COMMONWEALTH of Pennsylvania, Appellee, v. Frank J. WADZINSKI, Appellant.
Supreme Court of Pennsylvania.
Sept. 22, 1980.
422 A.2d 124
Argued April 14, 1980.
Chester Muroski, Dist. Atty., Michael C. Kostelaba, Asst. Dist. Atty., Wilkes Barre, for appellee.
Before EAGEN, C. J., and O‘BRIEN, ROBERTS, NIX, LARSEN, FLAHERTY and KAUFFMAN, JJ.
OPINION OF THE COURT
KAUFFMAN, Justice.
The issue presented in this appeal is whether Section 1614 of the Pennsylvania Election Code is unconstitutional because it imposes criminal sanctions upon a candidate for public office who publishes a political advertisement referring to an opponent without first complying with prescribed notice requirements.1 For the reasons set forth below, we
I
Appellant, Frank J. Wadzinski, a candidate for mayor of the City of Nanticoke in 1973, made a paid political radio broadcast on the day before the November 6, 1973 election. In the broadcast, appellant referred to his opponent, the incumbent mayor: (1) noting that a charge of perjury was pending against him, (2) criticizing his performance as mayor, and (3) attacking his indebtedness to “special interests.”
Following the election, appellant was convicted of violating Section 1614 for failing to give the requisite advance notice of the contents of his broadcast.3 Appellant thereaft
Because this appeal presents an important and unsettled question of constitutional law, we again granted allocatur.5
II
The Pennsylvania Election Code was enacted to regulate the electoral process so that it is both orderly and fair. The purpose of Section 1614 is to prevent misleading, false, or scandalous campaign charges, published immediately prior to an election, from going unrebutted and thus improperly
Section 1614 thus requires a candidate who intends to publish a political advertisement referring to an opponent during the statutorily defined final days of a campaign to provide the opponent with “reasonable notice” of the contents of the advertisement. Reasonable notice is defined as notice that is sufficient to permit the opponent to publish a reply advertisement contemporaneously with or at the same approximate time as the original. As construed by the Superior Court in a previous constitutional challenge, the notice requirements of Section 1614 are imposed only on original, and not on reply, advertisements that make reference to an opponent. Commonwealth v. Suplee, 255 Pa.Super. 351, 387 A.2d 85 (1978).7
In 1973, a violation of Section 1614 was a summary offense punishable by a fine or, in default thereof, imprisonment.8 Proof of the offense is complete upon a showing that the defendant, without providing the requisite advance
III
In essence, appellant contends that these combined sanctions will deter political expression protected by the First and Fourteenth Amendments.9 In response, the Commonwealth argues that Section 1614 is a content neutral law that operates to encourage, not to deter, the free flow of political information. Accordingly, the Commonwealth contends that the statute is likely to promote First Amendment freedoms. It is further argued that any incidental deterrent effect on protected speech occasioned by Section 1614 is fully justified by the state‘s overriding interest in enabling voters to make a reasoned choice at the polls.10 We disagree with
IV
The constitutional limits upon state regulation of campaign speech have yet to be fully defined. See generally L. Tribe, American Constitutional Law, § 13-26 at 798-99 (1978); Developments in the Law, Elections, 88 Harv. L. Rev. 1111, 1272-1298 (1975). Nevertheless, the basic propositions that govern a First Amendment challenge to such laws are well settled. We begin with the general premise that the First Amendment‘s guarantee of freedom of expression has long been among our most fundamental and carefully guarded rights. “Whatever the explanation for the ascendancy of the First Amendment protection, courts have remained particularly sensitive to government regulation that tends to impinge on expressive freedom.” Alderman v. Philadelphia Housing Authority, 496 F.2d 164, 168 (3d Cir. 1974), cert. denied, 419 U.S. 844, 95 S.Ct. 77, 42 L.Ed.2d 72 (1974). There is practically universal agreement that free discussion of candidates for political office is essential to the
These principles have been forcefully applied by the United States Supreme Court in Mills v. Alabama, 384 U.S. 214, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966), and Miami Herald Publishing Company v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974). Both cases dealt with legislation regulating political speech. In Mills, the state, purportedly in order to prevent the publication of irrefutable, last-minute charges in election campaigns, imposed criminal sanctions for the publication on election day of editorials urging voters to support a particular candidate or position. The statutory ban against such editorials applied without regard to the truth or falsity of the editorial advocacy. The Court, sustaining a First Amendment challenge, held that “no test of reasonableness” could save such a state law from invalidation. 384 U.S. at 220, 86 S.Ct. at 1437. In Tornillo, the state granted a political candidate a statutory right to equal space to answer criticism and attacks on his record made by a newspaper, and made it a misdemeanor for the newspaper to fail to comply. Under this “right to reply” statute, a newspaper could freely criticize any candidate as long as it undertook the burden of publishing the candidate‘s reply.
