely on the fact that the statute may not be enforced against nonvoters. (See People v. Building Maintenance etc. Assn., 41 Cal.2d 719, 726 [264 P.2d 31].) This being so, we are left with a statute which applies only to voters, and, thus, one which results in an arbitrary classification. If a voter, appellant is a member of the class discriminated against, and may claim protection against such governmental action. In so doing, appellant asserts his own right to freedom from arbitrary classification, he does not rely on the rights of others.
The judgment is reversed and the cause is remanded to the superior court with instructions to issue the peremptory writ of prohibition.
Gibson, C. J., Traynor, J., Schauer, J., McComb, J., Tobriner, J., and Peek, J., concurred.
Elections Code section 12047 reads:
"Every person is guilty of a misdemeanor who writes or causes to be ■written, printed, posted, or distributed any circular, pamphlet, letter, or poster which is designed to injure or defeat any candidate for nomination or election to any public office by reflecting upon his personal character or political action, unless there appears upon the circular, pamphlet, letter, or poster, in a conspicuous place, the name and address. of the printer and either;
"(a) The name and address of the chairman and secretary or the names and addresses of at least two officers of the political or other ■organization issuing it; or
" (b) The name and residence address, with the street and number, if any, of some voter of this State, who is responsible for it. ’ ’
The First Amendment provides: ' ‘ Congress shall make no law ... abridging the freedom of speech, or of the press;___” These freedoms are ‘ ‘ secured against state invasion by the Fourteenth Amendment of the Constitution. ’’ (Schneider v. State, 308 U.S. 147, 154 [60 S.Ct. 146, 84 L.Ed. 155, 161]; see the analysis of the authorities in Gibson v. Florida Legislative Com., 372 U.S. 539, 560, n. 2 [83 S.Ct. 889, 9 L.Ed.2d 929, 943] (concurring opinion).)
"Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.” (Cal. Const., art. I, §9.)
This objective is the "apparent purpose of the 'Purity of Elections’ Law.” Report, Subcommittee on Purity of Election Laws, Assembly Journal, 1953 Reg. Sess., vol. 1, p. 541
Although “candidate” is not defined, it should be construed in light of the policy favoring a construction which avoids constitutional doubts and in light of the fact that the major evil with which the statute is concerned is the smear attack on the eve of the election. A statute impinging on the right of free speech should be construed no more broadly than is absolutely necessary to accomplish its purposes. We need not now define “candidate” since we hold that the statute is invalid on other grounds.
Again, since we hold the statute void on other grounds, we need not define with precision this distinction. The statute was not intended to inhibit writings which are chiefly an expression of ideas but instead was aimed at writings designed primarily to injure candidates by personal attacks rather than impersonal criticism of their views or official conduct. While there are, admittedly, some points at which such a distinction would be difficult to make, it is one which is constitutionally permissible. (Compare the distinction between defamatory speech relating to the private conduct of public officials and that relating to official conduct. See New York Times Co. v. Sullivan, 376 U.S. 254 [84 S.Ct. 710, 737, n. 4, 11 L.Ed.2d 686] (concurring opinion), discussed below.) The phrase “political action,” would have to be construed as including only attacks which reflect upon the personal character of the candidate. We note, however, that an analogous federal statute, discussed below, is not limited as to type of statement, but rather it prohibits anonymous statements ‘ ‘ relating to ’ ’ candidates for specified offices.
Section 12049 applies to all writings “designed to promote either the passage or defeat of a measure, appearing on the ballot at any election. ’ ’
“The subcommittee finds that the use of false, misleading or irresponsible literature in election campaigns is contrary to the- public interest. ’ ’ (Beport, Subcommittee on Purity of Section Laws, Assembly Journal, 1953 Beg. Sess., vol. 1, p. 539.) , ,
"If the present political campaigns are considered ‘dirty,’ one can only imagine the depths of depravity some candidates would go if this minimal protection did not exist. Hundreds of irresponsible anonymous smear sheets would blossom forth.” (Report, Assembly Interim Committee on Elections and Reapportionment, 1961-62 (Jan. 1963) vol. 7, p. 51, No. 6.)
‘‘As a result of activities connected with the 1962 elections, the Assembly Interim Committee on Elections and Eeapportionment has received a number of complaints regarding the circulation of campaign material and purported endorsements without the names and/or addresses of those responsible for the circulation. ’ ’ (Eeport, Assembly Interim Committee on Elections and Reapportionment, 1961-62 (Jan. 1963) vol. 7, p. 51, No. 6.)
ln Communist Party v. Subversive Activities Control Board, 367 U.S. 1, 97-100 [81 S.Ct. 1357, 6 L.Ed.2d 625, 689-691], decided after Talley, this and other federal disclosure statutes were cited without question. See also the following statutes requiring disclosure: Federal Corrupt Practices Act, 43 Stat. 1070, 2 U.S.C. § 241 et seq., upheld in Burroughs v. United States, 290 U.S. 534 [54 S.Ct. 287, 78 L.Ed. 484]; Federal Regulation of Lobbying Act, 60 Stat. 839, 2 U.S.C. § 261 et seq., upheld in United States v. Harriss, 347 U.S. 612 [74 S.Ct. 808, 98 L.Ed. 989]; Post Office Appropriation Act of 1912, 37 Stat. 553, 39 U.S.C. § 4369, upheld in Lewis Publishing Co. v. Morgan, 229 U.S. 288 [33 S.Ct. 867, 57 L.Ed. 1190].
‘ ‘ Counsel has urged that this ordinance is aimed at providing a way to identify those responsible for fraud, false advertising and libel. Yet the ordinance is in no manner so limited, nor have we been referred to any legislative history indicating such a purpose.” (Talley v. State of California, supra, 362 U.S, 60, 64 [80 S.Ct. 536, 4L.Ed.2d 559, 562].)
Eleetions Code, section 21, defines “voter” as “any elector who is registered under the provisions of this code,” and section 20 defines “elector” as “any person who qualifies under section 1 of article II of the Constitution of this State.” Thus, the term “voter” is narrow and describes a group of constantly changing composition.
Section 12047 was originally enacted in 1901, in language substantially identical to its present terms. Section 12049 was enacted in 1959; and both sections were codified without change in the 1961 reeodification of the Elections Code,