403 A.2d 91 | Pa. Super. Ct. | 1979
Lead Opinion
By our Opinion in this case, filed at 239 Pa.Super. 76, 361 A.2d 790 (1976), we affirmed the Order of the Court of Common Pleas below denying relief sought pursuant to appellant’s petition for writ of certiorari directed to that court from a magistrate’s judgment. We did not reach appellant’s allegation that § 1614 of the “Election Code”, Act of 1937, June 3, P.L. 1333, Art. XVI, added 1972, Dec.
The challenged statute is as follows:
(a) No candidate for public office, or political committee or party acting on his behalf, shall place any advertisement referring to an opposing candidate for the same office which is to be broadcast or published during the 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, with a television or radio broadcasting station, newspaper or periodical, unless he has first given a copy of the material to appear or be used in the advertisement and reasonable notice to the opposing candidate and the County Board of Educations of the county where the advertisement is to be placed in sufficient time for a reply advertisement to be published or broadcast at the same approximate time or in the same issue of the publication or on the same radio or television broadcast the original advertisement and prior to the election in question.
Section 3234 goes on to detail how notice shall be given and what penalties may be rendered for noncompliance. Appellant argues that the statute is overbroad and vague in that it provides a criminal penalty for references to an opposing candidate and is not limited to types of advertisements. Further, he calls the provision a prior restraint of free expression in contravention of the First and Fourteenth Amendments. An equal protection argument is also raised in that appellant posits that those candidates in urban areas with more ready and diverse forms of media coverage may
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 statute the opposing candidate must be forewarned and given the chance to answer the ads of the other side.
There is a small body of law, stemming in this Commonwealth at least from Commonwealth v. Evans, 156 Pa.Super. 321, 327, 40 A.2d 137, 139 (1945), allocatur refused, holding that it is constitutional for the legislature, by its police power, to “promote clean campaigning and pure elections by regulations that have a real and substantial relation to the object to be attained, and which merely result in such a limited restraint upon the activities of candidates for public office, and of their advocates, as may be deemed necessary to prevent the electorate from being unduly influenced by prejudicial matter . . . .” The “object to be attained” by the section of the “Election Code”, supra, held constitutional in Evans, id., prohibited distribution of anonymous political matter. Other “goals to be attained”, held constitutional, are (a) the prohibition against publication of matter reflecting upon the character or actions of an opposing candidate unless with the publication there be noted who is responsible for it, Commonwealth v. Acquaviva, 187 Pa.Super. 550, 145 A.2d 407 (1958) allocatur refused, referring to § 415 of the former “Penal Code” (18 P.S. § 4415); (b) the prevention of “macing”, Commonwealth v. Zeger, 200 Pa.Super. 92, 186 A.2d 922 (1962), referring to the Act of 1939,
We consider that the goal to be attained by the statute here under challenge, is validly a part of the legislative prerogative under its police power. It is a very limited restraint of free speech, applicable to those already and by their choice in the public arena as candidates. It is not unjust or unconstitutional to hold them to this duty of disclosure to their opposition, and to punish for violations thereof, when the end sought is clean, fair campaigning, a laudable goal for general conduct. We hold 25 P.S. § 3234 constitutional.
Affirmed.
. The lower court had concluded, as we did in the former appeal, that the issue of constitutionality was not reviewable upon a writ of certiorari. Nevertheless it went on to find that the within-challenged statute is constitutional.
Dissenting Opinion
dissenting:
In Monitor Patriot Co. v. Roy, 401 U.S. 265, 272, 91 S.Ct. 621, 625, 28 L.Ed.2d 35 (1971), the Supreme Court observed that “. . .it can hardly be doubted that the constitutional guarantee [to free speech] has its fullest and most urgent application precisely to the conduct of campaigns for political office.” The particular importance of protecting vigorous and unfettered political debate has been repeatedly emphasized. See Buckley v. Valleo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976); Mills v. Alabama, 384 U.S. 214, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966); New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Hence, any limitation of speech in this area can be justified only by a compelling state interest. N.A.A.C.P. v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963).
In the case at bar, the Commonwealth undeniably has a compelling interest: preservation of the integrity of the
Having recognized these favorable aspects of the statute, however, I nonetheless conclude that it violates the First Amendment.
As a preliminary matter, it is worth noting that it is far from clear that it is within the state’s power to regulate speech at all in this area. In Mills v. Alabama, supra, the Supreme Court held unconstitutional an Alabama statute that prohibited newspapers from publishing election day editorials urging voters to vote in a particular way. Although it did not explicitly discuss the point, the Court seemed to assume that no state interest could justify the state’s abridgement of speech at a crucial stage in a political campaign.
First, although the statute does not on its face prohibit speech, in certain instances it will operate to bar completely
Second, the statute suffers from the same flaw that invalidated the statute in Mills v. Alabama, supra.
In Mills, Alabama, ostensibly in order to prevent the making of irrefutable, last-minute charges in election campaigns, prohibited the publication on election day of editorials urging voters to vote a particular way. The Supreme Court ruled that even if it assumed that the statute had a permissible purpose, the statute was nonetheless unconstitutional because it abridged speech without fulfilling the state’s purpose. Specifically, the Court found that the statute failed to meet its goal of protecting the electorate from “confusive last-minute charges and countercharges” because it allowed the making of such charges until election day, but then imposed criminal penalties on anyone who attempted to refute such charges on election day. 384 U.S. 220, 86 S.Ct.
The statute here fails to pass the Mills test of effectiveness. The notice requirement of the statute has been construed not to apply to “reply” ads under the act.
This difficulty may not be avoided by holding that those portions of “reply” ads that raise new matter or in some way go beyond the proper scope of a reply are subject to the notice requirement of the statute, for then candidates would be chilled in the exercise of their First Amendment rights. There could be no clear boundary to mark what would be considered a reply ad, and what would be considered as more than a reply and so subject to the notice requirement. If, for instance, A gives notice and places an ad attacking B’s integrity, and B replies not by defending himself but by launching a counterattack on A’s integrity, is this a reply ad that is exempt from the notice requirement, or must B notify A of his ad? More to the point, how is B to determine
I would reverse the court below.
. After noting the state’s asserted interest in protecting the electoral process, the Court prefaced its holding with the caveat, “. . . even if [this argument] were relevant to the constitutionality of the law . . ” 384 U.S. at 220, 86 S.Ct. at 1437. The permissibility of state regulation in this area would therefore at best seem to be problematic.
. In Commonwealth v. Suplee, 255 Pa.Super. 351, 387 A.2d 85 (1978) we noted that to require replying candidates to give notice of their ads would result in an infinite series of notices and counternotices under the statute, and that the legislature did not intend such an absurd and unwieldly system.