It follows from the principles and precedents enunciated above that any state law regulating campaign speech requires, in the face of a properly presented First Amendment challenge, the most exacting judicial scrutiny. This is not to say, however, that any attempt to regulate this subject matter is automatically unconstitutional. First, it is clear that not all speech uttered during the course of a political campaign is constitutionally protected. “[T]he use of the known lie as a tool [for political ends] is at once at odds with the premises of a democratic government and with the orderly manner in which economic, social or political change is to be effected.” Garrison v. Louisiana, 379 U.S. 64, 85, 85 S.Ct. 209, 221, 13 L.Ed.2d 125 (1964). Calculated falsehoods delivered during a campaign are accordingly subject to no greater constitutional immunity than such statements receive when made in other contexts. It is thus clear that a state may apply its general laws of defamation to political speech in order to protect the reputational interests of its citizens so long as such laws comport with the “actual malice” standard enunciated by the United States Supreme Court in New York Times Company v. Sullivan, supra. See Ocala Star-Banner Co. v. Damron, 401 U.S. 295, 91 S.Ct. 628, 28 L.Ed.2d 57 (1971); Monitor Patriot Co. v. Roy, supra. Likewise, state regulation whose scope is limited to false campaign statements knowingly or recklessly made may be sustained. New York Times Company v. Sullivan, supra. See Vanasco v. Schwartz, 401 F.Supp. 87 (E.D.N.Y.1975), summarily affirmed, 423 U.S. 1041, 96 S.Ct. 763, 46 L.Ed.2d 630 (1976). See generally Developments in the Law, Elections, supra, 88 Harv. L. Rev. at 1279-80.
Further, it is clear that some regulation of campaign speech designed to protect other than reputational interests may be sustained. For example, in Buckley v. Valeo, supra, federal statutory limitations on political contributions and requirements that candidates disclose the sources of their campaign funding were sustained against First Amendment challenges. The Court rejected the argument that these limitations and requirements tended to reduce the quantity of political expression and to chill the freedom of political association. Buckley thus teaches that the governmental interests in ensuring that the electorate is fully informed and in preventing the corruption of the political process may in limited instances be sufficiently compelling to justify narrowly tailored laws necessary to further those interests, even though such legislation may have an incidental impact upon First Amendment freedoms.11 We hasten to add, however, that these interests will not justify any law that places a substantial burden on protected political speech. Thus, even though Section 1614 was intended to further the goal of election reform recog-
V
The Commonwealth argues that Section 1614 places no more than an incidental burden on expression protected by the First Amendment, since it imposes upon the political speaker a mere requirement that he give advance notice to his opponent of the contents of covered political communications. Accordingly, the Commonwealth contends that Section 1614 should be deemed valid under the well recognized rule that the state may adopt reasonable time, place, and manner regulations that do not discriminate among speakers or ideas in order to further an important governmental interest. See Erznoznik v. City of Jacksonville, 422 U.S. 205, 209, 95 S.Ct. 2268, 2272, 45 L.Ed.2d 125 (1975). We disagree.
Unlike valid time, place, and manner regulations, Section 1614 is likely to inhibit substantially the decisions of political candidates regarding the content and timing of their final communications to the electorate immediately before the election. For example, the notice required by Section 1614 is, as indicated earlier, notice by registered mail sufficient to permit the opponent to publish a contemporaneous response in the same medium. Given a situation in which during the closing days of the campaign a candidate discovers material information regarding his opponent, constraints imposed by media lead times (the time necessary for the actual scheduling and preparation of the publication or broadcast) would severely limit the candidate‘s ability to disseminate the information. If, in addition to these constraints, the candidate is required under penalty of post-
Section 1614 operates to chill speech in yet another way. Suppose a candidate has become clearly identified in the public mind with a particular political position. Suppose further that in the final hours of the campaign, when it is impossible to provide the requisite notice, his opponent wishes to publish an advertisement attacking the validity of this view. A counseled candidate might well be advised, in the face of the broad interdiction of Section 1614 requiring advance notice of “any [original] advertisement referring to an opposing candidate for the same office...“, that the issue-oriented advertisement would be covered by the statute. Given this advice, which under the literal wording of the statute is not frivolous, the cautious candidate might decide to either abandon the proposed advertisement or reword it in an effort to excise any implicit reference to his opponent‘s views. In this context, Section 1614 operates to censor the content of primarily ideological communications or to suppress them altogether.
In addition, we note that although advance notice requirements generally may be reviewable under the time, place and manner doctrine, this analysis totally fails to account for the practical operation of Section 1614. First, although the statute is content neutral in that it applies
From the foregoing, it is readily apparent that the broad sweep of the Section 1614 notice requirement places a substantial burden on the candidate‘s ability to engage in protected political discourse. Further, the inhibitory effect of that requirement will in many cases work directly counter to the governmental interest in providing voter access to accurate information about candidates and to robust debate on the issues. In summary, even a cursory look at the statute‘s probable operation demonstrates that its potential for suppressing vital last-minute political expression is equally as grave as that considered in Mills v. Alabama, supra. It follows from Mills that since the governmental interest asserted in support of the statute, although a legitimate and important one, is inadequate to justify the substantial burden imposed on protected speech, the statute must fall.
The order of the Superior Court is reversed.
ROBERTS, J., filed a concurring opinion.
NIX, J., filed a dissenting opinion.
I agree with the majority that section 1614 of the Election Code is constitutionally infirm. I disagree, however, with the majority‘s suggestion that, under Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), constitutional limitations on political speech may be imposed. Buckley did reject a free speech challenge to provisions of the federal election laws placing limits upon contributions to candidates or political committees. It did so, however, only because the limits worked “only a marginal restriction upon the contributor‘s ability to engage in free communication.” 424 U.S. at 620-21, 96 S.Ct. at 635. Indeed, Buckley struck down provisions of the same laws placing limitations upon expenditures “relative to a clearly identified candidate” and on candidates’ individual spending. The Court concluded that, unlike the contribution laws, expenditure provisions restrict the communication of political thought and thus “limit political expression ‘at the core of our electoral process and of the First Amendment freedoms.’ Williams v. Rhodes, 393 U.S. 23, 32, 89 S.Ct. 5, 11, 21 L.Ed.2d 24 (1968).” 424 U.S. at 39, 96 S.Ct. at 644. Thus Buckley casts grave doubt on the constitutionality of any limitation of political speech. See also Mills v. Alabama, 384 U.S. 214, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966).
NIX, Justice, dissenting.
I remain unconvinced that the statute in question1 offends the protection afforded political speech by the First and Fourteenth Amendments to the Constitution of the United States.
I.
In determining the constitutionality of a statute, we may presume that the General Assembly of the Commonwealth
The appeal before us is a facial challenge to the regulatory statute which requires adequate notice by registered mail to a political opponent when a candidate for public office places an advertisement referring to the political opponent with a television or radio broadcasting station, newspaper or periodical, to be broadcast or published within forty-eight hours immediately prior to an election or published in a weekly newspaper or periodical during the eight days immediately prior to an election. As was stated by our Superior Court in this case, Commonwealth v. Wadzinski, 266 Pa.Super. 56, 403 A.2d 91 (1979):
The avowed purpose of this statute is to prevent media presentation of one candidate‘s, or his party‘s, views of the opponent, by way of advertisement, within that crucial period immediately before an election, without notice so that the opponent does not have time to respond. In this era of increased spending on political advertisements, the obvious goal is to remove the disadvantageous and unfair results possible through a last minute, one-sided “smear” campaign. In what might be referred to as a battle of media advertisements, under this statue the opposing candidate must be forewarned and given the chance to answer the ads of the other side. (Emphasis added)
The majority cites Pa.Legis.J. § 1328-30 (daily ed. May 9, 1972) for its finding that the “purpose of Section 1614 is to prevent misleading, false or scandalous campaign charges, published immediately prior to an election, from going unrebutted and thus improperly swaying the result of the election.” The majority fails to recognize that that articulation
The majority today has chosen to ignore its duty3 to sustain the constitutionality of the statute by giving it a narrowing construction. The majority has also chosen to ignore the guidelines of the Supreme Court. In United States v. Thirty-Seven Photographs, 402 U.S. 363, 369, 91 S.Ct. 1400, 1404, 28 L.Ed.2d 822 (1971) the Court said:
“[w]hen the validity of an act of Congress is drawn into question, and ... a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598 (1932).
Although the general rule controlling standing to challenge the constitutionality of statutes has some exceptions, one exception applicable in the area of free speech is overbreadth of the statute.4 The overbreadth doctrine should be
Overbreadth scrutiny should not be rigid when examining a statute that regulates conduct in the shadow of the First Amendment by doing so in a neutral, noncensorial manner, for facial overbreadth adjudication attenuates as the behavior involved moves from “pure speech” toward conduct. Broadrick v. Oklahoma, 413 U.S. at 614, 93 S.Ct. at 2917. The majority opinion, ante at 42, n.10, finds that Section 1614 “is not concerned with the regulation of conduct ...” This important finding is preemptorily made without analysis of Section 1614 which is not addressed to speeches, per se. It is not a “pure speech” statute. It puts a condition precedent to the “plac[ing of] an advertisement referring to
II.
We recognize that a determination of a facial challenge is of no little difficulty. The majority concedes some speech is not constitutionally protected. Knowing and reckless falsity is accorded no greater constitutional immunity when made in a political campaign than when made under other circumstances. Section 1614 proscribes such speech if coupled with proscribed conduct; i. e., if placed in an advertisement and adequate notice is not given the besmirched opponent. Criminal sanctions are applied if the section is disregarded. The interest in deterring last-minute falsity so as not to deceive the voters and thereby aid the preservation of the integrity of the electoral process is an interest of highest importance. Cf. United States v. Automobile Workers, supra. Such deterrence is also a furtherance of the high interest of preserving public confidence in government by democratic process. Cf. United States Civil Service Commission v. Letter Carriers, supra. “No institution is more central to the United States’ system of representative democracy than the election.” Developments in the Law, Elections, 88 Harv. L. Rev. 1111, 1114 (1975). It transcends “the preferred position of freedom of speech”5 which in the
The third possibility advanced is also unsubstantial. An attack upon an ideological or political position involving the opponent does not necessitate such last-minute decision making as to find the notice requirement heavily burdensome because of media lead time restraints. Employment of correct statutory interpretation procedure, acceptance of the Supreme Court‘s guidelines in facial challenges, recognition of the true purpose of Section 1614, and the primacy of the state‘s interest in preservation of the integrity of the election process in maintaining a democratic system of government obviates the spurious abridgments set forth by the majority.
This case, involving freedom of speech rather than freedom of the press, is not controlled by Mills v. Alabama, 384 U.S. 214, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966), nor by Miami Herald Publishing Company v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974). Both Mills and Tornillo were classified freedom of the press cases concerned with the liberty to disseminate expression broadly. The Speech Clause “may be viewed as a protection of the liberty to express ideas and beliefs.” First National Bank v. Bellotti, 435 U.S. 765, 800, 98 S.Ct. 1407, 1428, 55 L.Ed.2d 707 (1978), citing Lovell v. Griffin, 303 U.S. 444, 452, 58 S.Ct. 666, 669, 82 L.Ed. 949 (1938). While Chief Justice Burger, concurring in Bellotti, says the Press Clause is not confined to newspapers and periodicals, Id. at 801, 98 S.Ct. at 1428, the Press Clause is not redundant. It refers to a liberty “complementary to and a natural extension of the Speech Clause liberty“, Id. at 800, 98 S.Ct. at 1428. In the instant case protection of the Press Clause was not argued nor invoked as the constitutional right being abridged. Obviously, a facial challenge to a statute charging overbreadth in violation of the First Amendment protection of freedom of speech cannot be sustained or controlled by cases turning on issues arising from the protection afforded freedom of the press, a different if not greater or lesser liberty.
Finally, we turn to Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). Avoiding the cautioned pitfall of mechanical jurisprudence, we believe the state‘s subordinating compelling interest in deterring campaign falsity so as to preserve the integrity of the election process in order to maintain a democratic government overrides such limitations of speech as may incidentally occur through sustaining Section 1614 assuming arguendo, the statute did limit protected speech and require scrutiny. Buckley struck down provisions of the federal election laws which limited expenditures “relative to a clearly defined candidate” and limited candidates’ individual spending because the limitations impermissibly restricted the right of individuals to speak their
The limitations of speech and advertisement here are not so substantial as to be suppressive. The condition precedent of adequate notice to the opponent in this case, like the limitations upon political contributions in Buckley, entail (if any) a much lesser restriction upon the individual‘s ability to engage in free communication than expenditure limitations. Buckley, supra, at 20-23, 96 S.Ct. at 635-36. Last-minute campaign speeches are not proscribed nor limited incidentally. Only the conduct of placing an advertisement is regulated to require giving notice to the opponent.
I dissent.